A suit for ejectment of a tenant is barred from the cognizance of a civil court under S. 77(3) of the Punjab Tenancy Act, 1887 only if the existence of the relationship of landlord and tenant is admitted by the parties.

Judgment

MUDHOLKAR, J.: In this appeal by special leave against the judgment of the Judicial Commissioner, Himachal Pradesh in second appeal two points have been urged on behalf or the appellant. The first is that the Court of the Judicial Commissioner was in error in interfering with a finding of fact of the District Judge and the second is that the Court of the Judicial Commissioner was wrong in holding that the suit was not triable by a civil Court but is triable by a revenue court under S. 77 of the Punjab Tenancy Act, 1887 (Act XVI of 1887) (hereinafter referred to as the Act) which applies to Himachal Pradesh.

2. In order to appreciate these points it is necessary to state some facts. The appellant who was plaintiff in the suit was the former ruler of the State of Bhagat, one of the Simla Hill States. The State of Bhagat and several other Simla Hill States were merged in Himachal Pradesh on July 1, 1947. As a consequence of the merger the ruler surrendered his sovereignty to the new State. Khasra nos. 70, 80, 81, 167, 263 / 170, 171, 172, 173 and 269/177 measuring in all 15 bighas and 19 biswas, among other property, were declared to be the private property of the appellant. It is the appellant s case that these fields are his khudkhast land, that they are recorded as such in the revenue papers ever since the year 1936 and that the defendants were granted licence to cultivate these lands on his behalf with the obligation that the entire produce from the lands should be handed over by them to the appellant at the end of every year. The consideration for the arrangement was a remission in rent and land revenue which the appellant had granted to the respondents with respect to certain other lands which were leased out by him to the respondents. Bulk of these lands were declared to be the State property as a result of the merger and presumably the respondents have now to pay full assessment or rent with respect to them. According to the appellant the respondents failed to hand over the annual produce from the fields in suit to him and, therefore, he leased out the lands at Rs.500 per annum to Chuku Koli for Rs. 500 for a period of one year from October, 1950. The respondents, however, obstructed Chuku in taking possession of the land and despite repeated demands by the appellant, they kept him out of possession. He, therefore, instituted a suit for possession and mesne profits from Rabi 1950 to Kharif 1953 at Rs. 500 per annum and future profits in July, 1954.

3. On behalf of the respondents it was contended that they were the occupancy tenants of these lands for the last two or three generations that they were cultivating these lands jointly and severally and that the suit was not cognizable by a civil Court. They also contended that they had filed a suit against the appellant in the court of the Assistant Collector, First Grade, Solon for a declaration to the effect that they are in possession of the lands as occupancy tenants and that, therefore, the appellant s suit should be stayed. The trial Court decreed the suit of the appellant as against all the respondents including the claim for mesne profits. The respondents preferred an appeal before the District Judge, Mahsu. He dismissed the appeal and confirmed the decree of the trial Court. They, therefore, preferred second appeal to the Court of Judicial Commissioner. The Judicial Commissioner allowed the appeal holding that the respondents were occupancy tenants of the lands and that consequently the provisions of S. 77(3) read with the first proviso thereto barred the jurisdiction of the Civil effort. On this finding the Judicial Commissioner set aside the decree granted by the trial Court and affirmed by the District Judge and directed that the plaint returned for presentation to proper court.

4. It is contended before us by Mr. Achhru Rom for the appellant that for a suit to be barred under S. 77(3) of the Act from the cognizance of a civil Court two conditions have to be