CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1741 and 1742 of 1981.
From the Judgment and order dated 12.3.1981 of the Punjab and Haryana High Court in R.S.A. No. 1822 of 1978.
Harbans Lal and Balmukand Goel for the Appellants.
Anil Dev Singh, N.D. Garg and Rajiv Garg for the Respondent.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. How far an order directing eviction of a person by the Revenue Court under section 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 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 of November, 1977 dismissing the suit of the respondent.
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 section 77(3) proviso 2(e) of the Act on the ground that the respondent-tenant had H 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 resondent, however filed a suit in the civil court against the appellants alleging that he fact was a mortgagee in possession of the suit land and not a tenant and that the decree of ejectment dated 29th of 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 court’s 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 conflicting judgments on the points for determination in the case which were of importance and the matter was referred to the Hon’ble 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 section 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 judgment and ultimately the case came to be decided in accordance with the majority view.
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 Section 77 of the Punjab Tenancy Act upon the relationship of landlord and tenant between the parties would not operate as res judicata and it would be open to challenge in a subsequent suit or any other collateral proceedings between the parties. The Full Bench thereafter directed the matter to go back to the learned single Judge for disposal in accordance with the decision of the Full Bench. Aggrieved by the aforesaid order and decision the appellants have come up in appeal before this Court.
It may be mentioned that of the three learned Judges, Sandhawalia, CJ. was of the view that it was to operate as res judicata, but the other two learned judges, namely, J.V. Gupta, J. and S.P. Goyal, J. held contrary views. It is the propriety and the validity of the majority view of the Full Bench which calls for an examination in this appeal. C
In order to appreciate the controversy in appeal it is necessary to refer to the relevant provisions of the said Act. The preamble of the Act states that it was an Act to amend the law relating to the tenancy of land in Punjab. These provinces of Punjab had the distinction between the occupancy tenants and tenants-at-will with the rest of its early revenue Code from the United Provinces. The possession of a right to fixity of tenure by many cultivators in northern India was early recognised. Indeed the fact that in Lower Bengal the connection of persons whom were recognised as proprietors with the land was often far more recent than that of the cultivators inevitably suggested that the latter had rights in the soil that required protection. Fixity of tenure of resident cultivators at rents determined by authority was prominent feature of the Bengal settlement as originally planned. Regulation XXVIII of 1803 professed to extend the Bengal system to the North Western Provinces, but it left the subject of tenant right in a vague and uncertain condition. The provisions of Regulation VII of 1922 were more definite. By its 9th section Settlement officers were required not only to prepare a record of "persons enjoying the possession and property of the soil, or vested with any heritable or transferable interest" in it, that is to say, of proprietors, but also of "the rates per bigha .. demandable from the resident cultivators not claiming any transferable property in the soil whether possessing the right of hereditary occupancy or not". It is not necessary to trace the history of these settlement laws which can be found in Douie’s Settlement Manual, 4th Edition. Twelve years’ uninterrupted possession of a holding at the same rate of rent was considered as a sufficient proof of occupancy right in the United Provinces. The twelve years’ rule was very generally adopted in early Punjab settlements, though the best H revenue officers held that it should not be regarded as the sole criterion, and that the quality, as well as the length of occupation should be considered. The Act in question was passed to amend the law of tenancy in Punjab which was later the object of the Act to protect the tenants from the exactions of the landlords The tenants as usual in other parts of the world were in many cases peculiarly liable to oppression or duress from their landlords and in order to protect them quite effectively from the possibility of any such oppression or duress the Act was passed.
The overall scheme of the Act is to provide speedy remedies with regard to disputes between the landlords and tenants and also under what circumstances that relationship comes to an end. It is appropriate to bear in mind the whole basic question involved in this appeal is whether the courts created by this Act have limited power and jurisdiction or plenary powers and jurisdiction. In this appeal we are concerned with the amplitude of the jurisdiction of the courts under section 77 of the Act which deals with Courts and suits cognizable by them. Relevant portion of section 77 of the Act provides as follows:
"77. Revenue Courts and suits cognizable by
them.-(1) When a Revenue officer is exercising
jurisdiction with respect to any such suit as is
described in sub section (3), or with respect to
an appeal or other proceeding arising out of any
such suit, he shall be called a Revenue Court.
