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Case Number

D.B Civil Revision No. 229 of 1950

Advocates

R.A Gupta, for applicant.
Uma Datt, for opposite party.

Judges

Kailash Wanchoo
Mr. Jawan Singh Ranawat

Acts

Sec. 50 of the Punjab Tenancy Act (which corresponds to S. 184 of the Alwar Revenue Code),
sec. 6(3) of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act (No. 1 of 1951),
sec. 43 of the Tenancy Act (which corresponds to sec. 180 of the Alwar Revenue Code),
Jurisdiction) Act, 1951 (No. 1 of 1951).
Jurisdiction) Act (No. 1 of 1951)
PUNJAB TENANCY ACT

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This revision under Section 115 of the Code of Civil Procedure was brought by Prem Das. Prem Das is described as the Muddati Mazara (occupancy tenant) of plot No. 826 in village Sherpur. The opposite party, Govind Sahai, was the Muddati Mazara of adjacent plot No. 827. A portion of plot No. 826, referred to as "826 Minjumla" (826 Min), was alleged to have been amalgamated with plot No. 827. Revenue records apparently recorded Govind Sahai as a sub-tenant of Prem Das in respect of 826 Min.

Following that entry, Prem Das served a notice of ejectment on Govind Sahai under Section 180 of the Alwar Revenue Code. Govind Sahai contested by instituting a suit under Section 181(3). That suit was dismissed by the first court, was decreed by the appellate court, and ultimately dismissed by the second appellate forum (the Revenue Minister of the former State of Alwar) on 25 July 1947. A decree of ejectment under Section 181(4) followed and possession was delivered to Prem Das in execution of that decree.

Subsequently, Govind Sahai filed a civil suit against Prem Das seeking: (a) a declaration that 826 Min had been included in 827 on account of his adverse possession; (b) that the revenue entry for 826 Min was incorrect; (c) that the Revenue Minister's decision dated 25 July 1947 was null and void; and (d) possession of 826 Min. Prem Das challenged the civil court's jurisdiction by way of a written statement, contending that the dispute was triable only by revenue courts. A preliminary issue on jurisdiction was framed; the learned Munsiff held on 5 September 1950 that he had jurisdiction. The present revision challenges that interlocutory order of the Munsiff.

Legal Issues Presented

Whether an interlocutory order of a civil court deciding a preliminary issue on whether a suit is cognizable by a civil court or by a revenue court amounts to a "case decided" under Section 115 of the Code of Civil Procedure, and therefore is open to revision by the High Court.
Whether the subject-matter of the plaint (including correction of revenue entries, declaration against the Revenue Minister's decision, and claim to possession) is exclusively triable by revenue courts under the relevant provisions of the Alwar Revenue Code (and subsequently the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951).
Whether a person ejected by virtue of revenue proceedings under Section 181(4) of the Alwar Revenue Code can maintain a civil suit for recovery of possession (i.e., whether an ejected tenant may sue in civil court to regain tenancy possession), or whether such relief is exclusively within revenue jurisdiction.
Whether a claimant who alleges ownership by adverse possession (prescription) may, on that ground, sue in the civil court for possession despite prior revenue proceedings (as distinguished from a claim to tenancy rights).

Arguments of the Parties

Applicant (Prem Das) — Arguments

Relying on the amended Section 7 of the Alwar Revenue Code, the applicant argued that various categories of proceedings (listed in the Schedule/entries) are to be disposed of exclusively by revenue officers and revenue courts, and no other court may take cognizance of matters falling under those entries.
The applicant identified specific entries (examples given in the opinion: entry No. 8 Group II; entry No. 10 Group I; entry No. 12 Group II; entry No. 14 Group II) that cover suits for amendment of settlement/Patwari records, suits by tenants for recovery of possession forcibly taken, suits by a tenant to establish occupancy rights, suits by a tenant to contest liability to ejectment after notice, and other suits between landlord and tenant arising out of the lease or conditions of tenancy.
On that basis, the applicant contended that the suit as framed by the opposite party falls within one or more of those entries and is therefore not cognizable by the civil court.

