Assa Singh (D) By Lrs. vs Shanti Parshad (D) By Lrs. .

ASSA SINGH (D) BY LRs. ...APPELLANT(S)

VERSUS

SHANTI PARSHAD(D)BY LRs. & OTHERS ...RESPONDENT(S)

J U D G M E N T

K.M. JOSEPH, J.

1. Leave granted.

2. An application for Ejectment was filed by the

Appellants and Proforma Respondents 2 to 21 for

ejectment of Respondent No. 1 on the ground of non-

payment of rent. The application was filed under the Signature Not Verified

Punjab Security of Land Tenures Act, 1953 hereinafter Digitally signed by JAGDISH KUMAR Date: 2021.11.17 17:31:21 IST Reason:

referred to as ‘the Act’. The application was allowed

1 by the Assistant Collector 1st Grade, Ferozepur by Order

dated 13.09.1972. The appeal filed by the first

respondent before the Collector, Ferozepur under

Section 24 of ‘the Act’ was dismissed vide order dated

04.09.1973. The Commissioner by order dated 04.02.1974

on revision filed by the first respondent recommended

to the Financial Commissioner, Punjab for setting aside

the order leaving the parties to seek relief through

the Civil Court. This reference was disallowed and the

revision petition of the first respondent was dismissed

by the Commissioner, Punjab vide his order dated

22.08.1974. The review filed by the first respondent

was dismissed. The first respondent instituted a Suit

wherein the relief sought as noted in the judgment of

the Trial Court is:

“... declaration to the effect that agricultural land measuring 594 kanals 17 marlas as per details given in the heading of the plaint, situated in Jhoke Harl Har, Tehsil Ferozepure as entered in Jamabandi for the year 1965-66 is owned by Mandir Jhoke Hari Har (Public Religious Endowment) through Shri Inder Singh son of Harnam Singh resident of village Jhoke Hari Har, one of the worshippers and defacto trustee of Mandir Jhoke Hari Har (defendant No.18) and defendant No. 1 to 17 have got no concern with the land and a decree for ejectment of 2 land in dispute obtained by defendant No. 1 to 17 against the plaintiff from the Assistant Collector Grade-I, Ferozepure is nullity and without jurisdiction with consequential relief of permanent injunction restraining the defendants No. I to 17 from taking actual possession of the suit land.”

3. The Trial Court, by Judgment dated 18.11.1978,

decreed the Suit. The Appeal carried by the appellants

before the 1st Additional District Judge, Ferozepur,

was dismissed. By the impugned Decree and Judgment, the

Regular Second Appeal No. 1777 of 1981, has been

dismissed.

4. We heard the learned Counsel for the Appellants

and learned Counsel for the Respondents. The only

question, which falls for our decision, revolves around

the interpretation of Section 25 of the Act. Section

25 of the Act reads as follows:

“Section 25. Exclusion of courts and authorities - Except in accordance with the provisions of this Act, the validity of any proceedings or order taken or made under this Act shall not be called in question in any court or before any other authority.”

3

5. In other words, the only contention asserted by

the appellants is that the suit filed by the first

respondent is clearly barred. On the other hand, the

contention of the respondents is that, having regard

to both the facts and law, the Suit is maintainable.

THE FINDINGS IN THE IMPUGNED JUDGMENT

6. It is necessary to notice the case of the

appellants. They claim that they purchased the suit

property which measured 594 Kanals and 17 Marlas by

sale deed dated 16.11.1956 from Mahant Ramji Dass. The

first respondent was the tenant in the said land. The

case of the first respondent, on the other hand, was

that, he obtained the Suit land on lease on 20.10.1955

from Mahant Ramji Dass as the Manager of the Mandir for

a period of five years on payment of Rs.1,000/- per

annum as rent. Thereafter, the suit property was leased

to him for a period of 20 years from 1960 to 1980.

While so, it is the further case of the first respondent

that Mahant Ramji Dass sold the Suit land to the

appellants vide registered sale deed dated 16.11.1956,

4 without having any title in the property, as the

property belonged to the Mandir. Thus, the first

respondent set up the case that he was not a tenant

under the appellants. Resultantly the order passed for

eviction was null and void being without jurisdiction.

The appellants took up the contention that the land was

the personal property of Mahant Ramji Dass and on

failure of the first respondent as tenant to pay the

rent the application before the Revenue Court was

perfectly maintainable.

7. The Trial Court framed 8 issues. They are as

follows: -

“l. Whether the plaintiff secured the disputed land on lease from Mandir Jhoke Hari Har defendant No.18 through its Manager Ramji Dass deceased and is in possession of the disputed land as lessee of defendant No.18? OPP

2. Whether Mahant Ramji Dass (deceased) was the absolute owner of the disputed land having right to alienate the same? OPD

3. Whether Mahant Ramji Dass (deceased) validly sold the disputed land in favour of defendants No. I to 17 by means of

5 registered sale deed dated 16.11.56? If so, its effect? OPD

4. Whether the orders of ejectment passed by the Revenue Authorities are void and illegal in view of the grounds mentioned in para No.4 of the plaint? OPP

5. Whether the present suit is barred by principle of res judicata? OPD

6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD

7. Whether the plaintiff is estopped from challenging the title of Mahant Ramji Dass deceased in the disputed property? OPD

8. Whether there is no Mandir by the name of Mandir Jhoke Hari Har, if so, what is its effect? (Onus objected to)”

8. The Trial Court held that the suit land was the

property of the Mandir. It was leased to the first

respondent plaintiff by its Manager Mahant Ramji Dass.

It proceeded to hold further that there is no valid

sale vide registered sale deed dated 16.11.1956 to the

appellants, as Mahant Ramji Dass had no title in the

property to convey. Answering Issue No. 4, it was found

6 that the revenue authorities had no jurisdiction to

order eviction. There was no relationship of landlord

and tenant between the appellants and the respondent.

Issue No. 6 was not pressed and it stood decided against

the appellants. Equally, the Court found that the Suit

was not barred by principle of res judicata. The

respondent was found not estopped from challenging the

title of Mahant Ramji Dass.

9. The First Appellate Court found that Section 116

of the Indian Evidence Act, 1872 (for short ‘Evidence

Act’) did not apply to a person who claimed to be a

representative of the landlord by assignment by merely

purchasing the landlord’s interest. The purchaser did

not become the landlord entitled to the protection of

Section 116 of Evidence Act. It was only if the tenant

attorned to him that benefit of Section 116 of Evidence

Act became available. The Appellate Court found that

there was no evidence that first respondent had paid

any rent to the appellants or recognized them as the

landlords. There was no privity of contract. In other

words, Section 116 of the Evidence Act was available

only to a person who was the landlord at the beginning

7 of the tenancy. The tenancy in favour of the first

respondent had commenced based on the lease deed dated

20.10.1955 executed by the General Attorney of Mahant

Ramji Dass, Shri Balak Nath. This lease was found to

be period of 5 years wherein the Mandir was described

as the owner in possession. Therefore, when the

subsequent lease deed was executed dated 25.01.1956,

the first respondent was already in possession as a

tenant. The tenancy was under the Mandir and not under

the Mahant in an individual capacity. The further

finding of the Appellate Court is that, in the

Jamabandis for the year 1939-40, the Suit property had

been recorded as owned by the Mandir under the

management of Mahant Ramji Dass Chela Baba Mohan Dass.

