Judgement

SABYASACHI MUKHARJI, J. :- How far an order directing eviction of a person by the Revenue Court under S. 77(3) of the Punjab Tenancy Act, 1887 (hereinafter called the Act) operates as res judicata for a title suit filed by a person claiming to be a mortgagee and not a tenant of the alleged landlord, is the question that arises in this appeal by special leave from the Full Bench decision of the High Court of Punjab and Haryana dated 12th March, 1981 (reported in AIR 1981 Punj & Har 237) in second appeal. By the impugned order and judgment the High Court has dismissed the appeal of the appellants and affirmed the judgment and order dated 7th September, 1978 of the Additional District Judge, Gurgaon reversing the judgment and order of Sub Judge 1st Class, Ballabgarh dated 4th November, 1977 dismissing the suit of the respondent.

2. It appears that the appellants filed proceedings in the Court of Assistant Collector 1st Grade, Ballabgarh seeking ejectment of the respondent from his lands on 29th July, 1975 under S. 77(3), proviso 2(e) of the Act on the ground that the respondent-tenant had defaulted in the payment of rent. The suit was decreed on 29th October, 1976. In execution of the decree the respondent was ejected from the suit land. No appeal though provided under the said Act was filed by the respondent from the said decree. The respondent, however, filed a suit in the civil court against the appellants alleging that he in fact was a mortgagee in possession of the suit land and not a tenant and that the decree of ejectment dated 29th October, 1976 by the Revenue Court was without jurisdiction and, therefore, a nullity. The respondent claimed to be restored the possession of the suit land from which he had been wrongly ousted by the Revenue Court. The suit was dismissed by the learned Subordinate Judge on 4th November, 1977 holding that the claim of the respondent to be a mortgagee in possession of the suit land was wrong and that the order of the Revenue Court was perfectly in order and was within that courts jurisdictional competence. It was alleged that it was of binding nature on the respondent and was not capable to challenge the same in subsequent proceedings. The claim, it was asserted by the respondent in the subsequent suit was barred by the principles of res judicata. The respondent lost. He filed an appeal against the said order of the learned Subordinate Judge. The learned Additional District Judge, Gurgaon vide his order dated 7th September, 1978 reversed the findings of the trial court and decreed the suit of the respondent. Against the said order of the learned Additional District Judge the appellants filed Regular Second Appeals which were placed for disposal before one of the learned Judges of the High Court of Punjab and Haryana at Chandigarh. After hearing counsel for the parties the learned Judge was of the view that there were collecting judgments on the points for determination in the case which were of importance and the matter was referred to the Honble the Chief Justice of the said High Court for the constitution of a larger Bench for the determination of the points in controversy. The question referred to a larger Bench was whether, the decision of Rent Controller under the Rent Control Laws or a Revenue Court under S. 77 of the Punjab Tenancy Act upon the relationship of landlord and tenant between the parties operates as res judicata and is not open to challenge in a subsequent suit or in other collateral proceedings between the parties. The learned Chief Justice constituted a Full Bench of three learned Judges for resolving the conflict pointed out in the referring order. The three learned Judges of the Full Bench have given three separate judgments and ultimately the case came to be decided in accordance with the Majority view.

3. The order of the Full Bench was that in accordance with the majority view it was held that the decision of the Revenue Court under S. 77 of the Punjab Tenancy A