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1997 Supreme(P&H) 1526
PUNJAB & HARYANA HIGH COURT
B.Rai, J.
Jiwan
Versus
Ram Sarup (Died) Through His L.Rs
Regular Second Appeal No. 1991 of 1979,
Decided On : OCTOBER 17, 1997
The jurisdiction of the civil court is excluded when a Tribunal is specifically conferred with jurisdiction and its judgments and orders are given finality.
Headnote:
OCCUPANCY TENANCY - DETERMINATION OF NATURE - JURISDICTION - CIVIL COURT - BARRED - PUNJAB OCCUPANCY TENANTS (VESTING OF PROPRIETARY RIGHTS) ACT, 1952, SECTION 10 - CODE OF CIVIL PROCEDURE, 1908, SECTION 152.
Fact of the Case:
Jiwan, a cultivator, filed a suit for declaration of Marusi rights over land in Village Khabra Kalan, Hissar. After consolidation, he was allotted land in lieu of his old land. Ram Sarup, claiming to be a bona fide purchaser, got a sale deed and mutation in his favor. Jiwan challenged the sale deed and mutation, asserting his ownership rights as an occupancy tenant. In a separate suit, Amar Singh and others, claiming to be Marusis, sought a declaration of ownership over land sold by Gubar Singh to Ram Sarup.
Finding of the Court:
The trial court found that Jiwan was a tenant on the suit land, paying a nominal rent of Rs. 1.12 paise per year, and that he had not become the owner. The appellate court affirmed this finding and dismissed Jiwan's appeal. In the second suit, the trial court dismissed the plaintiffs' suit, holding that it was barred by res judicata. The appellate court upheld the dismissal.
Issues: 1. Whether Jiwan was an occupancy tenant or a tenant at will? 2. Whether the civil court had jurisdiction to determine the nature of Jiwan's tenancy? 3. Whether the plaintiffs in the second suit were barred by res judicata?
Ratio Decidendi: 1. The nature of tenancy, whether occupancy or tenancy at will, is to be determined by the Revenue Court and not by the civil court. 2. The civil court's jurisdiction is excluded when a Tribunal is specifically conferred with jurisdiction and its judgments and orders are given finality. 3. The Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952, Section 10, bars the jurisdiction of any court or authority to question any award or order made by the Collector, Commissioner, or Financial Commissioner under the Act.
Final Decision: Both appeals were dismissed, holding that the civil court lacked jurisdiction to determine the nature of Jiwan's tenancy and that the plaintiffs in the second suit were barred by res judicata.
B.Rai, J.
1. Regular Second Appeals Nos. 1991 of 1979 and 790 of 1980 involve common questions of law and fact, therefore, both these appeals shall be decided by a common judgment.
2. Facts leading to the filing of Regular Second Appeal No. 1991 of 1979 may be, briefly, recapitulated. Land measuring 9 Bighas 9 Biswas comprised in Khasra No. 541 situated in the revenue estate of Village Khabra Kalan, Tehsil Fatehabad, District Hissar, is being cultivated by Jiwan son of Hukma. Prior to Jiwan, his predecessors-in-interest had been cultivating the said land, on a nominal rent under Moman etc. Jiwan had filed a suit for declaration of Marusi rights which was decreed by the Revenue Court, vide order dated December 7, 1962 and he was declared Marusi tenant over the land in suit. After consolidation, Jiwan plaintiff was allotted land bearing Khasra No. 25/2(4-0) of Rectangle No. 39 and Khasra Nos. 5(7-8), 6(7-8), 7/1(4-16) of Rectangle No. 64, total area measuring 23 kanals 12 Marias in lieu of his old Khasra No. 541., Jiwan was settled as tenant under Gulzar Singh son of Ram Ditta, Kunda son of Norang, Gurdial son of Bhadan Singh, and Jiwan plaintiff is in possession of those Khasra Numbers in the capacity of occupancy tenant. It is alleged that he has become absolute owner of the Khasra Numbers which were in his possession as occupancy tenant. His case further is that Ram Sarup son of Moman got a fictitious sale deed No. 1432, dated October 24, 1996 executed and registered in his favour from said Gulzar Singh, Kunda and Gurdial Singh. On the basis of said sale deed, Ram Sarup got Mutation No.1445 sanctioned in his name. According to Jiwan plaintiff, the sale deed and the mutation have no adverse effect whatsoever on his rights. On the above said averments, Jiwan filed a suit for a decree of declaration to the effect that he was in possession of the suit land as owner and that registered sale deed No. 1432, dated October 24, 1966 and Mutation No. 1445 in favour of Ram Sarup defendant have no adverse effect whatsoever on his rights.
3. The suit was contested by Ram Sarup defendant taking preliminary objections that the suit is time barred; that he was a bona fide purchaser; that the suit is not maintainable as the vendors have not been impleaded as parties; and that the plaintiff has no locus standi to file the present suit. All other averments contained in the plaint were denied.
4. Plaintiff filed Replication. He reiterated all the averments contained in the plaint and controverted those contained in the written statement.
5. On the pleadings of the parties, the following Issues were framed by the trial Court:
1) Whether the land described in the headnote of the plaint has been allotted in lieu of the land described in para No.1 of the plaint? O3PP
2) In case issue No.1 is proved in the affirmative, what are the right of plaintiff in the suit land? OPP
3) Relief.
6. After considering the oral as well as documentary evidence led by the parties, the suit of the plaintiff was decreed vide judgment and decree, dated June 20, 1970. On appeal preferred by Ram Sarup defendant, the judgment and decree of the trial Court, dated June 20, 1970 were set aside for non-compliance with the provisions of Order XIII Rules 4 and 5 of the Code of Civil Procedure, and the case was sent back to the trial Court for fresh decision.
7. After remand, the suit was again decreed in favour of Jiwan Plaintiff The said judgment and decree was again challenged in appeal by Ram Sarup defendant. Once again, the Case was remanded to the trial Court on the joint prayer of the parties that they be allowed due opportunity to produce documentary link evidence to prove the identity of the suit land.
8. In Civil Appeal No. 34 of 1977 preferred by Ram Sarup defendant, the judgment and decree, dated November 17, 1995 of the trial Court were again set aside and once again the case was sent back to the trial Court after recasting the following Issues:
1) Whether the