In the earlier Jamabandis though the name of the Mandir

did not occur as owner, it was found that the property

had been devolving from Guru to Chela. The natural

heirs were being excluded. Mahant Ramji Dass, through

the General power of Attorney, had admitted that the

Suit property was owned by the Mandir. Mahant Ramji

Dass was only its Manager. The first respondent was not

a party to the decree dated 26.08.1960 obtained by

8 Mahant Ramji Dass. Equally, the Mandir was also not a

party under the revenue records. Mahant Ramji Dass was

not the owner of the property mutation in favour of the

vendees was not being sanctioned. Then, the Mahant

filed the said Suit, wherein, the appellants were made

defendants, who admitted the claim of Mahant Ramji

Dass. The suit went uncontested in the First Appellate

Court. Consequently, it is found that the Decree, dated

26.08.1960, was merely a collusive decree. Mahant Ramji

Dass being only the manager of the suit property was

bereft of power to sell and the sale deed was invalid.

Consequently, the appellants did not acquire title.

10. The High Court, by the impugned Judgment, agreed with the concurrent findings of the courts. The High

Court went on to find Mahant Ramji Dass was only the

Manager of the Mandir and he did not have power to

alienate its property. Protection under Section 116 of

the Evidence Act was not available to the appellants

as there was no landlord-tenant relationship between

the appellants and the first respondent. The contention

further that the sale deed and the Decree dated

26.08.1960, could only be challenged by the Mandir and

9 not by the first respondent was rejected. It was found

that no such plea was raised in the courts below. It

was further found that the legal proposition that a

revenue court authorities could not decide the question

of title has not been disputed by the Counsel for the

appellants. The revenue authority acted illegally by

deciding the question of title and passing Order of

Eviction.

11. We are concerned in this case with the bar

of jurisdiction of the Civil Court under Section

25 of the Act. The Act must be read and

understood bearing in mind, the provisions of

the Punjab Tenancy Act, 1887 (hereinafter

referred to as ‘the Tenancy Act’, for short).

The word ‘tenant’ is defined in the Tenancy Act

in Section 4(5). The word ‘landlord’ was defined

in Section 4(6) of the said Act, as meaning the

person under whom a tenant holds land, and to

whom, the tenant, or but for the special contract

would be, liable to pay rent for that land. The

10 word ‘tenant’ and ‘landlord’ were defined to

include the predecessors and successors in

interest of a tenant and landlord, respectively.

Under Section 5, tenants having right of

occupancy was described and declared. Chapter

III of the Tenancy Act dealt with ‘rents’

generally. Rents were to consist of either

produce rents or cash rents. Section 39 provided

for ground of ejectment of occupancy tenant.

12. Section 40 provides for ejectment of tenants for a fixed term. The third categorization of tenant in the

matter of ejectment is captured in Section 41, which

provided for ejectment of tenant from year to year.

Section 42 provided for restriction on ejectment. It

reads as follows:

“42. Restriction on ejectment – A tenant shall not be ejected otherwise than in execution of a decree for ejectment, except in the following cases, namely:-

(a) when a decree for an arrear of rent in respect of his tenancy has been passed against him and remains unsatisfied;

(b) when a tenant has not a right of occupancy and does not hold for a fixed term 11 under a contract or a decree or order of competent authority.”

13. Section 43 provided for the exceptional cases mentioned in Section 42, viz., when a tenant could be

ejected, otherwise than in execution of a Decree for

Ejectment. The application was to be made to a Revenue

Officer. Sections 44 and 45 provided for circumstances

mentioned in Section 42(a) and 42(b), prospectively.

Section 50A provided for a bar to Civil Court

entertaining a Suit filed by a tenant contesting his

liability to ejectment or to recover possession or

occupancy rights or to recover compensation in the

circumstances mentioned therein. Chapter VII deal with

jurisdiction and procedure. Section 75 provided that

there shall be the same classes of Revenue Officers as

provided in the Punjab Land Revenue Act, 1887. Section

76 provided for applications and proceedings to be

considered by the Revenue Officer. They were divided

into three groups. Section 77(1) reads 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

12 (3); or with respect to an appeal or other proceeding arising out of any such suit, he shall be called a Revenue Court.”

14. Section 77(3) provided that the Suit mentioned thereafter, were to be instituted, heard and determined

by the Revenue Court and no other Court was to take

cognizance of any dispute or matter with respect to

which any such Suit may be instituted. Again, it is

divided into three groups. In the first group, Clause

(e) was “Suits by landlords to eject the tenant”. Under

Section 78, the Financial Commissioner was conferred

general superintendence and control over all other

Officers and Revenue Courts. Section 80 provided for

Appeal from an Original or Appellate Order or Decree

made under the Tenancy Act by a Revenue Officer or

Revenue Court. Section 82 provided for power of review

by a Revenue Officer. Section 84 provided for the power

of Revision with the Financial Commissioner, the

Commissioner and Collector. Section 88 provided for the

procedure to be followed by the Revenue Court. The

Revenue Officer and the Revenue Court are empowered

under Section 89 to summon any person. Section 98 13 contemplated power to refer a party to a Civil Court.

Section 99 clothes the Presiding Officer of a Civil or

a Revenue Court entertaining doubts regarding

jurisdiction to refer a matter to the High Court.

Section 100 empowered the High Court in certain

circumstances to validate proceedings held under

mistake as to jurisdiction.

15. The Act of 1953, with which, we are concerned, received the assent of the President on 15.04.1953. The

Act went on to introduce the concept of permissible

area, which was defined in the Act. It further provided

for protection of the tenant from being evicted except

in certain circumstances. The word “land owner” was

defined in Section 2(1) as follows:

“2(1) “Landowner” means a person defined as such in the Punjab Land Revenue Act, 1887 (Act XVII of 1887), and shall include an “allottee” and “lessee” as defined in clauses(b) and (c), respectively, of section 2 of the East Punjab Displaced Persons (Land Resettlement) Act, 1949 (Act XXXVI of 1949), hereinafter referred to as the “Resettlement Act”. Explanation – In respect of land mortgaged with possession, the mortgagee shall be deemed to be the landowner.”

14

16. “Tenant” was assigned the same meaning as was assigned under the Tenancy Act and was to include a

sub-tenant and self-cultivating lessee but not to

include a present holder, as defined in Section 2 of

the Resettlement Act. Section 9 provided for the

liability of the tenant to be ejected. This was to

apply not withstanding anything contained in any other

law for the time being in force. Section 9(ii) provided

for ejecting of the tenant if he failed to pay the rent

regularly without sufficient cause. Section (iii)

further provided for ejectment of the tenant in arrears

of rent at the commencement of the Act. There were

other grounds also available. Section 14A of the Act

read as follows:

“14-A. Not with standing anything to the contrary contained in any other law for the time being in force, and subject to the provisions of section 9-A.-

(i) a land owner desiring to eject a tenant under this Act shall apply in writing to the Assistant Collector First Grade having jurisdiction, who shall thereafter proceed as provided for in sub-section (2) of sub-section 10 of this Act, and the provisions of sub-section (3) of the said section shall also apply in relation to such

15 application, provided that the tenants rights to compensation and acquisition of occupancy rights, if any under the Punjab Tenancy Act, 1887 ( XVI of 1887), shall not be affected;

(ii) a land-owner desiring to recover arrears of rent from a tenant shall apply in writing to the Assistant Collector Second Grade, having jurisdiction, who shall thereupon send a notice in the form prescribed to the tenant either to deposit the rent or value thereof , if payable in kind or give proof of having paid it or of the fact that he is not liable to pay the whole or part of the rent or of the fact of the landlords refusal to receive the same or to give a receipt, within the period specified in the notice. Where, after summary determination, as provided for in sub-section (2) of Section 10 of this Act, the Assistant Collector finds that the tenant has not paid or deposited the rent he shall eject the tenant summarily and put the landowner in possession of the land concerned;

(iii) (a) if a landlord refuses to accept rent from his tenant or demands rent in excess of what he is entitled to under this Act, or refuses to give a receipt, the tenant may in writing inform the Assistant Collector second Grade, having jurisdiction of the fact; 1New section 14-A, added by Punjab Act, 11 of 1955.

