Shanti Devi and Others vs Tohia and Another

This Regular Second Appeal is directed against the judgment and decree passed by the learned Additional District Judge, Dharamshala, on November 30, 1972. The facts are that on March 14, 1964, one Shri Rattan Lal sold land contained in Khasra Nos. 921/735 and 915 measuring 14-13 Kanals to Respondent Tohia, in this appeal (hereinafter referred to as the Plaintiff) through a registered sale deed for a consideration of Rs. 3000/-. At the time of this sale one Shri Darshnoo alias Darshan Lal, Respondent No. 2 in this appeal (hereinafter referred to as Defendant No. 9) was recorded in possession of the land contained in Khasra No. 921 measuring 10-16 kanals as non-occupancy tenant of ''Kisam B-3'' under the vendor Rattan Lal on payment of l/3rd of Galla-batai as rent. Defendant No. 9 then instituted a suit against the Plaintiff Tohia in May 1964 (Civil Suit No. 155/73/349 of 1964) in the Court of the Senior Sub-Judge, Kangra at Dharamshala, for declaration that he was in possession of the land contained in Khasra No. 921 since the time of his fore-fathers as occupancy tenants and that as such he had become owner with effect from 15-6-1952 being the ''appointed day'' under the provisions of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act (8 of 1953) (hereinafter called as ''the 1953 Act'').

The Plaintiff contested the suit and appears to have taken a number of objections in his written statement including the lack of jurisdiction in the Civil Court, non-joinder of necessary parties and estoppel. He also denied that Defendant No. 9 had become owner of the suit land as asserted by him in the suit. The first three pleas were rejected by the trial Court but the last one which was the subject matter of Issue No. 1 in that suit was accepted and the trial Court held that Defendant No. 9 had not become owner of the suit land and thus dismissed the suit.

The matter was taken up in appeal by the Defendant No. 9 and the appellate Court vide judgment dated June 23, 1966 set aside this finding of the trial Court and held that Defendant No. 9 had been occupancy tenant in respect of the land in his possession since long before the coming into force of the 1953 Act and as such he had become owner of the suit land with effect from the appointed day, that is, 15-6-1952.

Meanwhile, it appears that the original vendor Rattan Lal had died and the Plaintiff then instituted a suit against the Appellant Shanti Devi (widow) and other Appellants (sons of Rattan Lal) No. 2 to 7 (hereinafter referred to as the contesting Defendants) in the Court of Senior Sub-Judge, Kangra at Dharamshala, whereby he sought rescission of contract of sale entered into between the Plaintiff and predecessor-in-interest of the contesting Defendants, Rattan Lal deceased, with regard to the aforesaid land through the registered sale-deed, dated March 16, 1964 and the return of the sale price of Rs. 3000/-and in the alternative for a decree of Rs. 3000/- on account of damages for the breach of covenant of title. It was asserted therein that by virtue of the judgment and decree passed against him by the appellate Court on June 23, 1966, and in favour of Defendant No. 9 whereby the Defendant No. 9 had been declared as owner of the substantial area out of the land which was the subject matter of the sale by Rattan Lal in his favour, namely, 10-14 Kanals; the. Plaintiff was entitled to rescind this contract by virtue of the warranty given by said Rattan Lal in the body of the sale-deed he executed in favour of the Plaintiff that, in case, for any reason whatsoever, the land which was the subject matter of sale went out of the hand of the Plaintiff the person and the property of the vendor Rattan Lal would be liable to repay the sale price of Rs. 3000/- to the Plaintiff. He, therefore, through that suit on the basis of the aforesaid warranty claimed the repayment of sale amount of Rs. 3000/- on the rescission of contract of sale or in the alternative the amount of Rs. 3000/-as damages from the estate of Rattan Lal in the hands of the contesting Defendants. The Defendant No. 9 was impleaded in that suit as such.

The contesting Defendants in their written statement expressed ignorance about the fact that any sale had been executed by Rattan Lal during his life time in favour of the Plaintiff. They further denied that there was any defect in the title of said Rattan Lal qua the land sold to the Plaintiff and asserted that as a matter of fact he was full owner of the property and that the suit that Defendant No. 9 had filed against the Plaintiff was not properly conducted by the Plaintiff, which resulted in a decree against him. They further asserted that in any case they were not bound by this decree that was passed against the Plaintiff and in favour of Defendant No. 9.