Opposite Party (Govind Sahai) — Arguments

The opposite party conceded that the demands for correction of entries in the Patwari papers and the declaration that the Revenue Minister's decision was null and void were not cognizable in a civil court.
He argued, however, that the prayer for possession was cognizable by the civil court and that the civil court should proceed with trial as to that relief. He relied on Cheta v. Baija (A.I.R. 1927 Lahore 452), a decision under the Punjab Tenancy Act, to support the contention that an ejected person could sue in a civil court for possession.
As an alternative argument, counsel for the opposite party asserted that he was claiming ownership of 826 Min by adverse possession (prescription) and relied on Maru v. Abdul Rahim (A.I.R. 1937 Lahore 849) to the effect that an ejected person may sue in civil court on the basis of adverse possession.
However, the opinion records that opposing counsel was unable to point to any pleading in the plaint asserting full ownership by adverse possession; additionally, the owner of the land was not made a party to the suit, which undermines the assertion that the opposite party was claiming full ownership as against the true owner.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Buddhoo Lal v. Mewa Ram, A.I.R. 1921 Allahabad I	Held in a Full Bench context that a decision as to which of two civil courts has jurisdiction may not amount to a "case decided" for purposes of revision (the Full Bench concluded the matter was not a case decided).	The Court noted this decision was relied on by a single Judge in a later revision but distinguished the factual difference (civil-civil forum issue versus civil-revenue forum issue) and did not follow Buddhoo Lal to bar revision here.
Manna Lal v. Ram Gopal, A.I.R. 1950 Allahabad 205	Concerned a preliminary issue on whether a suit was cognizable by a revenue court or by a civil court; the issue was raised and decided.	The opinion distinguishes this case from Buddhoo Lal and treats it as showing that issues of civil vs revenue jurisdiction may amount to a "case decided" amenable to revision.
Bibi Gurdevi represented by Prithvi Raj Khosla v. Chaudhari Mohammad Baksh, A.I.R. 1943 Lahore 65	Signaled a change of view in the Lahore High Court, holding that interlocutory orders deciding whether a suit is triable by civil or revenue courts could be revised (could amount to a case decided).	The Court cited this as part of the weight of authorities supporting revisionability where the issue is civil vs revenue jurisdiction, and treated it as persuasive for allowing revision here.
Cheta v. Baija, A.I.R. 1927 Lahore 452	Under the Punjab Tenancy Act, held that a person dispossessed after notice under the Tenancy Act and unsuccessful in contesting liability to ejectment could sue in the civil court for possession because the "tenant" was held to cease to be tenant after ejectment.	The Court considered this authority but explained that the Legislature subsequently enacted Section 50-A to correct that decision. The Court concluded that legislative amendments (and comparable wording in the Rajasthan Act) made Cheta v. Baija distinguishable and did not permit a civil suit by an ejected tenant in the present context.
Maru v. Abdul Rahim, A.I.R. 1937 Lahore 849	Decided after Section 50-A; held that a person ejected from tenancy who had been unsuccessful in a revenue contest might still sue in civil court for possession on the ground that he had acquired ownership by prescription (adverse possession).	The Court observed this principle but found it inapplicable on the facts because the plaint did not plead acquisition of ownership by adverse possession against the owner (and the owner was not made a party). Accordingly, Maru did not support civil jurisdiction in this case.

Court's Reasoning and Analysis

The Court proceeded in two main stages: (A) the threshold procedural question of whether this interlocutory order was revisable under Section 115 CPC; and (B) the substantive question of whether the civil court had jurisdiction to try the suit or any part of it.