(b) on receiving such application, the Assistant Collector shall by a

16 written notice require the landlord to accept the rent payable in accordance with this Act, or to give a receipt, as the case maybe, or both, within 60 days of the receipt of the notice.”

17. Section 23 read as follows:

“23. Abrogation of pending decrees, orders and notices:

No decree or order of any court or authority and no notice of ejectment shall be valid to the extent to which it is consistent with the provisions of this Act.”

18. Section 24 provided for Appeal, Review and Revision and it reads as follows:

“24. The provisions in regard to appeal, review and revision under this Act, shall, so far as may be, the same as provided in Sections 80, 81, 82, 83 and 84 of the Punjab Tenancy Act, 1887 (Act XVI of the 1887).”

19. It is thereafter that Section 25 provided:

“25. Exclusion of courts and authorities:

Except in accordance with the provisions of this Act, the validity of any proceeding or order taken or made under this Act, shall not be called in question in any court or before any other authority.”

17

20. We are called upon to decide the ambit of Section 25 of the Act, which is the only contention raised by

the appellants. We have already noticed that the

appellants have lost in all the three Courts on merits.

21. The contention of the respondent, who successfully instituted the Suit in question and prosecuted the

same, is that the bar on the Section 25 will not apply,

having regard to the fact that there is a dispute

relating to the very existence of landlord-tenant

relationship. It is his contention that the ouster of

the Civil Court’s jurisdiction does not apply in view

of the fact that plaintiff-tenant does not admit that

the appellants are his landlords. Such a question

cannot be decided by the Authority in an action under

Section 14A of the Act. Equally, the incompetency is

applicable to the Appellate Authority and the

Revisional Body, viz., the Collector and the

Commissioner. In fact, the Financial Commissioner

rightly opined that it is a matter for consideration

by a Civil Court.

18

22. To recapitulate the facts, application for

ejectment was filed by the appellants claiming to have

purchased the rights of the previous landlord by way

of sale deed dated 16.11.1956. The dispute was whether

the Mandir was the owner and the Mahant was competent

in his own rights to convey the rights of the land

owner. The Assistant Collector, Collector and the

Commissioner repelled the contention of the respondent-

tenant, by holding that in view of the transfer by the

sale deed dated 16.11.1956 by the Mahant, the

appellants became landlords, competent to eject the

respondent-tenant. The findings of the Civil Courts,

on the other hand, is that the respondent-tenant has

never paid rent and attorned to the appellants and the

Mandir was the owner and no rights were conveyed to the

appellants under the sale.

23. Both parties have relied upon a large body of case law.

19

THE CASE LAWS RELIED UPON BY THE APPELLANTS

24. They are as follows: i. In Shankar Singh Etc. v. Mangal Singh Etc.1, an ex

parte Order of Ejectment passed by the Assistant

Collector came to be set aside by the Collector.

The Collector ordered the tenant to be put back in

possession. The learned Judge found assurance in

the principle that an act of Court could not cause

injury to any of the parties. The Court relied upon

Rules made under the Act and also the Tenancy Act.

It was further, no doubt, observed that, under

Section 25 of the Act, the Order could not be

challenged in a Civil Court and the Suit was,

therefore, barred under Section 25. We may at once

notice that this case did not involve any dispute

concerning the existence of landlord-tenant

relationship.

ii. In State of Punjab (now Haryana) and others v. Amar

Singh and another2, a Bench of three learned Judges

1 AIR 1973 P&H 307 2 (1974) 2 SCC 70 20 had to consider the question, inter alia, as to

whether the expression “transfer” or “other

disposition of land”, in Clause (b) of Section 10A

of the Act, included involuntary transfer of a part

of holding of a land owner by operation of an Order

forcing a land owner to sell a part of his holding

to a tenant under Section 18 of the Act. In the

Majority Judgment, the contention of the

appellant-State was accepted. Justice R.S.

Sarkaria dissented. In the course of his dissent,

while surveying the Act and having considered the

scheme of the Tenancy Act as well, the learned

Judge held as follows:

“101. Section 25 of the Act provides:

“Except in accordance with the provisions of this Act, the validity of any proceedings of order taken or made under this Act shall not be called in question in any Court or before any other authority.”

102. On analysis of the Section, it is clear that it gives a two-fold mandate. On one hand it debars the jurisdiction of Courts or other authorities to question the validity of any proceeding or order taken or made under the Act, and on the other it prohibits the impeachment of such orders or proceedings in a manner which is not in accordance with the 21 provisions of the Act. It indicates that decisions of the authorities under the Act can be challenged only by way of appeal, review or revision as provided in Sections 80, 81, 82, 83 and 84 of the Punjab Tenancy Act, 1887, made applicable by Section 24 of the Act, or in the Rules made under the Act.

103. The Punjab and Haryana High Court has consistently taken this view. The Full Bench in Dhaunkal v. Man Kauri (supra) also held that the Assistant Collector while dealing with the purchase application under Section 18 has no jurisdiction to sit in appeal or revision over the order of the Surplus Area Collector passed in surplus area proceeding and he has no jurisdiction to ignore that order.

104. The rule equally holds good in the converse. In the Full Bench decision in Mam Raj v. Punjab State (supra), it was held that once an application of the tenant under Section 18 has been allowed and the order is not set aside in appeal or revision, the same becomes final and remains immune to an attack against its validity on any ground including that of collusion, before the co-

ordinate authorities under the Act dealing with the question of determination of surplus area. If I may say so with respect, this proposition laid down by the Full Bench is unexceptionable.”

We may incidentally notice the substance of

the question which arose in the said case. The Act 22 contemplates a maximum holding, which is

permissible, which is described as the permissible

area. The Act also provided for the excess land or

the surplus land to be vested in the State to be

utilised for assigning the land to the landless.

The tenant of a landlord, in certain circumstances,

could obtain an order of purchase. This was

provided in Section 18. Section 10A(b) of the Act,

on the other hand, provided that ‘transfer’ or

‘other dispossession of property’ in certain

circumstances, were to be treated as void. Justice

R.S. Sarkaria took the view that merely because

there was a compromise, as long as the ingredients

of the statutory provisions were satisfied, such

an Order could not be brushed aside on the ground

that it was born out of compromise. As we shall

see from a consideration of other decisions that

this Judgment may not advance the case of the

appellants that Section 25 will be an absolute bar.

iii. We do not think that the Judgment of this Court in

Salem Advocate Bar Association, T.N. v. Union of

23 India3 should detain us as it does not specifically

deal with the question at hand.

iv. In Kamla Devi Widow of Hans Raj, etc. v. Financial

Commissioner (Appeals), Punjab and others4, a Bench

of the Punjab and Haryana High Court was dealing

with an Order of the learned Single Judge allowing

the Writ Petition, by which, setting aside the

Order of the Authorities under the Act, he ordering

the appellant’s-tenant’s eviction. A perusal of

the said Judgment does not show that there was any

dispute relating to landlord-tenant relationship.

