Shri Raja Durga Singh Of Solan vs Tholu

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 382 of 1960

Decision Date: 1 May 1962

Coram: J.R. Mudholkar, K.C. Das Gupta

Shri Raja Durga Singh of Solan filed a suit in the Civil Court for the ejectment of the respondents, who were identified as Tholu, on the basis that the respondents occupied the land only by licence. The respondents counter‑claimed that they were occupancy tenants and argued that, according to section 77 of the Punjab Tenancy Act, 1887, the suit could be tried only by a revenue court and not by a civil court. The trial court, and subsequently the first appellate court, rejected the respondents’ claim and decreed the suit, holding that the respondents were not tenants. On a second appeal, the Judicial Commissioner of Himachal Pradesh concluded that the respondents were indeed occupancy tenants and that the civil court lacked jurisdiction to entertain the suit.

The Supreme Court examined these findings and held that the civil court did possess the jurisdiction to hear the suit. It explained that section 77 of the Punjab Tenancy Act is applicable only in cases where there is no dispute about the tenant’s status—that is, where the landlord does not contest that the person cultivating the land is a tenant. In the present case the landlord had expressly contested the tenancy, and therefore section 77 did not bar the suit from being filed in a civil court.

The Court referred to earlier authorities, specifically the decisions in Sham Singh v. Amarjit Singh (1930) 1 L.R. 12 Lah. 111 and Baru v. Niadar (1942) I L.R. 24 Lah. 191, which had been approved in the case of Magiti Sasamal v. Pandab Bissai, [1962] 3 S.C.R. 673. It further observed that the findings of the trial court and the first appellate court that the respondents were not tenants were factual determinations. Although documentary evidence was relevant for ascertaining the status of the respondents, the Judicial Commissioner had no authority to interfere with those factual findings on second appeal. The Commissioner had disregarded the presumption that arose from entries in the revenue records under section 44 of the Act, and this omission invalidated his conclusions.

The Court also noted that where there is a conflict between earlier and later entries in the revenue records, the later entries must prevail. Accordingly, the appeal was allowed, confirming that the civil court had the power to entertain the suit for ejectment despite the respondents’ claim of tenancy, and rejecting the Judicial Commissioner’s view that the suit should be tried exclusively by a revenue court.

In the second appeal the appellant pressed two specific submissions. First, the appellant argued that the Judicial Commissioner had wrongly interfered with a factual finding that the District Judge had made. Second, the appellant maintained that the Judicial Commissioner erred in concluding that the suit could not be heard by a civil court and should instead be dealt with by a revenue court under section 77 of the Punjab Tenancy Act, 1887 (Punj. XVI of 1887), which the Act applies to Himachal Pradesh. To understand these submissions the Court set out the relevant factual background. The appellant, who was the plaintiff in the suit, had previously been the ruler of the State of Bhagat, one of the Simla Hill States. The State of Bhagat, together with several other Simla Hill States, merged into Himachal Pradesh on 1 July 1947, and the former ruler thereby surrendered his sovereign authority to the new State. Certain parcels of land identified as Khasra numbers 70, 80, 81, 167, 263/170, 171, 172, 173 and 2691177, comprising a total of 15 bighas and 19 biswas, along with other property, were declared to be the private property of the appellant after the merger. The appellant asserted that these fields were his Khudkhast lands, that they had been entered in the revenue records continuously since 1936, and that the respondents had been given licences to cultivate the lands on his behalf. According to the licence, the respondents were obliged to deliver the entire annual produce of the fields to the appellant at the end of each year. In consideration for this arrangement the appellant had granted the respondents a remission of rent and land revenue on other lands that he leased to them. After the merger, the bulk of those other lands were declared State property, and the respondents were consequently required to pay the full assessment or rent that was due on those lands.

