Nagina Singh vs Gurdip Singh and others

G.C. Mital, J.

Smt. Bhago was owner of agricultural land measuring 87 Kanals 8 Marlas. Nagina Singh and Hazura Singh were her tenantsatwill since 1958. According to the revenue records, since Rabi 1962, the aforesaid tenants were shown in possession of agricultural land, till Rabi 1963. In Kharif 1963 Pal Singh son of Nagina Singh tenant was shown to be in possession. Thereafter, consolidation took place, and in lieu of the land owned by Smt. Bhago, new Khasra numbers measuring about 87 Kanals were allotted to her. In Jamabandi of the year 196465 which came into being after consolidation, Smt Bhago was shown in possession as owner of the land. Nagina Singh and Hazura Singh tenants applied for correction of the Khasra Girdawaris from 196566 to date in July, 1969 on the plea that they were in occupation of the land as tenants and the name of Smt. Bhago was wrongly shown therein. However, the tenants remained unsuccessful in those proceedings. On 14th July, 1969 Smt. Bhago mortgaged with possession the land owned by her with Hardial Singh and Jit Singh. Those mortgagees tried to disturb the possession of the tenants. They filed a civil suit for injunction and applied for grant of temporary injunction. The trial Court granted temporary injunction but on mortgagees'' appeal, order of status quo was made. On 3rd June, 1971, the tenants are alleged to have been actually dispossessed by the mortgagees and, therefore, they withdrew their suit on 14th June, 1971 vide Exhibit P23. On 16th August, 1971, the tenants filed an application under section 43 of the Pepsu Tenancy and Agricultural Lands Act, 1955 (hereinafter referred to as ''the Act''), for restoration of possession. At the same time, they were advised to take proceedings in civil Court for violation of the order of status quo. In those proceedings the civil Court held that after Rabi 1973 the tenants were not in possession and, hence there was no violation of the order of status quo.

The Collector, who decided the application under section 43 of the Act, by order dated 30th September, 1974 (Exhibit P. 28) found that the tenants were in possession till Rabi 1963 and found the mortgagees to be in possession from 1969 onwards and since the tenenacy had not been got determined, it was ordered that the possession of the land be restored to the tenants. The mortgagees went up in appeal before the Commissioner and their appeal was allowed, but on tenants'' revision the learned Financial Commissioner by order dated 19th April, 1979 (Exhibit P. 20) allowed the revision and restored the order of the Collector. Before the order of the Financial Commissioner was passed, Smt Bhago, vide sale deeds Exhibits P. 1 and P. 2 dated 4th March, 1977, sold her rights in the land to the sons of the mortgagees.

After the order of the Financial Commissioner, when the Revenue Authorities sought to implement that order to restore possession of land to the tenants, the aforesaid vendees filed a civil suit for declaration that they are owners in possession of the land and that Nagina Singh and Hazura Singh are not their tenants and that orders of the Financial Commissioner and Collector are illegal, void, ineffective, without jurisdiction and sought permanent injunction to restrain the alleged tenants from dispossessing them from the land in dispute on the basis of the said orders. They also filed an application for grant of temporary injunction during the pendency of the suit. That matter came up to this Court and it was held that it was not a case in which injunction should be granted to restrain the compliance of the orders passed by the Financial Commissioner and the Collector. That judgment is Nagina Singh v. Gurdeep Singh, 1980 PLJ 534. When the suit proceeded, the alleged tenants pleaded that they were tenants and continued to be in possession till 3rd June, 1971, when they were dispossessed by the mortgagees. Reliance was placed on the orders of the Financial Commissioner and the Collector. However, after the refusal of the temporary injunction by this Court, the orders of the Financial Commissioner and the Collector were implemented and on 11th November, 1980 the tenants got possession. Thereafter the plaintiffs amended the plaint to seek relief of possession on the pleas already raised. The two Courts below decreed the suit for possession and the alleged tenants came to this Court in this Regular Second Appeal. While admitting the R.S.A., the execution of the decree for possession was stayed on the condition that the appellants should furnish security for mesne profits to the satisfaction of the Executing Court within two months. The appellants did not furnish security within two months and thereafter execution was taken out and they were dispossessed on 21st January, 1984. After dispossession, an application was filed in this Court for restoration of possession, which was dismissed. On tenants'' appeal to the Supreme Court order for restoration of possession was passed. In pursuance of that order, possession of the land in dispute has been restored to the tenants.