It may be noted that the Plaintiff in the body of the plaint had also contended that although the vendor Rattan Lal had agreed to give vacant possession of the land sold in favour of the Plaintiff but he did not do so and in fact he was incapable of handing over the vacant possession of this land since it was in the possession of tenants at the time of sale and the sale transaction was concluded on the misrepresentation of said Rattan Lal which was thus voidable at the instance of the Plaintiff. This assertion was also denied by the contesting Defendants and they averred that the Plaintiff had full knowledge of the fact that at The time of the sale the land in question was in possession of tenants and that since the land was capable of being delivered to the Plaintiff only by way of symbolic possession, the same was duly given by said Rattan Lal to the Plaintiff and as such the question of misrepresentation did not arise.

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

Did Rattan Lal deceased execute a sale deed for Rs. 3000/- on 16-3-1964 representing that he was the absolute owner with full rights of enjoyment on the land sold and had full rights to transfer it ?

Did Rattan Lal agree to return the sale price in case the property goes out of the vendees hands ?

Whether Rs. 3000/- were paid to Rattan Lal as sale price ?

Whether Defendant No. 9 has been declared as occupancy tenant, if so, what is the effect ?

Whether the suit is within time ?

Whether the Plaintiff is entitled to rescind the sale-deed ?

Whether the Plaintiff is estopped by his acts and conduct from bringing the suit ?

Whether the suit is not competent in the present form ?

Relief.

The learned Senior Sub-Judge, then after full trial of the suit gave the following findings vide his judgment and decree dated October 28, 1968:

(1) that the vendor Rattan Lal or his successor-in-interest the contesting Defendants would be bound by the warranty contained in the sale-deed in favour of the Plaintiff dated March 16, 1964, to the extent that they would be liable to refund the sale consideration of Rs. 3000/- to the Plaintiff vendee in case the sale property went out of the hands of the vendee on account of some defect in the title of the vendor Rattan Lal at the time of the impugned sale;

(2) while considering the effect of the decree obtained by Defendant No. 9 against the Plaintiff in the previous suit appeal dated June 23, 1966 (hereinafter referred to as C.A. No. 213 of 1965) by virtue of the judgment of the appellate Court, the copy of which is on the record as Ex. P-6, the learned Senior Sub-Judge found that this decree did not entitle the Plaintiff to lay any claim against the contesting Defendants for refund of sale price or damages since, in the first place, the Court concerned had no jurisdiction to pass such a decree and, in the second place, the contesting Defendants not being the parties to that suit were not bound by the same and were entitled to challenge the validity thereof, in the suit in question;

(3) it was also held by the learned Senior Sub-Judge that under the 1953 Act, Defendant No. 9 had not become the owner of the land in dispute from the appointed day as prescribed therein, that is, June 15, 1952 and in fact even if it is assumed that the Court in the previous suit inter-se Defendant No. 9 and the Plaintiff, had jurisdiction to try the same, the Defendant No. 9 shall be deemed to have become owner only subsequent to the appointed day, that is, on the date when Defendant No. 9 obtained the declaratory decree against the Plaintiff vide judgment of June 23, 1966, (C.A. No. 213 of 1965) Ex. P-6, and after the Plaintiff had become the landlord qua Defendant No. 9 and as such the Plaintiff had no right whatsoever to maintain the present suit against the contesting Defendants and the declaratory decree in favour of Defendant No. 9 also to that extent was defective and illegal;

(4) that Rattan Lal, the original vendor, at the time of sale in favour of the Plaintiff was the owner of the land which was the subject matter of the sale without any defect in his title but the land in suit was at the time of the sale, in the possession of Defendant No. 9 as non-occupancy tenant of Class B-3 which was very well within the knowledge of the Plaintiff and the Plaintiff entered into the sale transaction with full knowledge that the suit land was in possession of Defendant No. 9 as tenant and that only symbolic possession of this land could be delivered to the Plaintiff by said Rattan Lal, which was accordingly delivered to him and as such the Plaintiff could not be allowed to plead that he laboured under misrepresentation on the part of vendor Rattan Lal or that he was entitled to physical possession of this land under the conditions of sale nor could said Rattan Lal or his successors-in-interest be held to be under liability to handover the physical possession of this land to the Plaintiff.

On the basis of these findings, the learned Senior Sub-Judge, dismissed the suit of the Plaintiff.