The appellant claimed that the respondents had failed to deliver the annual produce from the fields that were the subject of the suit, and that, as a result, he had entered into a new lease with Chuku Koli for a sum of Rs. 500/- per annum for a period of one year starting in October 1950. The respondents, however, obstructed Chuku Koli from taking possession of the land and, despite repeated demands by the appellant, kept the lessee out of possession. Consequently, the appellant instituted a suit seeking possession of the land together with mesne profits from the Rabi season of 1950 to the Kharif season of 1953 at a rate of Rs. 500 per annum, and also claimed future profits as of July 1954. On behalf of the respondents it was contended that they were occupancy tenants of the lands for the last two or three generations, that they cultivated the lands jointly and severally, and that the suit was not cognizable by a civil court. The respondents further alleged that they had filed a suit before the Assistant Collector, First Grade, in Solan, seeking a declaration that they were occupying the lands as occupation tenants and that, therefore, the appellant’s suit should be stayed.

In the present case the respondents asserted that they were in possession of the lands as occupancy tenants and therefore urged that the appellant’s suit should be stayed. The trial court, however, granted a decree in favour of the appellant against all the respondents, including an award of mesne profits. Dissatisfied with this outcome, the respondents filed an appeal before the District Judge in Mahua, who dismissed the appeal and affirmed the trial court’s decree. Undeterred, the respondents then lodged a second appeal before the Court of the Judicial Commissioner. The Judicial Commissioner allowed the appeal, holding that the respondents were indeed occupancy tenants and that, consequently, the provisions of section 77(3) read with the first proviso thereof barred the jurisdiction of the civil court to entertain the suit. On that basis, the Judicial Commissioner set aside the decree that had been granted by the trial court and affirmed by the District Judge, and directed that the plaint be returned for presentation before the appropriate court.

Counsel for the appellant then contended before this Court that, for a suit to be barred under section 77(3) of the Act from the cognizance of a civil court, two conditions must be satisfied. The first condition is that the suit must relate to one of the matters described in sub‑section 3, and the second condition is that the existence of a landlord‑tenant relationship must be admitted by the parties. According to counsel, if either of these conditions is not fulfilled, the suit is not barred from the jurisdiction of a civil court. To support this argument, counsel relied upon the decisions in Sham Singh v. Amarjit Singh, Baru v. Nader, Daya Ram v. Jagir Singh, and also cited certain observations of this Court in Magiti Sasamal v. Pandab Bissoi. Section 77(3) and the first proviso thereof are stated to run as follows: “The following suits shall be instituted in, and heard and determined by Revenue Courts, and no other Court shall take cognizance of any dispute or matter with respect to which any such suit might be instituted—Provided that where in a suit cognizable and instituted in a Civil Court it becomes necessary to decide any matter which can under this sub‑section be heard and determined only by a Revenue Court, the plaint shall be endorsed with the nature of the matter for decision and the particulars required by Order VII, Rule 10, Code of Civil Procedure and returned for presentation to the Collector.” The Court noted that it is not concerned with the second proviso. Below the second proviso, the kinds of suits triable by revenue courts are listed in three groups. Respondents contended that the suit in question falls under entry (e) of the second group, which reads “suits by a landlord to eject a tenant.” They further argued that their suit before the revenue court…

The respondents argued that their suit fell within entry (d) of the statutory list, which is described as “Suits by a tenant to establish a claim to a right of occupancy, or by a landlord to prove that a tenant has not such a right.” It was further observed that, although entries (d) and (e) address landlord‑tenant disputes, every other entry in the three groups also concerns a dispute between a tenant on the one side and a landlord on the other. No entry was found that dealt with a suit by or against a person who claims to be a tenant but whose status as a tenant is denied by the landlord. Consequently, it was considered reasonable to infer that the legislature intended to exclude from the jurisdiction of a civil court only those suits in which the parties did not dispute whether the person cultivating or possessing the land was a tenant. This interpretation was supported by two decisions of the Lahore High Court cited by counsel for the respondents. In the first decision, Justice Tek Chand observed that the bar created by clause (4) applied solely to cases where the landlord‑tenant relationship was admitted and the purpose of the suit was to determine the character of the tenancy, that is, whether it fell within sections 5, 6, 7 or 8 of the Act. The case involved a claimant who sought to succeed to the tenancy of certain land after the death of the occupying tenant. The judge explained that the issue for determination was not the nature of the tenancy but whether the defendant was related to the deceased tenant and whether a common ancestor had occupied the land. If those facts were proved, the claimant would automatically succeed to the occupancy tenancy; if they were not proved, the claimant would not be a tenant at all. Because the claimant failed to establish those facts, the High Court held that the landlord was entitled to sue the defendant, who had entered the land asserting a collateral right of the deceased tenant but could not substantiate his claim. The same view was later affirmed by a full bench of five judges in another Lahore case. In Daya Ram v. Jagir Singh, the same Judicial Commissioner expressed the opinion that when a suit for ejectment does not involve an admitted landlord‑tenant relationship, the civil court possessed jurisdiction to try the suit and the suit did not fall within section 77(3) of the Act. Finally, in Magiti Sasamal v. Pandab Bissoi, this Court considered the provisions of section 17(1) of the Orissa Tenants Protection Act, 1948, and examined the same question of jurisdiction, further reinforcing the principle that suits in which the tenancy is contested fall within the civil court’s domain.