(3) 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-
(e) suit by a landlord to eject a tenant;" A
The controversy with which we are concerned in this appeal is a type of suits indicated in second group under clause (e), namely, suits by a landlord to eject a tenant
The question of res judicata was analysed in the background of land acquisition proceedings by this Court in Raj Lakshmi Dasi and others v. Banamali Sen and others, [1953] 4 S C.R. 154. There this Court observed that the right to receive compensation for property acquired in land acquisition proceedings as between rival claimants depended on the title to the property acquired and the dispute as to title was raised by the parties and had to be decided by the Land Acquisition Judge after contest, so this decision as to title operates as res judicata in a subsequent suit between the same parties on the question of title The binding force of a judgment delivered under the Land Acquisition Act depended on general principles of law and not on section 11 of the Civil Procedure Code, and the decision of a Land Acquisition Judge would operate as res judicata even though he was not competent to try the subsequent suit. It has to be emphasised, however that the right to compensation depended upon the title, but here in the instant case the right to ejectment existed only if the relationship of landlord and tenant existed. The Revenue Court did not have jurisdiction whether the claimant was the landlord to be entitled to eject the tenant.
Our attention was drawn by Sree Harbans Lal, learned counsel appearing for the appellants to section 98 of the Act, as to the power of the Revenue Court to refer to the Civil Court a decision by the Revenue Court if it thought proper and also to section 99, where there is power to refer to High Court question as to jurisdiction. These provisions in our opinion, do not in any way affect the question whether the decision of the Revenue Court under the Revenue Act can operate as res judicata in certain cases like the present. The limits of the jurisdiction would be apparent by the fact that in all suits by a landlord to reject a tenant, do not encompass suits to decide whether a person is a tenant or not or whether the plaintiff is a landlord or not. The question was answered by this Court in Om Prakash Gupta v. Rattan Singh and another, l 19641 1 S.C.R. 259 where Sinha, C.J. dealing with the Delhi Rent Control Act observed at pages 264 and 265 as follows:
"The most important question that arises for
determination
in this case is whether or not the Rent Control
authorities had jurisdiction in the matter in
controversy in this case-ordinarily it is for the
Civil Courts to determine whether and, if so, what
jural relationship exists between the litigating
parties But the Act has been enacted to provide
for the control of rents and evictions of tenants,
avowedly for their benefit and protection. The Act
postulates the relationship of landlord and tenant
which must be a pre-existing relationship. The Act
is directed to control some of the terms and
incidents of that relationship. Hence, there is no
express provision in the Act empowering the
Controller, or the Tribunal, to determine whether
or not there is a relationship of landlord and
tenant. In most cases such a question would not
arise for determination by the authorities under
the Act. A landlord must be very ill-advised to
start proceedings under the Act, if there is no
such relationship of landlord and tenant. If a
person in possession of the premises is not a
tenant, the owner of the premises would be
entitled to institute a suit for ejectment in the
Civil Courts, untrammelled by the provisions of
the Act. It is only when he happens to be the
tenant of premises in an urban area that the
provisions of the Act are attracted." (Emphasis
supplied. )
In Shri Raja Durga Singh of Solan v. Tholu, [19631 2 S.C.R. 693, this Court had occasion to consider the question of res judicata in the background of the jurisdiction of the Court. That was a case under section 77 of the Punjab Tenancy Act. In that case the appellant had filed a suit before the Civil Court for the ejectment of the respondent therein on the ground that they were licensees. The respondents claimed that they were occupancy tenants and contended that under section 77 of the Punjab Tenancy Act, 1887, the suit was triable by a revenue court only and not by the civil court. The trial court and the first appellate court decreed the suit holding that the respondents were not tenants. On second appeal the Judicial Commissioner held that the respondents were occupancy tenants and that the civil court had no jurisdiction to entertain the suit. It was held by this Court that the civil court had jurisdiction to entertain the suit and section 77 of the Punjab Tenancy Act was applicable "only to suits between landlord and tenants where there was no dispute that the person cultivating the land was a tenant". But where the status of the defendant as a tenant was not admitted by the landlord, section 77 did not bar a suit in a civil court. This Court held that it would, therefore, be reasonable to infer that the legislature barred only those suits which form the cognizance of a civil court where there was no dispute between the parties that a person cultivating land or who was in possession of land was a tenant. This is precisely what has been held in the two decisions of the Lahore High Court where there was reference at pages 698-699 of the report. In the first of these two cases. Tek Chand J. had observed:
"It is obvious that the bar under clause (4) is
applicable to those cases only in which the
relationship of landlord and tenant is admitted
and the object of the suit is to determine the
nature of the tenancy i.e. whether the status of
the tenant falls under section 5, 6, 7 or 8 of the
Act.