(A) Revisionability under Section 115 CPC

The Court observed divergent views among High Courts on whether an interlocutory order deciding jurisdiction is a "case decided" for the purpose of revision. Several High Courts (Calcutta, Madras, Nagpur, Orissa, Patna, Rangoon) allow interference where the order is covered by one of the clauses of Section 115, while others (including Allahabad, and the Chief Courts of Sind and Oudh) generally do not.
After reviewing authorities (including Buddhoo Lal and Manna Lal) and a later Lahore decision (Bibi Gurdevi), the Court concluded that when the preliminary issue is whether the civil courts or revenue courts have jurisdiction, a decision one way or the other should be treated as a "case decided" and therefore amenable to revision under Section 115. The Court emphasized the practical consideration that early resolution of the correct forum saves unnecessary litigation expense.
Accordingly, the Court overruled the preliminary objection that no revision lay and held that the High Court could interfere under clause (a) or (b) of Section 115 (the question being jurisdictional).

(B) Merits — Jurisdictional and Substantive Analysis

The applicant relied on amended Section 7 of the Alwar Revenue Code which, as stated, requires that certain proceedings, applications and suits be disposed of by revenue officers and revenue courts exclusively. The Court examined the entries of the relevant schedule (examples given in the opinion): suits for amendment of settlement/Patwari records; suits by tenants for recovery of possession forcibly taken by landlord or another; suits by a tenant to establish occupancy or to show absence of occupancy rights; suits by tenants to contest liability to ejectment after notice; and other suits between landlord and tenant arising out of lease conditions.
The Court accepted that the elements of the opposite party's plaint seeking correction of Patwari entries and declaring the Revenue Minister's decision null were indisputably matters for revenue jurisdiction and could not be entertained by a civil court.
As to the possession claim, the opposite party relied on a line of authority under the Punjab Tenancy Act (Cheta v. Baija) to argue that an ejected tenant could sue in civil court. The Court considered the statutory context: the Alwar Revenue Code was based on the Punjab Tenancy Act; Cheta had been decided under that Act; but the Legislature subsequently enacted Section 50-A in the Punjab Act to make clear that the Cheta view was not correct. The Court concluded that the use of the word "tenant" in the corresponding provision of the Alwar Revenue Code was meant to include persons who had been ejected and sought to regain possession through the statutorily provided processes; but that statutory amendment and subsequent reforms (including the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act's use of the word "person" in the relevant entry) clarify that such matters fall within revenue jurisdiction.
Therefore the Court held that a tenant ejected under Section 181(4) of the Alwar Revenue Code could not file a civil suit to regain possession of the tenancy holding; the claim must be pursued in the revenue forum.
On the alternative contention that the opposite party was asserting full ownership by adverse possession (which might support civil jurisdiction, per Maru v. Abdul Rahim), the Court inspected the plaint and found no averment that Govind Sahai had acquired ownership by adverse possession against the true owner. Furthermore, the owner was not made a party. The Court concluded that the pleaded rights appeared to be tenant rights (or rights asserted against the tenant) rather than ownership rights against the proprietor; consequently, the civil court could not grant the reliefs as framed.
Because, after the learned Munsiff's order, the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act (No. 1 of 1951) came into force, Section 6(3) of that Act mandated that any pending suit declared by Section 7 to be exclusively triable by a revenue court must be transferred by the civil court to the competent revenue court under Section 12. The Court found that the present suit was exclusively triable by a revenue court under the Act and hence should be transferred.

Holding and Implications

Holding (core ruling):

Revision allowed; the order of the learned Munsiff is set aside; the Munsiff is directed to act under Section 6(3) of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act (No. 1 of 1951) and transfer the suit to the revenue court competent under Section 12 to deal with and dispose of the same.