In fact, the question revolved around whether right

to purchase the right of the landlord by the tenant

stood crystalised upon the declaration of the

surplus area. It was found by the Court that any

subsequent Act, after the declaration of the

surplus area by a “big land owner”, by transferring

of the land by a big land owner or his death before

the application of purchase was allowed or even

the enactment of the 1972 Act (by which the Act

3 (2005) 6 SCC 344 4 (2013) SCCOnline P&H 7911 24 was repealed), did not adversely affect the right

of the appellant-tenant to effect purchase of

landlord’s right under Section 18 of the Act. We

would observe that this Judgment, does not, in any

way, advance the case of the appellants.

v. The Judgment of learned Single Judge in R.S.A. No.

948 of 2017 of the High Court of Punjab and Haryana

also does not, in any way, assist the case of the

appellants. On facts, it does not have application

as regards the question at hand.

vi. The last Judgment relied upon by the appellants is

Judgment of this Court in Bhagwat Sharan (Dead

Through Legal Representatives) v. Purushottam and

others5. We take it that the appellants seek to

derive support from following paragraphs:

“26. It is also not disputed that the plaintiff and Defendants 1 to 3 herein filed suit for eviction of an occupant in which he claimed that the property had been bequeathed to him by Hari Ram. According to the defendants, the plaintiff having accepted the will of Hariram and having taken benefit of the same, cannot turn around and urge that the will is not valid and that the entire property is a joint

5 (2020) 6 SCC 387 25 family property. The plaintiff and Defendants 1 to 3 by accepting the bequest under the will elected to accept the will.

It is trite law that a party cannot be permitted to approbate and reprobate at the same time. This principle is based on the principle of doctrine of election. In respect of wills, this doctrine has been held to mean that a person who takes benefit of a portion of the will cannot challenge the remaining portion of the will.

In Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd. [Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd., (2013) 5 SCC 470 : (2013) 3 SCC (Civ) 153 : AIR 2013 SC 1241] , this Court made an observation that a party cannot be permitted to “blow hot and cold”, “fast and loose” or “approbate and reprobate”. Where one party knowingly accepts the benefits of a contract or conveyance or an order, it is estopped to deny the validity or binding effect on him of such contract or conveyance or order.

27. The doctrine of election is a facet of law of estoppel. A party cannot blow hot and blow cold at the same time. Any party which takes advantage of any instrument must accept all that is mentioned in the said document. It would be apposite to refer to the treatise Equity—A Course of Lectures by F.W. Maitland, Cambridge University, 1947, wherein the learned author succinctly described principle of election in the following terms:

26

“The doctrine of election may be thus stated : that he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it….”

This view has been accepted to be the correct view in Karam Kapahi v. Lal Chand Public Charitable Trust [Karam Kapahi v. Lal Chand Public Charitable Trust, (2010) 4 SCC 753 : (2010) 2 SCC (Civ) 262] . The plaintiff having elected to accept the will of Hari Ram, by filing a suit for eviction of the tenant by claiming that the property had been bequeathed to him by Hari Ram, cannot now turn around and say that the averments made by Hari Ram that the property was his personal property, is incorrect.”

vii. This is essentially a matter relating to merit

concluded by decision of three courts. Further on

facts, we do not think the principles are

attracted.

27 CASE LAW RELIED UPON BY THE RESONDENT- TENANT

25. They are as follows:

a. In Magiti Sasamal v. Pandab Bissoi6, the case arose

under the Orissa Tenant Protection Act, 1948. Section

7(1) of the Orissa Tenant Protection Act provided as

follows:

“6. xxx xxx xxx “Any dispute between the tenant and the landlord as regards, (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 the 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 payable, 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”.”

The appellant laid a Suit for Inunction in the

Civil Court. The respondent-defendant therein

pleaded that they were tenants and contended that

6 AIR 1962 SC 547 28 Section 7 posed a bar to the Civil Court entertaining

the Suit. This Court went on to hold as follows:

“10. Let us then revert to Section 7. It would be noticed that Section 7(1) has expressly and specifically provided for five categories of disputes which are within the jurisdiction of the Collector and which must therefore be taken to be excluded from the jurisdiction of the civil court. On a reasonable construction of Section 7(1) a dispute specified by Section 7(1)(a) would be a dispute between a tenant and a landlord in regard to the former's possession of the land on 1-9-1947. It is clear that the dispute to which Section 7(1)(a) refers is a narrow dispute as to the possession of the tenant on a specific date and his consequential right to the benefits of the Act. The same is the position with regard to the other categories of the dispute specified by Section 7(1). In none of the said categories is a dispute contemplated as to the relationship of the parties itself. In other words, Section 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 29 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 the relationship of landlord and tenant falls to be determined by the Collector under Section 7(1).

11. … If a serious dispute as to the existence of the relationship of landlord and tenant between the parties had been covered by Section 7(1) it is difficult to imagine that the legislature would have left the decision of such an important issue to the Collector giving him full freedom to make such enquiries as he may deem necessary. As is well known, a dispute as to the existence of the relationship of landlord and tenant raises serious questions of fact for decision, and if such a serious dispute was intended to be tried by the Collector the legislature would have provided for an appropriate enquiry in that behalf and would have made the provisions of the Code of Civil Procedure applicable to such an enquiry. Section 7(2) can be easily explained on the basis that the relationship between the parties is outside Section 7(1) and so the disputes that are covered by Section 7(1) are not of such a nature as would justify a formal enquiry in that behalf. The provisions of sub-sections (3), (6) and (7) also indicate that the relationship between the parties is not, and cannot be, disputed before the Collector.

The parties arrayed before him are landlord and tenant or vice versa, and it is on the basis of such relationship between them that he proceeds to deal with the disputes entrusted to him by Section 7(1).”

30 b. In Shri Raja Durga Singh of Solon v. Tholu and

others7, the Appeal before this Court arose from a

Judgment rendered by the Judicial Commissioner in

Second Appeal, taking the view that the Suit in the

said case could not be tried by the Civil Court but

was to be tried by the Revenue Court under Section

77 of the Tenancy Act, which applied to Himachal

Pradesh as well. The Court drew support from Magiti

Sasamal (supra) and held that the observation in

Magiti Sasamal (supra) would apply to the case also

in as much as relationship of landlord and tenant as

between the parties to the Suit was not admitted by

the appellant-plaintiff. This Court held:

“6. 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 [AIR (1956) Him Pra 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

7 AIR 1963 SC 361 31 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 [AIR (1962) SC 547] this Court was considering the provisions of Section 7(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 regards, (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 the 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 payable, 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.”

7. It was contended in that case on behalf of the respondents who claimed to be tenants that the 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, Section 7(1) postulates the relationship of tenants 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

32 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 the relationship of landlord and tenant falls to be determined by the Collector under Section 7(1).”