In that case the suit was instituted by someone
claiming to succeed to the tenancy of certain land
on the death of the occupancy tenant. The learned
Judge observed:
’In a suit like the one before us the point
for decision is not the nature of the
tenancy, but whether the defendant is related
to the deceased tenant and if so whether
their common ancestor had occupied the land.
If these facts are established, the claimant,
ipso facto succeeds to the occupancy tenancy.
But if they are found against him, he is not
a tenant at all.’
As these facts were not established the High
Court held that the landlord was entitled to sue
the defendant who had entered on the land
asserting a claim to be a collateral of the
deceased tenant but who failed to substantiate his
claim. This view was affirmed by a Full Bench
consisting of five Judges in the other Lahore
case. In Daya Ram v. Jagir Singh, A.I.R 1956 H.P.
61 the same Judicial Commissioner who decided the
appeal before us has expressed the view that where
in a suit for ejectment the existence of the
relationship of landlord and tenant is not
admitted by the parties the Civil Court had
jurisdiction to try the suit and that such a suit
did not fall under section 77(3) of the Act. In
Magiti Sasamal v. Pandab Bissoi, [1962] 3 S.C.R.
673 this Court was considering the provisions of
section 17(1) of the Orissa Tenants Protection
Act, 1948 (3 of 1948). The provisions of that
section run thus:
’Any dispute between the tenant and the landlord
as re-
gards, (a) tenant’s possession of the land on the
1st day of September, 1947 and his right to the
benefits under this Act, or (b) misuse of the land
by tenant, or (c) failure of the tenant to
cultivate the land properly, or (d) failure of the
tenant to deliver to the landlord the rent accrued
due within two months from the date on which it
becomes pay able, or (e) the quantity of the
produce payable to the landlord as rent, shall be
decided by the Collector on the application of
either of the parties. ’
lt was contended in that case on behalf of
the respondents who claimed to be tenants that
suit for permanent injunction instituted by the
appellant landlord was barred by the provisions of
section 7(1). Dealing with this contention this
Court observed as follows.
’In other words, s. 7(1) postulates the
relationship of tenant and landlord between the
parties and proceeds to provide for the exclusive
jurisdiction of the Collector to try the five
categories of disputes that may arise between the
landlord and the tenant. The disputes which are
the subject-matter of section 7(1) must be in
regard to the five categories. That is the plain
and obvious construction of the words ’any dispute
as regards’. On this construction it would be
unreasonable to hold that a dispute about the
status of the tenant also falls within the purview
of the said section. The scheme of section 7(1) is
unambiguous and clear. It refers to the tenant and
landlord as such and it contemplates disputes of
the specified character arising between them.
Therefore, in our opinion, even on a liberal
construction of section 7(1) it would be difficult
to uphold the argument that a dispute as regards
the existence of relationship of landlord and
tenant falls to be determined by the Collector
under section 7(1). ’ "
As regards the said observations, in so far as the essential facts are concerned, precisely the same is the position in the instant appeal. Here the respondent is claiming to be a mortgagee in possession and not a tenant in possession. In Magiti Sasamal v. Pandab Bissoi, [1962] 3 S.C.R. 673, the appellant had filed in the Civil Court a suit for permanent injunction restraining the respondents from entering the lands in suit on the allegation that the lands belonged to him and were in his cultivatory possession for many years and the respondents had
no right or title and had never cultivated them. The respondents contended that they were tenants of portions of the said lands and were in cultivating possession of the same as tenants. The question which arose for decision was whether having regard to the provisions of section 7(1) of the Orissa Tenants Protection Act, 1948, the Civil Court had jurisdiction to entertain the suit which involved a dispute as to the relationship of landlord and tenant between the parties. It was held that even on a liberal construction of section 7(1) of the Act, it cannot be held that disputes as regards the existence of the relationship of landlord and tenant fall to be determined by the Collector under that section. Disputes which are entrusted to the Collector under section 7(1) are the simple disputes specified therein in the five categories and do not include a serious dispute as to the relationship between the parties as landlord and tenant.