Consequences and implications:

Direct effect on the parties: the civil suit filed by Govind Sahai must be transferred from the civil court to the competent revenue court for disposal under the Rajasthan Revenue Courts Act; the applicant (Prem Das) is awarded costs for both courts to be paid by the opposite party.
Jurisdictional principle established in this opinion: a preliminary interlocutory order deciding whether a suit is cognizable by a civil court or by a revenue court is to be treated as a "case decided" for purposes of revision under Section 115 CPC (i.e., such orders are revisable), because this is a jurisdictional question and early resolution avoids unnecessary litigation expense.
Substantively, the Court ruled that an ejected tenant (ejected under revenue proceedings, e.g., Section 181(4) of the Alwar Revenue Code) cannot maintain a civil suit for recovery of the tenancy holding; such disputes fall within the exclusive jurisdiction of the revenue courts, particularly after the statutory changes discussed (Section 50-A in the Punjab Act and the entries in the Rajasthan Revenue Courts Act).
On claims of ownership by adverse possession: the Court indicated that a civil action based on acquisition of ownership by prescription remains a distinct category (as reflected in authorities such as Maru v. Abdul Rahim), but in the present case the plaint did not plead ownership by adverse possession against the owner and the owner was not a party; therefore that contention could not sustain civil jurisdiction here.
No wider pronouncement was made beyond these points: the decision directs the transfer of the specific pending suit and clarifies the court's view on the revisability of jurisdictional interlocutory orders and on the limits of civil jurisdiction where revenue law provides exclusive remedies.

Order as recorded in the opinion: Revision allowed; the Munsiff's order holding jurisdiction is set aside; the Munsiff must transfer the suit under Section 6(3) of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act to the revenue court competent under Section 12; the applicant will have costs of both courts against the opposite party.

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Prem Das v. Govind Sahai

Wanchoo, C.J:— This is a revision by Prem Das under sec. 115 of the Code of Civil Procedure, and has arisen in the following circumstances.

2. Prem Das is the Muddati Mazara (something like an occupancy tenant) of plot No. 826 in village Sherpur.

3. Govind Sahai opposite party is also Muddati Mazara of the contiguous plot No. 827. The dispute relates to a portion of No. 826, which is said to have been amalgamated with No. 827, and is known as 826 Minjumla. In the revenue papers, it seems that Govind Sahai was entered as a sub-tenant of Prem Das on this 826 Min. Consequently, Prem Das issued notice of ejectment against Govind Sahai under sec. 180 of the Alwar Revenue Code. This notice was contested by Govind Sahai under sec. 181(3) of the same Code by instituting a suit. That suit was dismissed by the first court, but was decreed by the first, appellate court, and was eventually dismissed by the second appellate court, namely, the Revenue Minister of the former State of Alwar, on the 25th of July, 1947. Thereafter a decree of ejectment followed under sec. 181(4) of the Alwar Revenue Code, and possession was given to Premdas of this plot in execution of the decree. Thereafter, Govind Sahai brought a suit in the civil court against Premdas, and his prayers were that a declaration be made that 826 Min was included in 827, because it was in the adverse possession of the plaintiff, and the entry in the revenue papers with respect to 826 Min was incorrect, and that the decision of the Revenue Minister dated the 25th of July, 1947, was null and void, and that the plaintiff should be given possession of 826 Min Thereupon, the present applicant objected in his written statement that the suit as framed was not cognizable in the civil court, and should have been filed in the revenue court. A preliminary issue on this point was framed, and the learned Munsiff decided on the 5th of September, 1950, that he had jurisdiction to hear the Page: 115suit. It is against this order that the present revision has been filed.

4. A preliminary objection has been raised that no revision lies to this court because no case has been placed on two cases, namely, Buddhoo Lal v. Mewa Ram (A.I.R 1921 Allahabad I) and Manna Lal v. Ram Gopal (A.I.R 1950 Allahabad 205). The former was a case whether jurisdiction law in the civil court at Etawah or the civil court at Cawnpore was raised and decided by the Munsiff. Thereupon, a question arose whether this was a case decided, and a Full Bench of five Judges by three to two came to the conclusion that the decision of this matter was not a case decided. The second case raised the question whether the suit was cognizable by the revenue court or by the civil court, and a preliminary issue was raised and decided. In revision, the learned single Judge followed the decision in the case of Buddhoo Lal v. Mewaram without giving any reasons of his own, and without nothing the distinction between the two cases, namely, that the former case only raised the question whether the jurisdiction lay in one civil court or another, while the latter case raised the question whether the jurisdiction was in the civil court or in the revenue court.