The observations of this Court would clearly apply to the present case also inasmuch as the relationship of landlord and tenant as between the parties to the suit is not admitted by the appellant.”

c. In Richpal Singh and others v. Dalip8, a Decree of

Ejectment was passed under Section 77(3) of the

Tenancy Act, on the ground of default of rent. The

8 (1987) 4 SCC 410 33 tenant was evicted, the Decree having become final

under the Tenancy Act. He, thereafter, filed a Suit

in the Civil Court against the appellant therein,

contending that he was a mortgagee and not a tenant.

A Full-Bench was constituted to hear the question as

to whether the decision of the Revenue Court, under

Section 77 of the Tenancy Act, or of the Rent

Controller, could operate as res judicata. This

Court, in Richpal Singh and others (supra), followed

the decision in Shri Raja Durga Singh of Solon

(supra) and also the Full Bench of the Lahore High

Court in ILR 1942 (24) Lahore High Court 191 (Full

Bench), and held as follows:

“14. 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 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.

15. A salutary and simple test to apply in determining whether the previous decision operates as res judicata or on principles analogous thereto is to find out whether the

34 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 language mentioned before that it could not. If that be so there was no res judicata. The subsequent civil suit was not barred by res judicata.”

d. A Bench of five learned Judges of Punjab and Haryana

High Court, in the decision in State of Haryana and

others v. Vinod Kumar and others dated 14.10.1985,

Second Appeal No. 2930 of 1980, took the view that a

Suit lay despite the bar under Section 25 of the Act

to challenge an Order, which is a nullity even though

passed by the Authority under the Act, in a situation

where no notice was served by the Collector before

the Order was passed. This case would not have any

application in the facts in this case.

26. In Heman and another Appellants v. Tulsi Ram

(died), represented by Lrs. [in R.S.A. No. 1511 of 1970

dated 07.01.1982], an Application was filed under

Section 14A of the Act. The defendant denied the title

of the plaintiff and claimed that they were the owners.

The Punjab and Haryana High Court held that the Civil

35 Court had jurisdiction to entertain the Civil Suit. It

was, inter alia, held on the fact “once a tenant denies

the title of the landlord, they become trespassers of

the suit land and are, therefore, liable to eviction

therefrom”. This is so despite the fact that the Civil

Court found that the defendants were tenants.

27. In Chandu Lal v. Kalia and Goria (in Civil Revision No. 849 of 1973, decided on 06.01.1976), the learned

Single Judge of the Punjab and Haryana High Court was

dealing with the bar under Sections 45, 50 and 50A of

the Punjab Tenancy Act in the light of the jurisdiction

conferred under Section 77 (3) (f) and (g) of the Act.

28. The tenant, who was ordered to be ejected under Section 45(5), filed a Suit, contesting his liability

to be ejected. The Court took the view that the bar

under Section 50 A was confined only in respect of a

suit when ejectment was ordered under Section 46 (6)

of the Act. The bar did not apply in regard to the

tenant, as he was ordered to be ejected under Section

45(5).

36

29. In Kul Bhushan etc. v. Faquira and others (in L.P.A. No. 35 of 1974, decided on 10.03.1976), a

Division Bench of Punjab and Haryana High Court had to

consider the following facts – The surplus area of a

big land owner was determined under the Act.

Thereafter, he died. After two and a half years, the

surplus area was allotted to tenants. Possession was

also given to them. Kul Bhushan, along with others, who

were the legal heirs of the big land owner, filed the

Suit for possession, contending that they have become

small land owners upon the death of their predecessor

in interest (the big land owner). Consequently, they

were illegally dispossessed. The defendants set up the

bar under Section 25 of the Act. The Court took the

view that the Order of Utilisation and possession in

favour of the defendants-tenants, having been passed

and implemented upon the death of the big land owner,

Section 10B did not apply. It was found that the matter

was governed by Section 10A(b). On this basis, it was

found that the proceeding or Order, which was sought

to be immunised under Section 25 of the Act, was not

taken or made under the Act.

37

30. This decision may not, on the facts of the present case, advance the case of the respondents.

31. In Ramzani v. Abad Shah [in R.S.A. No. 1975 of 1971, decided on 13.11.1981], the learned Single Judge

of the Punjab and Haryana High Court held that the

jurisdiction of the Assistant Collector under Section

77 of the Tenancy Act was very limited. In the said

case, the appellant had filed the Suit under Section

77 of the Tenancy Act, declaring him as the occupancy

tenant. In the said proceeding, one of the issues,

which arose was, whether respondent was grandson of one

Ashiq Hussain. The Assistant Collector held in the

negative, i.e., against the respondent. Thereafter, a

Suit was filed in the Civil Court. The Court took the

view that the earlier finding would not be res

judicata.

32. In Jia Lal and another v. State of Haryana and others (in Writ Petition No. 1785 of 1968, decided on

04.11.1970), the learned Single Judge of the Punjab and

Haryana High Court purported to follow Magiti Sasamal

(supra) and Shri Raja Durga Singh of Solon (Supra) to

38 find that when the relationship of landlord and tenant

was denied, it could be decided by the Civil Court and

the Writ Petition was not entertained. This was a case

where the title of the writ petitioner who claimed as

landlord was denied and the Court held that the writ

petitioners were entitled to treat the respondent as

trespasser and proceed in the Civil Court.

33. In Jaswant Rai and another v. Bhagwan Dass and another (in R.S.A. No. 1120 of 1963, decided on

31.08.1971), a Bench of the Punjab and Haryana High

Court proceeded on the basis that the Suit in question

was maintainable despite Section 77(3) of the Tenancy

Act. The plaintiff took the contention that he was not

the tenant. It was found that jurisdiction of the Civil

Court was not barred.

34. In Raja Ram and another v. Raghubir Singh and another (in Civil Writ No. 1288 of 1967, decided on

29.5.1970), a learned Single Judge of the Punjab and

Haryana High Court, followed Magiti Sasamal (supra) and

took the view that the existence of relationship of

landlord and tenant being in dispute, the Revenue Court

should stay its hands. It was found that the dispute, 39 in the first instance, must be decided by a Civil Court.

If the relationship was found to exist of landlord and

tenant, the matter should be returned for decision by

the Revenue Court.

35. In Khazan Singh another v. Dalip Singh and another (in L.P.A. No. 623 of 1968, decided on 15.07.1969), a

Division Bench of the Punjab and Haryana High Court,

found that it is open to the Civil Court to go into the

question as to whether the conditions required to be

established before the Assistant Collector could

exercise power under Section 18 of the Act, existed or

not.

Section 18, as already noticed, conferred right on

the tenant to seek purchase of the land from the land

owner. The Court repelled the contention based on

Section 25 of the Act, which was pressed by the tenant

that the Suit was not maintainable. The argument, which

was advanced by the landlord was, when the matters

relevant to Section 18 were in dispute, bar under

Section 25, would not apply.