The provision in question stipulated that “any dispute between the tenant and the landlord as regards, (a) the tenant’s possession of the land on the first day of September 1947 and his right to the benefits under this Act, (b) misuse of the land by the tenant, (c) failure of the tenant to cultivate the land properly, (d) failure of the tenant to deliver to the landlord the rent accrued within two months of the date on which it becomes payable, or (e) the quantity of the produce payable to the landlord as rent, shall be decided by the Collector on the application of either party.” In the earlier case the respondents, who asserted that they were tenants, argued that the landlord’s suit for a permanent injunction was barred by section 7(1) of the Act. In addressing that contention, the Court observed that section 7(1) assumes the existence of a landlord‑tenant relationship between the parties and confers exclusive jurisdiction on the Collector to adjudicate the five categories of disputes enumerated in the section. The Court emphasized that the language “any dispute as regards” must be read in its plain and ordinary sense, and it would be unreasonable to extend the provision to cover a dispute concerning the very status of the tenant. The Court further noted that the scheme of section 7(1) was unambiguous, referring expressly to a tenant and a landlord and to disputes of the specified character that arise between them. Accordingly, even on a liberal construction, it was difficult to sustain the argument that a question about the existence of a landlord‑tenant relationship fell within the collector’s jurisdiction under section 7(1). The Court held that these observations were directly applicable to the present matter, because the appellant had not admitted that a landlord‑tenant relationship existed between the parties to the suit. The Court then turned to the second issue, namely the appellant’s contention that, based on the finding of the learned District Judge that the respondents were tenants, the Civil Court could not order their ejectment. The appellant had challenged the Judicial Commissioner’s decision on the ground that the Commissioner lacked jurisdiction to overturn the District Court’s factual finding. The Court was convinced that the Judicial Commissioner erred in reversing the district judge’s factual finding, particularly because that finding was based on a careful consideration of entries in the record of rights dating from 1936 onward, which demonstrated the relevant facts supporting the district judge’s conclusion.

In this matter the lands at issue were described as the khudkhast lands of the appellant and were held to be in his possession. The Judicial Commissioner was observed to have failed to take into account the provisions of section 44 of the Act, which confers a presumptive reliability on entries recorded in the revenue books. It was submitted before the Court that there existed earlier entries that conflicted with the entries upon which the learned District Judge had relied. The law, however, provides that when a conflict arises, the later entry must prevail. Section 44 itself provides that a new entry that replaces an old one assumes the place of the old entry and enjoys a presumption of correctness until it is shown to be wrong or supplanted by another entry. The Court recalled the decision in Deity Pattabhiramaswamy v. S. Hanymayya, where it was held that a factual finding arrived at by a District Judge after considering all oral and documentary evidence could not be disturbed on a second appeal. The central issue before the Court was whether the respondents were tenants of the appellant. Although documentary evidence was required to determine that question, the Court held that the finding remained a factual determination even if the evidence had been solely oral. The Court further noted, as it had in earlier judgments such as Sir Chunilal v. Mohta & Sons Ltd., that the presence of historical documents that are not title instruments does not raise a pure question of law. Because the Judicial Commissioner disregarded the presumption attached to the documentary evidence, the Court found an additional flaw in its judgment. Consequently, the decree issued by the Judicial Commissioner was set aside and the decree of the trial court, as affirmed by the District Court, was restored. The parties were directed to bear their own costs as incurred, and the appeal was allowed. (A.I.R. 1959 S.C. 57; (1962) Supp. 3 S.C.R. 549.)