Ramzani vs Abad Shah

Surinder Singh, J.—The plaintiff-respondent filed the present suit for declaration and injunction and, in the alternative, for possession of half-share of the agricultural Land in dispute, on the allegations that one Ashag Hussain was the non-occupancy tenant of this land. He entered into a Karewa marriage with one Smt. Shakuri, but no child was born out of this union. The plaintiff claimed that he is entirtled to succeed to the estate left by his grandfather Ashag Hussain in view of the fact that he was the son of Imdad Ali alias Bedal while the defendant Ramzani was a Pichhlag who came with Smt. Shakuri at the time of the entering into the Karewa marriage with Ashag Hussain and as such has no title whatsoever to this property. It was further asserted that the defendant in collusion with the Halqa Patwari got a mutation of non-occupancy tenant sanctioned in this favour in respect of one-half share of the land, when in fact he was not in possession of it. The suit was resisted by the defendant inter alia on ground that the plaintiff is not the grand-son of Ashag Hussain and, as such, has no locus standi to file the suit. A plea of relinquishment was also taken.

On the pleadings of the parties, the trial Court framed the following issues :--

Whether the plaintiff is the grandson of Ashag Hussain and son of Imdad Ali alias Badal ?

Whether Ramzani is the son of Ashiq Hussain ?

Whether Ashiq Hussain and the plaintiff are governed by custom in matters of succession ? If so, what that custom is ?

Whether the suit is in time ?

Whether the plaintiff is in possession of the suit property ?

If issue No. 5 is not proved whether the suit land is in possession of the defendant ?

Whether the plaintiff had relinquished his right in the land in suit?

Relief.

The trial court dismissed the plaintiff''s suit as under issue No. 1 it came to the conclusion that he is not the grand-son of Ashiq Hussain. On appeal, this finding of the trial court was reversed by the lower appellate Court. As a result thereof, the plaintiff''s suit was decreed. Feeling aggrieved with the same, the defendant has come up in second appeal to this Court.

Earlier, defendant Famzani filed a suit under S. 77 of the Punjab Tenancy Act in the Court of Assistant Collector 1st Grade, Nuh, against Abad Shad son of Badal and others, for declaring him as an occupancy-tenant of the suit land. In that suit, ore of the issues was "whether Abad Shah son of Badal was the grandson of Ashiq Hussain." The learned Assistant Collector, after discussing the evidence, decided that issue in the negative, i.e., against Abad Shah. The judgment is dated 31st July, 1970, Exhibit D-2. The trial Court, on the basis of this judgment, came to the conclusion that it operated as res-judicata between the parties and, therefore, issue No. 1 was decided against the plaintiff. The lower appellate court came to the conclusion that the present suit is not barred by the principles of res-judicata as held by the trial court because the jurisdiction of the Assistant Collector u/s 77 of the Punjab Tenancy Act was of a limited nature. Any decision given therein as to holds that the plaintiff was the grandson of Ashiq Hussain cannot operate as re-judicata between the parties. It was only the civil court which was competent to adjudicate finally on this matter. On the documentary evidence produced on the record on behalf of the parties, the lower appellate court found as a fact that the plaintiff is the grand son of Ashiq Hussain and was entitled to the estate left by the deceased.

The only contention raised on behalf of the appellant is that the said judgment (Exhibit D-2) delivered by the Assistant Collector u/s 77 of the Punjab Tenancy Act operates as res judicata. According to the Learned Counsel, there being a specific issue therein as to whether Abad Shah son of Badal was the grand son of Ashiq Hussain, the finding given by the Assistant Collector is binding on the parties. In support of this contention, he referred to AIR 1939 133 (Privy Council) .

After hearing the Learned Counsel for the parties I do not find any merit in this appeal. The jurisdiction of the Assistant Collector u/s 77 of the Punjab Tenancy Act is of a very limited nature. Any other finding given by him cannot operate as res judicata between the parties. If incidentally the Assistant Collector has decided the question of relationship of the plaintiff with Ashiq Hussain, the same is not binding on the civil Court. Reference in this respect may be made to the Full Bench decision of this Court in Regular Second Appeal No.1821 of 1978 (Amar Singh v. Dalip R.S.A. 1821 of 1978) decided on March 12, 1981. It has been observed by the lower appellate court that the finding of the Revenue authorities in the judgment Exhibit D-2 is to be brushed aside for all intents and purposes as it does not constitute res judicata as held by the trial Court. If this part of the evidence produced by the defendant-appellant is ignored and brushed aside, no rebutal whatsoever is left on behalf of the defendant in this case. In this view of the matter, there is no illegality or infirmity in the judgment of the lower appellate Court as to be interferred with in second appeal. Consequently, the appeal fails and is dismissed with costs.