J.V. Gupta, J. - (1.) The Plaintiff Appellants have filed this appeal against the judgment and decree of the Additional District Judge, Patiala, dated 1st March, 1973, whereby the appeal has been accepted and the decree of trial Court decreeing the Plaintiff's suit has been set aside.
(2.) Kesar Dass and Jagat Ram, Plaintiff Appellants, filed the present suit against Bachittar Singh, Pal Singh, Bant Singh and Sardara Singh, for possession of land measuring 76 Bighas and 2 Biswas, situated in village Khalaspur, on the allegations that they were the owners and Mohtamims of the land and the land in dispute was given on Chokota to Bant Singh and Sardara Singh Defendants for the year 1968 -69 and a Chakotanama to that effect was also executed. It was agreed that these Defendants will deliver the possession of the land on 1st June, 1979; that the Plaintiffs filed a suit against Bachittar Singh and Pal Singh for possession of the land but a compromise was effected on 7th October, 1969 and that it was agreed that the aforesaid Defendants would leave the possession on 15th June, 1970, but in spite of this, the Defendants remained in possession of the aforesaid land and they did not deliver the possession after the period of termination of tenancy and that after the termination of the tenancy, the tenants are in forcible possession of the suit land and they have no right to retain the same as the Plaintiffs did not wish to continue the tenancy of the tenants. The Defendants in their separate written statements, denied that the Plaintiffs are the owners of the suit land. The right of the Plaintiffs to file the suit was also denied. They alleged that there is relationship of landlords and tenants between the parties and therefore, the Civil Court has no jurisdiction to hear this suit. On the pleadings of the parties, the trial Court framed the following issues: (1) Whether the Plaintiffs are owners of suit land as Mohtamims? (2) Whether Defendants 1 and 2 had delivered the possession to Plaintiffs and Defendants have re -occupied the same without any right? (3) Whether the suit is bad for mis -joinder of causes of action? It was held by the trial Court that the Plaintiffs are the owners of the suit land as Mohtamims. On issue No. 2, it was held that Defendants Bachittar Singh and Pal Singh had delivered the possession to the Plaintiffs, and therefore, all the Defendants had reoccupied the land without any right and thus the Defendants were held 10 be trespassers on the suit land. Consequently, the suit for possession was decreed against the Defendants. Against this decree of the trial Court, no appeal was filed by Defendants Bant Singh and Sardara Singh. Bachittar Singh and Pal Singh Defendants only filed the appeal. The findings of the trial Court on issue No. 1 has been maintained by the lower appellate Court, but on issue No. 2 it has been held, "In view of my discussion above, I hold issue No. 2 against the Plaintiffs and set aside the finding of the trial Court on this issue. I hold the Plaintiffs have failed to prove that Defendants I and 2 had delivered the possession to the Plaintiffs and thereafter the Defendants have reoccupied the land in dispute. In my view the relationship of landlord and tenant continues to exist between the parties. The Plaintiffs cannot dispossess the Appellants in the present suit". Consequently the appeal was allowed and the decree of the trial Court was set aside qua the two Defendants only. Now the Plaintiffs have come up in appeal to this Court against the said judgment and decree of the lower appellate Court.
(3.) The only contention raised on behalf of the Plaintiff/Appellants is that the learned Additional District Judge should have made an endorsement upon the plaint and returned the same for presentation to the Collector concerned keeping in view the provisions of Sec. 77(3)(1) of the Punjab Tenancy Act, 1887, which reads thus: 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 Code of Civil Procedure and return the plaint for presentation to the Collector. In support of his contention, he has cited Murid Hussain and Ors. v/s. Fasal Illahi and Ors., A.I.R. 1922 Lah 173, in which it has been held that when after having entertained the suit the Court reaches a point in the trial at which it holds that the Plaintiff is a tenant and is suing as such the proviso takes effect and makes it incumbent on the Court to return the plaint for presentation to the Collector. Reference was also made to Mohammad v/s. Allah Ditta : A.I.R. 1934 Lah 353. In that case, it has been held that "although the Defendants are described as trespassers in the plaint, as soon as the Court comes to the conclusion that the Defendants are holding the land as tenants -at will, the suit becomes one in which it is necessary to decide a matter which under Sec. 77 can only be heard and decided by a Revenue Court. The Civil Court then ought to return the plaint for presentation to the Collector." After hearing the learned Counsel for the Appellants, I find force in his contentions. Keeping in view the provisions of Sec. 77, the lower appellate Court should have returned the plaint for presentation to the Collector concerned. Consequents, this appeal succeeds, the judgment and decree of the lower appellate Court are set aside and it is directed that the plaint be returned to the Plaintiffs with the requisite endorsement. There will be no order as to costs.;