The Plaintiff challenged these findings of the lower Court in appeal. The learned Additional District Judge, Dharam-shala, then, vide the impugned judgment while disagreeing with these findings of the lower Court held that the judgment in favour of Defendant No. 9 and against the Plaintiff in C.A. No. 213 of 1965 (Ex. P-6) was final and binding on all the parties and it was not proper on the part of the Senior Sub-Judge to sit as an appellate Court over this judgment and decree, (Ex. P-6) and as a consequence thereof since according to this judgment and decree, Defendant No. 9 had become the owner of the land in suit since June 15, 1952 (the appointed day), the vendor Rattan Lal (deceased) had no title to transfer the suit land in favour of the Plaintiff by sale and by virtue of the warranty in the body of the sale-deed that his person and property were liable to refund the sale consideration to the Plaintiff in case the property went out of the hand of the Plaintiff for any reason whatsoever, the estate of Rattan Lal in the hands of the contesting Defendants was liable to refund the sale consideration of Rs. 3000/- to the Plaintiff. It was also held by the learned Additional District Judge that in the body of the sale, it was also categorically undertaken by said Rattan Lal that he would hand over the physical possession of this land to the Plaintiff which condition was not fulfilled by him and as such the sale was voidable at the instance of the Plaintiff. He thus set aside the judgment of the Senior Sub-Judge and while allowing the suit of the Plaintiff passed a decree for Rs. 3000/- in favour of the Plaintiff and against the contesting Defendants with costs and hence the appeal.

I have heard the learned Counsel for the parties and also gone through the record of the case carefully. The first question that arises for determination of this Court is whether the learned Additional District Judge was right in holding that the declaratory decree obtained by Defendant No. 9 against the Plaintiff on June 23, 1966, to the effect that Defendant No. 9 had become owner of the suit land with effect from 15-6-1952 was binding on the contesting Defendants and the trial Court could not hold it as devoid of legality for want of jurisdiction in the Court or that, at the most, if the jurisdiction is conceded to that Court, Defendant No. 9 should be deemed to have acquired proprietary rights only from the date of declaratory decree in his favour, that is, 23-6-1966? After due consideration, I have come to the conclusion that the answer to this poser is clearly in the negative.

It is an admitted fact that at the time when the impugned sale was effected on 16-3-1964 Defendant No. 9 was recorded, qua the suit land, as non-occupancy tenant of B-3 class under the vendor Rattan Lal. In fact the jamabandi of 1960-61 which was attached with this sals deed clearly showed that Defendant No. 9 was in possession of this land as non-occupancy tenant of Class B-3 on payment of l/3rd as Galla-Batai. Then the Plaintiff himself, while in the witness box, he categorically (sic) suited that before the sale transaction was effected into he had enquired from the Patwari and on his enquiry from the Patwari, he was told that while Rattan Lal was owner of the land in suit, the same was in possession of Defendant No. 9 as tenant. Defendant No. 9 then instituted the previous suit (and Civil Appeal No. 213 of 1965) in the civil Court for declaration that he was not non-occupancy tenant of Class B-3 on the suit land but was an occupancy tenant thereon even prior to the ''appointed day'' of 15-6-1952 and as such had become owner thereof on the appointed day. This suit obviously could not be filed in a civil Court as the same was barred by virtue of the provisions of sub-section (3) of section 77 of the Punjab Tenancy Act (hereinafter referred to as the Punjab Tenancy Act), which governed the parties at that time and which reads as under:

(3) The following suits shall be instituted in and heard and determined by Revenue Courts, and no other Courts shall take cognizance of any dispute or matter with respect to which any suit might be instituted.

It has further been laid down that even if a suit is instituted in a civil Court and during the course of the proceedings the civil Court comes to the conclusion that a dispute has arisen which must be heard and determined by a revenue Court, the civil Court will resort to the provisions of Order VII, rule 10 of the CPC Then the relevant provisions which governs the case in hand is found in clause (d) of Sub-clause (II) of sub-section (3) of section 77 of the Punjab Tenancy Act, as follows-

Suits by a tenant to establish a claim to a right of occupancy, or by landlord to prove that a tenant has not such a right;