36. In this context, it is necessary to notice the reasoning employed in the majority Judgment and also 40 the view taken by the learned Chief Justice, who

authored the dissenting view, in Amar Singh and others

v. Dalip9 (in R.S.A. No. 1821 and 1822 of 1978, decided

on 12.03.1981) which was considered by this Court in

1987 (4) SCC 410 RICHPAL SINGH (supra). We notice the

following statement from the judgment forming the

majority view:

“12. The question which then remains to be decided is as to whether the Revenue Court or Rent Controller has been invested with the jurisdiction under the Punjab Tenancy Act or the East Punjab Urban Rent Restriction Act, as the case may be, to decide the question of relationship of landlord and tenant or they are entitled incidentally to go into this matter for exercising the jurisdiction expressly invested in them under the said Acts. A perusal of section 77 of the Punjab Tenancy Act would show that the Revenue Court has been invested with the jurisdiction to decide certain dispute between the landlord and tenant which necessarily means that the existence of relationship of landlord and tenant between the parties is a condition precedent before any matter specified therein can be taken cognizance of by a Revenue Court. There is no provision in whole of the section which authorises the Revenue Court to pass a decree regarding the relationship of the parties. It is, therefore, obvious that the Revenue Court is only entitled to pronounce on the relationship between the parties for the

9 (1981) ILR 3 P&H 582 41 purposes of deciding disputes within its cognizance enumerated in that section and the Legislature has not conferred any jurisdiction on the Revenue Court to pronounce finally on the jurisdictional facts, i.e., the existence of the relationship of landlord and tenant between the parties. The reason for not doing so is also not far to seek. The determination of the status of the parties or a question of title between them may involve very intricate questions of civil law. For example, the status of the landlord may depend on the proof-

and validity of adoption or a will. Nobody can even suggest that the Revenue Court has jurisdiction to pronounce on the validity of adoption or a will or that such a decision could be final and binding on the parties. If that is so, then it has to be ruled that the Revenue Court has no jurisdiction to pronounce finally on the question of status of the parties or any other question of title because no distinction can be made between a simple question of title and question of title which involve intricate and complicated questions of law so far as the extent of jurisdiction is concerned. Further more, not a single decision has been cited at the bar wherein it may have been ruled that the decision of the Revenue Court under the, Punjab Tenancy Act on the question of title or status of the parties is final, and not open to challenge in a civil suit. On the contrary, as early as the year 1935, a Division Bench of the Lahore High Court in Mt. Harnam Kaur v. Narain Singh and others, MANU/LA/0285/1935: AIR 1935 Lah. 739 while interpreting the scope of the jurisdiction of the Revenue Court took the view that where a revenue suit is instituted for ejecting the tenants and this is the only jurisdiction exclusively vested in the Revenue Courts, that

42 Court cannot determine the question of title in that case and its decision, therefore cannot operate so as to prevent the civil Courts from entertaining the subsequent suit which involves the question of title. This view has held the field for all these years and its correctness has never been doubted in any decision so far. A similar view was taken by a Full Bench of the Madras High Court in Pollapalli Venkatarama Rao and others v.

Masunuru Verkayya and others, MANU/TN/0343/1954 : AIR 1954 Madras 788 while dealing with the question of exclusive jurisdiction of the Revenue Court under the Madras Estates Land Act (1 of 1908), which is evident from the following passage:--

"If a particular matter is one which does not fall within the exclusive jurisdiction of the revenue court, then a decision of a revenue court on so much a matter, which might be incidentally given by the revenue court, cannot be binding on the parties in a civil court. One practical test would be to deter ne if that particular matter would not be matter in respect of which the civil court would have jurisdiction. To give an obvious instance, suppose in a suit under section 55 For the grant of a patta inst toted by a person calming to be the adopted son of the ryot who was a pattedar, the, landlord raises a plea that he is not entitled to the patta because his adoption is not valid. It may be that the revenue court would have to summarily go into the question whether the person suing is or is not the validly adopted son of the previous ryot. Can it possibly be said that the finding of the revenue court on the issue of adoption is binding on the

43 parties in a subsequent suit in a civil court in which the validity of the adoption might fall to be decided? There can be no doubt about the answer.

That is because the dispute as to the validity of the adoption is not a dispute in respect of which a revenue court has exclusive jurisdiction. Such a dispute is a matter well within the jurisdiction of a civil court. Therefore, it cannot be within the exclusive jurisdiction of the Revenue Court, and the decision of such a dispute by a revenue court cannot be binding in a civil court."

37. In the dissenting opinion, the learned Chief Justice, on the other hand, formulated four questions,

out of which, the second question, was as follows -

“II. If so, whether such a Revenue Court has the

jurisdiction to decide the issue of relationship of

landlord and tenant, if disputed before it?” In

answering this question, we notice that the court

followed the Judgment of this Court under the Delhi

Rent Control Act in Om Prakash Gupta v. Dr. Ratan Singh

and another10 and it was held as follows:

“38. Coming now to question No. (ii) aforesaid it appears to be now so well- settled by a precedent of the final Court

10 (1964) 1 SCR 259 44 and a string of Division Bench judgments of this Court that it would be wasteful to examine the issue on principle. In Om Parkash Gupta v. Dr. Rattan Singh and an others, 1963 P.L.R. 543. an identical question arose under the rent jurisdiction.

It was contended before their Lordships that in a Tribunal of limited jurisdiction, like the Rent Controller, if the relationship of the landlord and tenant is denied then it has no jurisdiction to adjudicate thereon and must stay its hands forthwith.

Categorically repelling the same it was observed as follows:--

"............If a person moves a Controller for eviction of a person on the ground that he is a tenant who had, by his acts, or omissions, made himself liable to be evicted on any one of the grounds for eviction, and if the tenant denies that the plaintiff is the landlord, the Controller has to decide the question whether there was a relationship of landlord and tenant. If the Controller decides that there is no such relationship the proceeding has to be terminated, without deciding the main question in controversy namely, the question of eviction. If on the other hand, the Controller comes to the opposite conclusion and holds that the person seeking eviction was the landlord and the person in possession was the tenant the proceedings have to go on. Under section 15(4) of the Act the Controller is authorised to decide the question whether the claimant was entitled to an order for payment of rent, and if there is a dispute as to the person or persons to whom the rent is payable, he may direct the tenant to deposit with him the amount payable

45 until the decision of the question as to who is entitled to that payment."

and again

"............The Act proceeds on the assumption that there is such a relationship. If the relationship is denied, the authorities under the Act have to determine that question also because a simple denial of the relationship cannot oust the jurisdiction of the tribunals under the Act. True, they are tribunals of limited jurisdiction the scope of their power and authority being limited by the provisions of the Statute. But a simple denial of the relationship either by the alleged landlord or by the alleged tenant would not have the effect of oust-ting the jurisdiction of the authorities under the Act, because the simplest thing in the world would for the party interested to block the proceedings under the Act to deny the relationship of landlord and tenant. The tribunals under the Act being creatures of the Statute have limited jurisdiction and have to function within the four corners of the Statute creating them. But within the provisions of the Act, they are tribunals of exclusive jurisdiction and their orders are final and not liable to be questioned in collateral proceedings, like a separate suit or application in execution proceedings."

The enunciation of the law aforesaid appears to me as categoric in laying down that even a persona designate, like the Rent Controller (see Messrs Pitmans's Shorthand Accadamy v. M/s. B. Lila Ram and sons) has the fullest jurisdiction to decide the 46 question of the relationship of landlord and tenant when it is raised before it. That view has been unreservedly followed in this Court in a series of Division Bench decisions which at this stage may only be noticed chronologically, that it, Muni Lal v. Chandu Lal, 1968 PLR 473; Ambala Bus Syndicate (P) Ltd. v. M/s. Indra Motors Kurali, 1968 PLR 650 and J.G. Kohli v.