5. There is a difference of opinion between the various High Courts on the question where an interlocutory order like this is a case decided. The High Courts of Calcutta, Madras, Nagpur, Orissa, Patna and Rangoon have generally held that the court can interfere in a case like the present, if the order is covered by one of the three clauses of Sec. 115 of the Code of Civil Procedure, while the Allahabad High Court and the Chief Courts of Sind and Oudh have generally held the other view. The Lahore High Court formerly held the same view as the Allahabad High Court; but in a recent case, Bibi Gurdevi represented by Prithvi Raj Khosla v. Chaudhari Mohammad Baksh (A.I.R 1943 Lahore 65), that court changed its view, and held that others like the present could be revised, and amounted to a case decided. We fell that where, as in the present case, the question is whether a suit is cognizable in the civil court or in the revenue court, the decision on a preliminary issue on this point should be treated as a case decided, for it is best that in such cases there should be as early a decision as possible on the question of the correct forum, namely, whether it is civil court or a revenue court, so that the parties may be saved unnecessary expenses in litigation. Therefore, we overrule the preliminary abjection, and hold that where the question is whether the civil courts of revenue courts have jurisdiction and a preliminary issue on the point is decided one way or the other, there is a case decided, and Sec. 115 of the Code of Civil Procedure applies. The question is obviously one of jurisdiction, and is covered either by clause (a) or (b) of that section, and this Court, therefore, has the right to interfere.

6. We now turn to the merits of the application. The applicant relies on the amended sec. 7 of the Alwar Revenue Code, which begins as follows:—

“The following proceedings, applications and suit shall be disposed of by Revenue Officers and Revenue Courts as much and no other officer or Court shall take cognizance of any dispute or matter with respect to which any such application, proceeding or suit may be made or instituted.”

7. This section further provided for the jurisdiction of the Collector, the Assistant Collector of the First Grade and Assistant Collector of the Second Grade and certain entries in the three Groups may be mentioned. There are entry No. 8, Group No. II, suits for amendment of entries in Settlement records and Patwari papers, entry No. 8, Group No. II, suits by tenants for recovery of possession forcibly taken by landlord or another person, entry No. 10, Group No. I, suit by a tenant to establish a claim to a right of occupancy or Page: 116by a landlord to prove that such a tenant has not such a right, entry No. 12, Group No. II, suits by a tenant to contest liability to ejectment when notice of ejectment has been served, and entry No. 14 Group No. II, any other suit between landlord and tenant arising out of the lease or conditions on which a tenancy is held. The contention on behalf of the applicant is that the present suit is of such a nature that it comes within one or other of these entries, which we have set out above. Learned counsel for the opposite party also admits that so far as the prayers for correction of entries in the Patwari papers and for declaring the decree of the Revenue Minister null and void are concerned, no suit can lie in the civil court. His contention, however, is that part of the suit which relates to his prayer for possession is cognizable by the civil court, and, therefore, the civil court should be allowed to go on with the trial of this suit so far as that prayer is concerned. He relies particularly on Cheta v. Baija (A.I.R 1927 Lahore 452) in this connection. It appears that the Alwar Revenue Code is based on the Punjab Tenancy Act, and the argument is that the sections in the two laws being more or less similar this decision of the Lahore High Court lays down that the civil court has jurisdiction to try a suit brought by a person, who has been dispossessed from his tenancy after a notice issued to him under sec. 43 of the Tenancy Act (which corresponds to sec. 180 of the Alwar Revenue Code), and who has been unsuccessful in a suit under sec. 45 (which corresponds so sec. 181(3) of the Alwar Revenue Code) to contest his liability to ejectment, for possession of the land from which he has been ejected on the ground that he had a right of occupancy therein. This case was based on the word “tenant” which was used in Sec. 50 of the Punjab Tenancy Act (which corresponds to S. 184 of the Alwar Revenue Code), and it was held by the Lahore High Court that as the tenant ceases to be a tenant after ejectment, he could bring a suit to the civil court. Immediately this case was decided the Legislature stepped in and enacted Sec. 50-A to a make it clear that decision was wrong and not according to the intention of the Legislature. We are of opinion that the use of the word “tenant” in the Sec. 184 of the Revenue Code was really meant to apply also to a person who had been ejected and wanted to regain possession of his Tenancy holding. Therefore, such a person could, in our opinion, bring a suit under Sec. 184 for recovery of possession, if he was wrongfully ejected. The matter was made clear in Sec. 50A, which was introduced in the Punjab Tenancy Act, and has been further made clear by the use of the word “person” in entry 12 of Group B of the First Schedule in the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 (No. 1 of 1951). We are, therefore, of opinion that a tenant, who has been ejected under S. 181(4) of the Alwar Revenue Code cannot file a civil suit to get back possession of the land from which he has been ejected by the revenue courts.

