H.R. Sodhi, J. - (1.) THIS judgment will dispose of a bunch of five connected writ petitions Nos. 670 to 674 of 1971, which raise common questions of law and are directed against the order dated 18th January, 1971, of the Financial Commissioner (Revenue), Haryana, who accepting the revision petitions of the Respondents claiming to be occupancy tenants under the Petitioner remanded the case to the Assistant Collector to decide their status as such tenants. To appreciate the controversy between the parties, it is necessary to state a few facts.
(2.) AMIN Lal, writ Petitioner, in all the five writ petitions claims to be the purchaser by registered deeds said to have been executed in his favour in the year 1965 by the owners of different parcels of land on which private Respondents in these writ petitions claim to be occupancy tenants. The land is situate in village Mubarakpur, tahsil Jhajjar, district Rohtak. Occupancy rights in regard to agricultural land arise on the fulfilment of conditions stated in the relevant provisions of the Punjab Tenancy Act (XVI of 1887), as applicable to the State of Haryana and referred to hereinafter as the Tenancy Act. A tenant has a right of occupancy under Section 5 of the said Act in respect of the land occupied by him if he, (a) at the commencement of this Act has for more than two generations in the male line of descent through a grandfather or granduncle and for a period of not less than twenty years been occupying land paying no rent there for beyond the amount of the land revenue thereof and the rates and cesses for the time being chargeable thereon, or (b) having owned land, and having ceased to be land -owner thereof otherwise than by forfeiture to the Government or than by any voluntary act, has, since he ceased to be land -owner, continuously occupied the land, or (c) in a village or estate in which he settled along with or was settled by, the founder thereof as a cultivator therein, occupied land on the twenty -first day of October, 1868, and has continuously occupied the land since that date, or (d) being jagirdar of the estate or any part of the estate in which the land occupied by him is situate, has continuously occupied the land for not less than twenty years, or having been such jagirdar, occupied the land while he was jagirdar and has continuously occupied it for not less than twenty years has a right of occupancy in the land so occupied, unless, in the case of a tenant belonging to the class specified in Clause (c), the landlord proves that the tenant was settled on land previously cleared and brought under cultivation by, or at the expense of, the founder. (2) If a tenant proves that he has continuously occupied land for thirty years and paid no rent therefor beyond the amount of the land revenue thereof and the rates and cesses for the time being chargeable thereon, it may be presumed that he has fulfilled the conditions of Clause (a) of Sub -section (1) (3) The words in that clause denoting natural relationship denote also relationship by adoption, including therein the customary appointment of an heir, and relationship by the usage of a religious community. Ram Singh and others Respondents instituted suits somewhere in the year 1960/1961 in the Civil Court at Jhajjar wherein a declaration was sought that they were the owners of the land occupied by them as they had acquired occupancy rights under Section 5 of the Tenancy Act and those rights, on the coming into force of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952, hereinafter described as the Vesting of Proprietary Rights Act, ripened into statutory ownership. The Defendants -landlords in those suits contested the claim of the Plaintiffs about the fact of the latter having acquired occupancy rights as alleged by them. One of the issue framed in the suit was "whether the Plaintiffs have acquired occupancy tenants rights in the suit land". The whole claim of the Plaintiffs was based on the existence of occupancy rights under Section 5 of the Tenancy Act as it was pleaded that they being the occupancy tenants automatically became the owners by virtue of the Vesting of Proprietary Rights Act. This Act came into force on 15th June, 1952, and Section 3 thereof provided for that vesting of proprietary rights in occupancy tenants and extinguishment of the corresponding rights of the landlords. An extract from Section 3 so far as it is relevant in this case may, with advantage, be quoted hereunder: Notwithstanding anything to the contrary contained in any law, custom or usage for time being in force on and from the appointed day (a) all rights, title and interest (including the contingent interest, if any, recognized by any law, custom or usage for the time being in force and including the share in the Shamilat with respect to the land concerned) of the landlord in the land held under him by an occupancy tenant, shall be extinguished, and such rights, title and interest shall be deemed to vest in the occupancy tenant free from all encumbrances, if any, created by the landlord. Provided that the occupancy tenant shall have the option not to acquire the share in the Shamilat by giving a notice in writing to the Collector within six months of the publication of this Act or from the date of his obtaining occupancy rights whichever is later; (b) the landlord shall cease to have any right to collect Directive any rent or any share of the land revenue in respect of such land and his liability to pay land revenue in respect of the land shall also cease; (c) * * * * * (d) * * * * * Evidence was led by both the parties without any objection having been taken as to the jurisdiction of the Civil Court and the suits of the Plaintiffs were decreed. 3. Defendant -landlords took an appeal to the District Judge who allowed the appeal on 18th May, 1962, reversed the findings of the trial Court on a consideration of the oral and documentary evidence including revenue records and came to the conclusion that it had not been established that tenancy was ever created by the landlords in favour of the Plaintiffs. In other words, the Plaintiffs were held not to have held the land as occupancy tenants and they were, therefore, refused the declaration asked for. A copy of the judgment of the District Judge has been filed with the writ, petition as Annexure 'X'.
(3.) HAVING failed in the Civil Court to get a declaration of ownership, the Plaintiffs instituted suits in Revenue Courts for a declaration that they were the occupancy tenants of the land in dispute it being again pleaded by them that they were cultivating the land under the Defendant -landlords for over a hundred years without payment of any rent except the amount of land revenue, rates and cesses chargeable thereon. Further averments were that they had acquired occupancy rights under Section 5 of the Tenancy Act and if in any event that was held not to have been proved, they were tenants under Section 8 of the same Act. The plea of rights of occupancy under Section 8 was for the first time introduced in the Revenue Court. Section 8 is of a residuary nature and permits a person to establish a right of occupancy on any ground other than those specified in the preceding sections which specifically deal with the circumstances under which an occupancy right could be created. The landlord Amin Lal, writ -Petitioner, had by then come in the picture as purchaser of the land from the landowners and he resisted the suits. Amongst several other pleas, one of the objections taken was that suits in the Revenue Court were barred by the principles of res judicata because the Civil Court had already given the finding that the Plaintiffs had not acquired occupancy rights in the suit land. The Assistant Collector 1st Grade, Jhajjar, dismissed the suits. It was held by him that the Civil Court was competent to decide the matter now raised before him and that in view of the decision of that Court, the present suits stood barred by the rule of res judicata. Appeals by the Plaintiffs to the Collector failed and they took the matter to the Financial Commissioner (Revenue) on the revisional side. The learned Financial Commissioner by a consolidated order, dated 18th January, 1971, allowed the five revision petitions filed by the Plaintiffs and remanded the case to the Assistant Collector directing him to proceed with the suits and decide the same in accordance with law. The view taken by him was that the matter of granting a declaration as to whether a person held occupancy rights or not fell within the exclusive jurisdiction of a Revenue Court and that the jurisdiction of a Civil Court was barred under Section 77(3)(d) of the Tenancy Act. The decision of the Civil Court was, therefore, in the opinion of the Financial Commissioner, of no avail and the Revenue Court could decide this question afresh. It is in these circumstances that the present five writ petitions have been preferred by Amin Lal, landlord, who is successor -in -interest of the previous land -owners.;