It is well-settled that ouster of jurisdiction of civil courts should not be inferred easily. It must be clearly provided for and established.
This question was again viewed in the background of the Slum Areas (Improvement and Clearance) Act, 1956 in Lal Chand (dead) by Lrs. and others v. Radha Kishan, [1977] 2 S.C.R. 522, where this Court reiterated that section 11 was not exhaustive and the principle which motivates that section could be extended to cases which do not fall strictly within the letter of the law. This Court further reiterated that the principle of res judicata was conceived in the larger public interest which required that all litigation must, sooner than later, come to an end. This Court in the State of Tamil Nadu v. Ramalinga Samigal Madam, A.I.R. 1986 S.C.794 has analysed the position in paragraph 8 as follows:
"The principles bearing on the question as to when
exclusion of the Civil Court’s jurisdiction can be
inferred have been indicated in several judicial
pronouncements but we need refer to only two
decisions. In Secretary of State v. Mask and
company, A.I.R. 1940 P.C. lOS at p. 110 the Privy
Council at page 236 of the Report has observed
thus:
’It is settled law that the exclusion of the
jurisdiction of the Civil Courts is not to be
readily inferred but that such exclusion must
either be explicitly expressed or clearly
implied. It is also well settled that even if
jurisdiction is so excluded, the Civil Courts
have jurisdiction to examine into cases where
the provi-
sions of the Act have not been complied with
or the statutory tribunal has not acted in
conformity with the fundamental principles of
judicial procedure.
In Dhulabhai v. State of Madhya Pradesh, [ 1968] 3
S.C.R. 662 Hidayatullah, C.J., speaking for the Court,
on the analysis of the various decisions cited before
the Court ex pressing diverse views, called out as many
as 7 propositions; out of them the first two which are
material for our purposes are these:
’(1) Where the statute gives a finality to
the orders of the special tribunal the civil
Court’s jurisdiction must be held to be
excluded if there is adequate remedy to do
what the civil Courts would normally do in a
suit. Such provision, however, does not
exclude those cases where the provisions of
the particular Act have not been complied
with or the statutory tribunal has not acted
in conformity with the fundamental principles
of judicial procedure.
(2) Where there is an express bar of the
jurisdiction of the Court, an examination of
the scheme of the particular Act to find the
adequacy or the sufficiency of the remedies
provided may be relevant but is not decisive
to sustain the jurisdiction of the Civil
Court.
Where there is no express exclusion the
examination of the remedies and the scheme of
the particular Act to find out the intendment
becomes necessary and the result of the
inquiry may be decisive. In the latter case
it is necessary to see if the statute creates
a special right or a liability and provides
for the determination of the right or
liability and further lays down that all
questions about the said right and liability
shall be determined by the tribunals so
constituted, and whether remedies normally
associated with actions in civil Courts are
prescribed by the said statute or not’.
Applying the aforesaid principles, it appears to us that if the dispute was as to the nature of the relationship of landlord and tenant between the parties, the Revenue Court under the Punjab Tenancy A Act had no jurisdiction when there was admitted position, the relationship of landlord and tenant was accepted, the remedies and rights of the parties should be worked out under the scheme of the Act.
A salutary and simple test to apply in determining whether the previous decision operated as res judicata or on principles analogous thereto is to find out whether the first court, here the Revenue Court could go into the question whether the respondent was a tenant in possession or mortgagee in possession. It is clear in view of langugage mentiond before that it could not. If that be so there was no res judicata. The subsequent civil suit was not barred by res judicata.
In that view of the matter, we are of the opinion that the High Court of Punjab and Haryana was right in holding that there was no res judicata so far as the second suit based on the assertion of the title of the respondent was concerned. The appeals must, therefore, fail and are accordingly dismissed with costs. D N.P.V. Appeals dismissed.