After hearing the learned counsel for the parties and on consideration of the entire material on record, I am of the view that this appeal deserves to succeed. The first fundamental point for consideration is whether the possession of the alleged tenants is unauthorised or without any right and if that is so only then a decree for possession can be granted. According to the revenue entries right from 1985 till Rabi 1963, the appellants are shown to be in possession of the land in dispute as tenants atwill under Smt. Bhago, the original owner, on payments of Batai. At no point of time during litigation, either with Smt. Bhago or with her mortgagees or her vendees, it was ever disputed by them that the appellants were not in possession as tenants from 1958 till Rabi 1963. On the other hand the admitted position is that the appellants were tenants of Smt. Bhago till consolidation took place. It is the appellants'' case that after consolidation, they came into possession of the land allotted. But apart from the oral evidence and the Nahri Khasra Girdawaris, the Revenue Khasra Girdawaris and the Jamabandis are against the appellants. From 1964 65 onwards till mortgage Smt. Bhago is shown to be in possession as owner and, thereafter, the mortgagees are shown to be in possession. The tenancy rights can be terminated either by a contract or by one of the modes provided in law. It is nobody''s case if proceedings were ever taken to eject the tenants. It is also nobody''s case that the parties agreed to terminate the lease or that the tenants surrendered their rights under the lease. The plea of surrender of tenancy was not raised in any of the litigations which started from the time Smt. Bhago, the original owner. However, in the impugned judgments, the Courts below have given a finding beyond pleadings that the tenants surrendered the tenancy. It is well established rule that no evidence can be looked into beyond pleadings or on a matter which is not at issue between the parties. Here, we have a case in which there is neither any pleadings in this behalf nor an issue and even the plaintiffs or their witnesses have not stated while appearing as witnesses, that the tenants surrendered their tenancy. Hence the inference, which the Courts below have drawn regarding surrender of tenancy, is not only against pleadings and the issues but is also not supported by any evidence on the record. There can be no implied surrender because from the very beginning the case of the tenants is that they are in possession but for that entry of their possession in the revenue records, they were not being heard. However, if we were to place reliance on Nahri Girdawaris Exhibit D.1 on record, they show the possession of the tenants.

Putting the case at best in favour of the plaintiffs, it is their own case that after Rabi 1963 the tenants were not shown to be in possession. In the absence of ejectment order or surrender, the tenants would have continued in possession. The only problem arose because of consolidation, which took place in 196364. It is settled rule that the Consolidation Authorities have to give possession to the tenants of the land allotted to the tenants'' landlord. May be, that some mistake crept in during the consolidation proceedings and the possession was not given to the tenants but was given to Smt. Bhago. If that wrong had been corrected and the tenants were put back in possession could the vendees seek possession from them ? The answer would be no. Reason being that possession of the tenants would be as a matter of their own right under Smt. Bhago, and, then under the mortgagees, and now it will be considered under the mortgagees/vendees, because they are father and sons. Unless the plaintiffs show the possession of the tenants to be unauthorised or without any right, the suit for possession cannot be decreed. On this basis alone I am of the view that the judgments and decrees of the Courts below deserve to be set aside and suit for possession deserves to be dismissed.

In order to get back possession of the land, as tenants they filed application under section 43 of the Act before the Collector and since it was alleged that the mortgagees had dispossessed them, they were impleaded as parties in those proceedings. The mortgagees had stepped into possession on the basis of delivery of possession to them by Smt. Bhago under the mortgage deed with possession. In those proceedings, it was never pleaded that the Consolidation Authorities passed orders for delivery of possession to Smt. Bhago and that is why, Smt. Bhago was in legal possession till mortgage and she delivered possession to the mortgagees under the mortgage deed. On the contrary, the plea was that the applicants were never tenants and never came in possession of the land. The Collector considered that matter and came to the conclusion that the applicants were proved to be tenants in possession till Rabi 1963, and, thereafter the evidence from Rabi 1963 to 1969 was not brought on record by either of the parties and from 1969 onwards, according to the revenue records, the possession was of the mortgagees. Since the applicants were found to be tenants in possession upto Rabi 1963 and there was no order of ejectment against them and no plea of surrender was raised, the order of restoration of possession to the tenants was passed, which order was restored by the Financial Commissioner. As already stated, in those proceedings, neither there was any stand of the mortgagees nor any material was produced on the record that the Consolidated Authorities gave possession to Smt Bhago, which orders remained unchallenged, and, therefore, her possession could not be considered wrongful and consequently, her mortgagees'' possession could not be considered wrongful. If these facts had been placed before the Collector, the matter would have been considered in that light. The very tenancy was disputed and after finding that the applicants were proved to be tenants and in possession till Rabi 1963, order for restoration of possession was passed. In the present suit, those orders are challenged as being without jurisdiction. The two Courts below have set aside these orders on the premises that in case during consolidation proceedings possession is restored to the owner instead of tenants the possession of owner cannot be said to be illegal and the remedy of the tenant would be to go to the Consolidation Authorities for restoration of possession. In coming to the conclusion reliance was placed on Hartej Bahadur Singh v. The State of Punjab and others, 1964 PLJ 72, a Division Bench judgment of this Court. The aforesaid finding recorded by the lower appellate Court has further sought to be supported by counsel for the plaintiffs by placing reliance on two more decisions reported in Newal v. The Financial Commissioner, Punjab and others, 1969 PLJ 196 (S.B.), and Nahar Singh v. Mohan Lal, 1971 PLJ 328 (D.B.). In order to appreciate the argument reference be made to certain provisions of the Act. Section 43 of the Act is enabling provision to restore the possession to various persons by a summary procedure if they are wrongfully or unauthorisedly dispossessed. Although inquiries have to be summary, yet the matter has been entrusted for decision to the Collector and not to Assistant Collector, who has the jurisdiction for other matters under the Act. Section 45 of the Act prescribes that the Collector shall have such powers and follow such procedures as may be prescribed. Section 47 bars the jurisdiction of Civil Court, which is in the following terms :