Financial Commissioner Haryana and another, 1975 Rent Control Journal 689. In passing it may be noticed that some doubts about the correctness of the view in the aforesaid judgments was raised by a learned Single Judge which was considered in depth and the earlier view was reaffirmed afresh in the recent Division Bench judgment in Balbahadar and others v. Hindi Sahitya Sadhna, 1980 (1) Rent Control Journal 376, to which I was a party.”

38. We must notice that the learned Chief Justice,

in the dissenting opinion, was of the view that even

the dispute relating to existence of the landlord-

tenant relationship could be decided by a Revenue

Court. In fact, this Court, in Om Prakash (supra),

deals with a situation, where by a simple denial of the

landlord-tenant relationship, the proceedings under

the Rent Act would be blocked.

39. However, as already noticed, this Court, in the decision reported in Richpal Singh and others (supra),

upheld the view of the majority. The dissenting view,

47 which was essentially premised on Om Prakash (supra),

was not approved.

40. Though, the question arose in the context of the contention as to whether the matter was res judicata,

this Court went on to hold, in paragraph 14, which we

have already adverted to, that when the nature of

relationship between landlord and tenant was in

dispute, the Revenue Court, under the Tenancy Act, has

no jurisdiction.

41. In paragraph-15, the Court proceeded to reject the contention of the finding being res judicata. The

question was whether the Revenue Court could go into

the question, whether the respondent therein was a

tenant or mortgagee. It was found that the Revenue

Court could not do so. The Judgment in Richpal Singh

(supra) was decided after considering the Judgment in

Om Prakash (supra), which took the view that the Rent

Control Court’s power could not be frustrated by mere

taking of the plea disputing the landlord-tenant

relationship.

48

42. In this regard, we have noticed, the view of the Judges in the Majority Judgment. The Majority Judgment

proceeded on the basis that there was no provision in

Section 77 of the Tenancy Act, which authorised the

Revenue Court to pass a Decree regarding the

relationship of the party. However, it has also

pronounced that the Revenue Court was entitled to

pronounce on the relationship for the purpose of

deciding the dispute within its jurisdiction. But it

was not conferred with power to finally decide on the

same. The dispute relating to landlord-tenant

relationship can arise in various circumstances, as

noticed in the Majority Judgment.

43. Therefore, it is not, as if, if there is

indisputable material or binding admission and, which,

without raising any debatable dispute at all,

established the landlord-tenant relationship, the

Revenue Court cannot decide the matter, which it is

ordained to decide as part of its duty to decide the

case for eviction, inter alia. However, what has been

laid down is that, the Civil Court would continue to

have jurisdiction to finally pronounce on a question 49 of landlord-tenant relationship despite the bar under

Section 77(3) of the Tenancy Act.

44. It is, at this juncture, relevant to notice Section 77(3) of the Tenancy Act:

“77(3) The following suits shall be instituted in, and heard and determined by Revenue Courts and not other Court shall take cognizance of any dispute or matter with respect to which any such suit might be instituted:”

Procedure where revenue matter is raised in a Civil Court.

Provided that-

(1) where in a suit cognizable by and instituted in a Civil Court it becomes necessary to decide any matter which can under this sub-section be heard and determined only by a Revenue Court, the Civil Court shall endorse upon the plaint the nature of the matter for decision and the particulars required by Order VII, rule 10, Civil Procedure Code and return the plain for presentation to the Collector;

(2) on the plaint being presented to the Collector, the Collector shall proceed to hear and determine the suit where the value thereof exceeds Rs. 1,000 or the matter involved is of the nature mentioned in section 77 (3). First Group of the Punjab Tenancy Act, 1887, and in other cases may send the suit to an Assistant Collector of the first grade for decision.

50 45. We are called upon to decide on the ambit of the bar under Section 25 of the Act of 1953. Can it be

argued that the bar under Section 25 is far more

rigorous and exhaustive? Would it be said that the bar

will operate, even in a situation, where the landlord-

tenant relationship is disputed in a proceeding under

Section 14A of the Act?

46. In this regard Section 14A of the Act provides that the Assistant Collector is to proceed as provided for

in sub section 2 of Section 10 of the Act and the

provisions of sub section 3 of Section 10 was to apply

in relation to such application. There is a proviso

with which we are not concerned. Section 10 must

therefore be scanned. Section 10 (2) and 10 (3) reads

as follows: -

“Section 10. Restoration of tenant ejected after the 15th of August, 1947 -

(2) On receipt of an application the Assistant Collector shall, after giving to the parties notice in writing and a reasonable opportunity to be heard, determine the dispute summarily, and shall keep a memorandum of evidence and a gist of his final order with brief reasons therefor.

51 (3) When an application has been made, any proceedings in relation to the same matter pending in any other court or before any other authority shall be stayed on receipt of information by that court or authority from such Assistant Collector of the fact of having received the application and all such proceedings in a court or before any authority shall lapse when the dispute has been determined by the Assistant Collector acting under this Act.

47. Section 10 (2) declares that on the receipt of an application the Assistant Collector after giving to the

parties notice in writing and the reasonable

opportunity to be heard determine the dispute summarily

and shall keep a memorandum of evidence and a gist of

his final order with brief reasons therefor. Section

10 (3) on the other hand provides that when an

application has been made which in the context of

Section 14A must be read as an application under

Section 14A, any proceeding in relation to the same

matter pending in any other court or before any other

authority shall be stayed on receipt of information by

that court or authority from the Assistant Collector

that he has received an application under Section 14A.

The effect of Section 10 (3) further would be that all

52 proceedings in a court or before any authority shall

lapse when the dispute has been determined by the

Assistant Collector acting under the Act.

48. There are two aspects which emerge. The first

aspect is that the Assistant Collector acting under

Section 14A read with Section 10 (2) must given a

reasonable opportunity to the tenant and determine the

dispute summarily. This is an important pointer to the

nature of the power which is exercised by the Assistant

Collector. We must bear in mind the principle which has

been noticed by this court in MAGITI SASAMAL (supra).

In a case of a dispute raised by the tenant about the

very existence of the landlord-tenant relationship, in

a provision which contemplates evicting a person who

is the tenant, the duty to render a summary decision

appears incongruous with the imperative need for the

authority to the able to unravel the many dimensions

of a dispute which is genuinely raised by the tenant

about there being a landlord-tenant relationship. In

other words what is to be rendered is a summary decision

and we would neither be doing justice to the nature of

the power enjoyed by the Assistant Collector as also

53 the right of a party to seek redress in a Civil Court

otherwise, unless the power of the Civil Court is

preserved.

49. The other aspect no doubt which emerges is Section 10 (3) which contemplates proceedings in relation to

the same matter in any other court or authority being

stayed, when such court or authority is informed by the

Assistant Collector of having received an application

under Section 14A read with Section 10. The law giver

has however provided that the Assistant Collector must

proceed with the application but determine the dispute

summarily. Upon the dispute being determined by the

Assistant Collector the proceedings which were stayed

by the court or any other authority would lapse. This

sub section gives the impression that the powers of the

Assistant Collector are meant to be exhaustive.