8. Learned counsel for the opposite party than argues that his client is not claiming any tenant right by his plaint, and that what he is claiming is that he has become owner of the land by adverse possession, and therefore, the suit lies in the civil court. In this connection he relies on Maru v. Abdul Rahim (A.I.R 1937 Lahore 849). That was decided after Sec. 50-A had been introduced in the Tenancy Act. It was then held that Sec. 50 A did not bar a person, who had been ejected from the tenancy, and whose suit to contest his liability to ejectment on the ground that the was an occupancy tenant had been dismissed, from suing in a civil court for possession of land on the ground that he had acquired ownership of the land by prescription. This position, however, does not arise in the present case. Learned counsel was unable to point out to any portion of the plaint where the opposite party Govind Sahai has claimed that he was become full owner of 826 Min on account of the fact that he was in adverse possession Page: 117for over 12 years. We may also point out that the owner of the land has not been made a party to the suit, and if the intention of the opposite party was to claim full ownership of this plot, he would not have been so foolish as to bring a suit only against the tenant and leave out the owner. The very fact, therefore, that the owner has not been made a party can lead to no inference but this that whatever right Govind Sahai, opposite party, claims is a kind of tenant right and not the right of full ownership. That is why he has claimed that he was in adverse possession as against the tenant. There is not a word in the plaint to show that he was in adverse possession as against the owner. Under these circumstances, there is no force in the argument that this plaint lies in the civil court because Govind Sahai is claiming to be the full owner of the property by prescription. We are, therefore, of opinion that the reliefs claimed in this plaint cannot be granted in the civil court, and such a plaint should be filed in the revenue court, if anywhere at all.

9. The next question is as to what order we should pass now. Ordinarily we should have passed an order returning the plaint for presentation to the proper court, but since the decision of the learned Munsiff, the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act (No. 1 of 1951) has been put on the Statute Book. Sec. 6(3) of this Act reads as follows:—

“Any suit, application case or proceeding, pending before a civil court when this Act comes into force, which has been declared by sec. 7 to be exclusively triable by a revenue court, shall be transferred by such civil court to the revenue court competent under sec. 12 to deal with and dispose of the same.”

10. There is no doubt that the suit as framed by Govind Sahai is exclusively triable by a revenue court under sec. 7 of the Rajasthan Act. Therefore, the proper order to pass is that the suit shall be transferred by the Munsiff to the revenue court competent under sec. 12 of the Rajasthan Act to deal with and dispose of the same.

11. We, therefore, allow this revision, set aside the order of the learned Munsiff, and direct that he shall take action under sec. 6(3) of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act (No. 1 of 1951), and transfer this suit to the revenue court competent under sec. 12 to deal with and dispose of the same. The applicant will get his costs of both the courts from the opposite party.

Prem Das v. Govind Sahai

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Applicant (Prem Das) — Arguments

Opposite Party (Govind Sahai) — Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Prem Das v. Govind Sahai

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