While construing these provisions, the Supreme Court in Shri Raja Durga Singh of Solan Vs. Tholu, has clearly laid down that the civil Court would have jurisdiction only where a person claims rights of non-occupancy tenant or occupancy tenant whereas the landlord denies the same. But in case where a non-occupancy tenant claims that he was not non-occupancy tenant on the land but was occupancy tenant thereon under the landlord, the civil Court will not have jurisdiction as this would fall under Clause (d) of section 77 of the Punjab Tenancy Act and it is the revenue Courts alone which would have jurisdiction to try such a suit under the Punjab Tenancy Act. While following this ruling of the Supreme Court, a single Judge of the Delhi High Court in circuit bench at Shimla has held in 1967 69 PLR 396 (Delhi Section) (Vol. LXIX), Raghbir Singh v. Beli Ram, that a suit in which the question for determination is whether a person is a non-occupancy tenant or an occupancy tenant, that is, with regard to the nature of the tenancy, the same is triable by a revenue Court alone. Even if a declaration is sought in a suit that by virtus of the Plaintiff being the occupancy tenant on the land on the ''appointed day'' that is, 15-6-1952, he had become owner under the 1953 Act, as in the case in hand, the same was still triable by a revenue Court since the declaration of ownership sought is only by way of consequential or ancillary relief and the main relief sought was as to the nature of his tenancy which falls squarely within clause (d) of second group of section 77(3) of the Punjab Tenancy Act and the civil Court has no jurisdiction. This authority was even cited by the learned Senior Sub-Judge in his judgment.

It may also be observed that the Supreme Court in Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, has, inter-alia, laid down that exclusion of the jurisdiction of civil Court is not readily to be inferred even if there is a certiorari clause in a particular statute ousting the jurisdiction of a civil Court unless the statute itself clearly provides that the matter in dispute between the parties would be enquired into and adjudicated upon in a proper manner and that after the conclusion of this adjudication at the initial stage there would be further avenues open to the parties to challenge that adjudication in appeal and revision. In the Punjab Tenancy Act, it would be seen that all these requirements are squarely met inasmuch as, after the suit is heard and determined by the revenue Court as to the nature of tenancy, u/s 77 of the Punjab Tenancy Act, there are provisions for appeal, review and revision under sections 80, 82 and 84 respectively of the said Act. As already observed, in the instant case, there is no doubt that Defendant No. 9 at the time of instituting the civil suit (resultant appeal No. 213 of 1965), was recorded in the revenue record as non-occupancy tenant of class B-3 and his case was that he was not non-occupancy tenant of Class B-3 but was occupancy tenant, even on the appointed day, 15-6-1952, and as such he on the said date became owner of the land in suit. Thus, this suit clearly falls within clause (d), group II of Section 77(3) of the Punjab Tenancy Act and as such the matter was exclusively triable by a revenue Court and the civil Court had no jurisdiction. In fact, this objection was taken up by the Plaintiff in that suit but was over-ruled by the trial Court and it appears that the same was never raised in the appellate Court as there is no mention with regard thereto, in the judgment of the appellate Court (copy Ex. P-6) and the Plaintiff did not challenge this judgment of the appellate Court in any forum thereafter.

Thus, it is clear that once it is held that the civil Court lacked inherent jurisdiction to try the suit, any decree passed by such a Court is non-est and a nullity. Their Lordships of the Supreme Court in Kiran Singh and Others Vs. Chaman Paswan and Others, have observed as under:

It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties.

Obviously, the present suit inter-se the Plaintiff and the contesting Defendants is a collateral proceeding qua the suit (and civil appeal No. 213 of 1965), inter-se Defendant No. 9 and the Plaintiff and since the decree in that suit is a nullity, no relief can be sought by the Plaintiff on the basis of such a decree. In any case, since, the contesting Defendants admittedly wore not the parties in that suit, I do not think there is any law to debar them from challenging the validity of this decree as they have done in the instant suit. The learned Counsel for the Plaintiff contended tnat since this decree in favour of Defendant No. 9 and against the Plaintiff had remained unchallenged it had become a judgment in rem and as such binding on the contesting Defendants as well even though they were not parties to that suit. There is no substance in this contention. The provisions of Section 35 of the Specific Relief Act, 1963 themselves are a complete answer to this contention which lay down that a declaration obtained in the suit is binding only on the parties to a suit and the persons claiming under them and admittedly the contesting Defendants not being the parties to that suit cannot be bound by a decree of this nature.

It may also be observed that the civil suit (resultant appeal No. 213 of 1965) by Defendant No. 9 against the Plaintiff was even otherwise riddled with Anr. fatal defect. Section 34 of the Specific Relief Act, 1963, reads that a person is entitled to file a suit to claim that he was entitled to any legal character or to any right as to any property against any person denying or interested to deny his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled.