50. We would hold the true effect of Section 10 (2)

and (3) read with Section 14A is as follows. An

application for ejectment of a tenant is to be made

before the Assistant Collector under Section 14A. Such

an application is to be decided after giving notice and

it is to be decided summarily. Since the exclusive 54 power to decide the application to evict the tenant has

been conferred on the Assistant Collector, the law

giver has further contemplated that after receipt of

such an application by the Assistant Collector no other

court or authority is to proceed with ‘any case

relating to the same matter’ upon being informed by the

Assistant Collector of the receipt of the application

under Section 14A. What is more such proceeding is to

be lapse after the determination of the dispute by the

Assistant Collector. The law giver no doubt does

contemplate an exclusive and expeditious remedy for the

landlord to seek eviction brooking no over lapping of

jurisdiction by exercise of power by any other court

or authority on a parallel basis. However, this

provision cannot mean that when the very existence

landlord-tenant relationship is brought under a cloud

by the tenant raising a dispute then the very premise

on which the exclusive jurisdiction conferred on the

Assistant Collector is not overturned. In other words,

the law giver has proceeded on the basis that the

Assistant Collector is clothed with the power to decide

a matter relating to eviction in a summary fashion.

55 This would be inconsistent with scenario where the very

existence of the landlord-tenant relationship is

disputed. The law giver in other words proceeds on an

assumption that the application made by the landlord

is against a person who is indeed the tenant.

51. We will however proceed on the basis that what is contemplated is that during the pendency of the

proceeding before the Assistant Collector even a suit

in a civil court where the title of the landlord is

questioned or in other words there is a challenge

thrown to the very existence of the landlord-tenant

relationship is not permitted. Even in such a scenario

after the conclusion of the proceeding, in the light

of the decisions of this court starting with MAGITI

SASAMAL (supra) RAJA DURGA SINGH (supra) AND RICHPAL

SINGH (supra), would apply and the bar under Section

25 would not available. The Civil Court would have the

power in a case where without it being a frivolous

challenge to the landlord tenant-relationship, in a

genuine dispute relating to landlord-tenant

relationship, the orders passed by the authorities

56 under the Act can be found to be null and void for the

reason that transgressing the power conferred, the

authorities proceed to decide the matter, (which again

it must be remembered under Section 10 (2) is to be a

summary decision) which is the vexed issue relating to

the very existence of the landlord-tenant relationship.

52. The words used in Section 25 of the Act, as already noticed, is that except in accordance with the

provisions of the Act, the validity of any proceeding

or Order, taken or made under the Act, cannot be

questioned in any Court or before any other Authority.

In the dissenting opinion, Justice R.S. Sarkaria, in

Amar Singh and another (supra), has explained the scope

of the expression “except in accordance with the

provisions of the Act”, with reference to Section 24

of the Act. In other words, an Order passed under

Section 14A, could be challenged by way of an Appeal,

Review and Revision, as provided in the Tenancy Act,

adverted to in Section 24 of the Act. This explained,

the question perseveres, however, as to whether the

validity of proceeding or Order passed, is beyond

challenge in a Civil Court, under circumstances

57 analogous to that obtaining, with reference to a

proceeding under Section 77 of the Tenancy Act. In

other words, Section 77 of the Tenancy Act, inter alia,

provided for seeking eviction of a tenant before the

Revenue Officer. Section 14A of the Act, similarly,

confers powers upon the Revenue Officer, to entertain

an application for evicting a tenant.

53. The principles relating to exclusion of Civil Court’s jurisdiction are well-settled. Ouster of the

jurisdiction of the Civil Court is not readily

inferred. In the scheme of the Tenancy Act also, an

Order under Section 77 could be subjected to Appeal,

Review and Revision, as provided in the Act. Section

77(3) of the Tenancy Act, purported to confer exclusive

power on the Revenue Court to decide certain disputes

and ousted jurisdiction of courts. This included the

proceeding to evict the tenant. In other words, Civil

Court could not entertain the application to evict a

tenant. It is in this statutory framework that this

Court has stated the view that if a landlord-tenant

relationship is disputed, despite the exclusive

jurisdiction conferred on the Revenue Court, to even

58 Order eviction of a tenant, the Civil Court would still

retain jurisdiction in a case where there is a dispute

relating to landlord-tenant relationship. The Act was

enacted in 1953. As noticed by us, Section 14A of the

Act, provided for the eviction of a tenant

notwithstanding anything contained in any other law.

Therefore, apart from the fact that it became an

exhaustive catalogue of circumstances, entitling the

landlord to launch proceedings for eviction and also

further designating the Statutory Authority, before

which, it could be filed, it provided for a bar to

challenge the validity of the orders passed, except by

way of the remedies provided under the Tenancy Act.

There would not be any justification for revisiting the

principle laid down that when the relationship between

landlord and tenant is contested, the Civil Court

continue to have the jurisdiction despite the bar under

Section 25 of the Act. We see no reason to hold that

the validity of the Order passed by the Assistant

Collector, as may be affirmed in Appeal, Review or

Revision, cannot be questioned in a Civil Court, if the

expression “validity” is conflated with legality. In

59 other words, if an Order is illegal, it would be

invalid. The illegality of an Order can arise out of

various causes. An Order may be illegal, and therefore,

invalid, on the ground that the Author of the Order,

in this case, the Authorities designated under Section

14A, did not have the power to decide the issue. We are

in this case concerned with illegality due to absence

of power. We are not called upon to decide the position,

where the Authority, under the Act, violates the

fundamental procedure relating to natural justice and

the Civil Court is invited to sit in Judgment over the

same. What we find, is that, the expression “validity

of the decision or the Order” in Section 25 of the Act,

would not include a case where, despite a dispute

projected, that there was no landlord-tenant

relationship, the Authority decides the said issue in

the course of the Order of Eviction, under Section 14A,

after brushing aside the tenant’s objection relating

to his position, viz., that he is not a tenant. In such

a situation, the validity is tied-up with the

fundamental aspect of absence of power of the Authority

to decide on the question of landlord-tenant

60 relationship. We must clarify, therefore, that the

validity of the orders under Section 14A is open to

scrutiny in a Civil Court, in a situation, when the

tenant denies and disputes the case of the landlord

that there is a landlord-tenant relationship. We must,

however, further hold that a mere plea by the tenant,

should not lead, without anything more, to render the

Authorities helpless and bereft of power to order

eviction. In a situation, where, the Authority finds

the plea of the tenant to be completely frivolous and

mere attempt at blocking the proceedings, the validity

enacted under Section 25, cannot be diluted. The

position must be understood as that the power to

decide, cannot be assigned to the Authorities under the

Act, of the existence of the landlord-tenant

relationship, as noted hereinbefore.

54. In the facts of this case, we have noticed the nature of the contention. Even the case of the

appellants is that of failure to pay rent by the

respondent-tenant. The tenant claims to be a tenant

under the Mandir, which has been found to be the owner

of the property. Appellants claim under an assignment

61 made by the Mahant, who has been found to be without

Authority to convey any right to the appellants.

55. In such circumstances, we would find that the contention raised by the appellants is meritless and

the Appeal will stand dismissed. We, however, direct

the parties to bear their own costs.

…………………………………………J. (K.M JOSEPH)

…………………………………………J. (S. RAVINDRA BHAT)

NEW DELHI;

NOVEMBER 17, 2021.

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