"47. (1) No Civil Court shall have jurisdiction to settle, decide or deal with any matter which is under the Act required to be settled, decided or dealt with by the Financial Commissioner, the Collector or the prescribed authority.

(2) No order of the Financial Commissioner, the Commissioner, the Collector or the prescribed authority made under or in pursuance of this Act shall be called in question in any Court."

The order of the Collector is appealable to Commissioner and further appealable or revisable by the Financial Commissioner. Apparently, the matters covered under the Act would not be gone into by the Civil Courts in view of section 47 (1) of the Act and the orders passed by the authorities under the Act shall not be called in question in any Court by virtue of section 47(2) of the Act. All the same, it may be urged that if certain jurisdictional facts are established, only then the authorities under the Act can pass orders and such orders may not be called in question in Civil Court but if the jurisdictional facts are found to be wrong then the Civil Court will have the jurisdiction to hold the orders passed under the Act to be without jurisdiction. Assuming for the sake of argument that the plaintiffs could seek to challenge the orders of Collector and Financial Commissioner on the aforesaid proposition, it will have to be seen whether the jurisdictional facts existed in the case for restoration of possession or not. As already held above it is not being disputed that the appellants were in possession of the land as tenants till Rabi 1963 and that they did not surrender their tenancy nor were ordered to be ejected by any proceedings, their tenancy rights would continue and as such they would be entitled to possession of the land. Once this finding is given in favour of the appellants it would be a finding of a jurisdictional issue and, therefore, the Collector and the Financial Commissioner were right in ordering restoration of possession of them. Hence Civil Court will have no jurisdiction to entertain the suit because of the bar contained under section 47 of the Act.

Referring to one decision relied upon by the Court below and the two other decisions referred before me but I find it that they are not helpful in deciding this appeal. Hartej Bahadur Singh''s case (supra) and Newal''s case (supra), are cases where against the orders of the Financial Commissioner ordering restoration of possession to tenant against the landowner, the landowner came to the High Court on writ side under Article 226 of the Constitution of India and in writ jurisdiction it was held that the landlord came in possession of the land which was once under the tenant, that delivery to the landowner by the Consolidation Authorities could not be held to be illegal. On that reasoning the order of restoration of possession to tenant was quashed by this Court holding it to be illegal. Every illegal or erroneous order is not without jurisdiction. Both these decisions had already come into existence and, therefore, Smt. Bhago or the mortgagees or the vendees should have challenged the order of the Collector or of the Financial Commissioner under Article 226 of the Constitution of India, but they did not do so. If they had done so, the matter would have been examined. The other distinguishing feature is that if they had come to this Court under Article 226 of the Constitution of India, they would not have succeeded as the fact about delivery of possession to Smt. Bhago by Consolidation Authorities was never raised or put in issue when proceedings started before the Collector under section 43 of the Act. This matter has been agitated for the first time in the suit and that too on the basis of vague pleadings and documents Exhibit P.27 which does not give sufficient indication as to what transpired in consolidation proceedings. Therefore, these two judgments are not helpful to find out whether the Civil Court could sit in judgment in view of bar contained in section 47 of the Act.

In Nahar Singh''s case (supra) against the order in proceedings under section 43 of the Act, a civil suit was filed by the landowner to challenge the orders. There, it was held by the Civil Court that there was a compromise between the landowner and the tenant on the basis of which the tenant was to vacate by a particular date, and, therefore, after that date the tenancy did not exist and the Revenue Courts erred in jurisdiction under section 43 of the Act in ordering restoration of possession by the landowner to the tenant. There, the jurisdictional issue was found against the tenant and in favour of the landowner because the landowner entered into possession after the expiry of the tenancy period. On those facts it was held that the order of the authorities under section 43 of the Act was without jurisdiction. As already noticed in this case there is no compromise, agreement or contract, under which the tenant gave up or agreed to give up his rights under the tenancy. Hence that case is also not helpful. Finding to the contrary recorded by the Courts below on this aspect is reversed and it is held that the plaintiffs have failed to show if the orders passed by the Collector and Commissioner in proceedings under section 43 of the Act are without jurisdiction.

For the reasons recorded above, this appeal is allowed, the judgments and decrees of the two Courts below are set aside and the plaintiff''s suit is dismissed. However, since possession of the land in dispute has already been restored to the appellants, there will be no order to costs.