Now it is clear that suit should be filed against the person denying or interested to deny the Plaintiff''s title to such character or right and, secondly, the Plaintiff cannot claim this relief as of right but this discretion is with the Court whether to allow it or not. No doubt, this judicial discretion has to be exercised in a judicious manner. Now in the civil suit (appeal No. 213 of 1965) Defendant No. 9, even at the time he filed the suit in the year 1965, was recorded as non-occupancy tenant of class B-3 in the revenue record under Rattan Lal predecessor-in-interest of the contesting Defendants, although, at that time, the proprietary rights qua the suit land stood alienated in favour of the Plaintiff by virtue of sale dated 16-3-1964, yet he claimed to be non-occupancy tenant even on the appointed day, that is, 15-6-1952. Thus atleast he had suffered the entries in the revenue record as non-occupancy tenant of class B-3 under the vendor Rattan Lal to continue upto the date of the sale and was paying Galla-Batai of one-third of the produce to him and he then challenged the correctness thereof ever since 15-6-1952. In the circumstances, it would not be improper to hold that the contesting Defendants or their predecessor-in-interest, Rattan Lal, were very much interested in denying the title of Defendant No. 9 to occupancy rights qua the land in suit between the period of 15-6-1952 and the date of the sale. Thus, they were necessary parties to the suit and in their absence civil suit (and appeal No. 213 of 1965) by Defendant No. 9 was not competent. In these circumstances, the contesting Defendants must be held to be entitled to challenge the validity and propriety of this decree in favour of Defendant No.9.

Again on an over all assessment in the circumstances of this case, it must be held that this was a case where law should have followed the equity and the equities are in favour of the contesting Defendants alone. So far as the Defendant No. 9 is concerned, as observed earlier, he had not only allowed the entries as non-occupancy tenant of Class B-3 qua him in the revenue record to continue right upto the institution of the suit in 1964 but also was paying the rent as one-third of Galla-Batai to the landlord at least till the date of the sale and then after sleeping over his rights for 14 years he came to the Court to seek declaration that he was occupancy tenant on the suit land on 15-6-1952 and had thus become owner thereof under the 1953 Act. Thus he had dis-entitled himself to claim such a discretionary and equitable relief not only on the ground of estoppel but also on the ground of gross delay and laches, and the Court concerned erred in not using its discretionary Power in denying this equitable relief to Defendant No. 9 by invoking the established principle of equity that "the delay defeats equity".

Even the Plaintiff does not stand on a better footing since he not only failed to press his objection qua the jurisdiction of Court in the appellate Court after it was over-ruled by the trial Court but also did not challenge the judgment of the appellate Court by virtue of which civil suit (in appeal No. 213 of 1965) was decreed against him.

The lower appellate Court was thus clearly in error in holding that the decree passed in civil suit (appeal No. 213 of 1965) in favour of Defendant No. 9 and against the Plaintiff had become binding and not open to challenge even by the contesting Defendants although they were not parties to that suit. The second observation of the appellate Court that the Plaintiff under the warranty contained in the sale in question was entitled to rescind the contract since the vendor Rattan Lal had failed to hand over the physical possession of the suit land to the Plaintiff and also that under the decree obtained by Defendant No. 9, the land in suit which was bulk of the area alienated in favour of the Plaintiff by said Rattan Lal, had gone out of his hands, is also completely off the mark.

Admittedly, at the time of the sale, the Defendant No. 9 was in cultivating possession of this land as non-occupancy tenant of Class B-3 on payment of one-third of Galla-Batai which came to the knowledge of the Plaintiff even through an independant enquiry as clearly admitted by him while in the witness-box, there was no question of said Rattan Lal handing over the physical possession of this land to the Plaintiff at the time of the sale. All the same the proprietary rights which vested in the vendor Rattan Lal at that time were transferred in favour of the Plaintiff by way of symbolic possession. Subsequent to the sale, again, there could be no occasion for said Rattan Lal to handover the physical possession of the land to the Plaintiff as by that time the title qua the suit land had passed over to the Plaintiff by virtue of this registered sale deed and as such said Rattan Lal had lost locus-standi to take up any ejectment proceedings against Defendant No. 9 with regard to this land and if there was any such stipulation in the sale deed with regard to the handing over of physical possession of the land in favour of the Plaintiff, it was obviously incapable of being fulfilled to the knowledge of the Plaintiff and as such of no consequence whatsoever. The possession of the land in suit at the time of the sale was capable of being handed over to the Plaintiff only in a symbolic manner as has been found by the trial Court and it was done by the vendor at the time of the sale and, therefore, the trial Court had rightly held that there has been no breach of warranty in this case on the part of the vendor and as such no liability can be fastened on the contesting Defendants on that account.

In view of the above discussion, I accept the appeal, set aside the judgment and decree of the Additional District Judge and restore the judgment and decree of the lower Court dated October 28, 1968 resulting in dismissal of the suit of the Plaintiff. In the circumstances of the case, however, the parties are left to bear their own costs.