KISHAN LAL (DIED) AND OTHERS Vs. KURDA

JUDGEMENT

(1.) This is defendants' second appeal against whom decree for declaration and possession has been passed by both the Courts below.

(2.) Agricultural land measuring 78 Bighas l biswa was under the tenancy of the plaintiff Kurda along with Pat Ram since long. The said land was owned by the Rajputs. Prior to the plaintiff his forefathers were coming in possession as tenants for the last about 100 years. Later on in the year 1956 the defendants purchased the land from the said Rajputs. It was further alleged that the defendants in collusion with the Revenue Patwari got the entries in the revenue records changed in their names with effect from Kharif 1966 to Rabi 1975. According to the plaintiff, he was in actual physical possession of the suit land uptill the crop of Rabi 1975, when he was forcibly dispossessed by the defendant. The present suit was filed on 21st July, 1975. Originally the suit was filed by Kurda and one Smt. Bodbi daughter of Pat Ram but during the pendency of the suit the name of Bodbi was dropped from the array of the plaintiffs by amendment in the plaint. The suit was contested by the defendants. They denied their having forcibly dispossessed the plaintiff. On the other hand, their case is that the plaintiff had surrendered his tenancy rights in lieu of money and had ceased to be the tenant over the land in dispute with effect from Kharif 1967. Several objections with regard to the maintainability of the suit, limitation, locus standi and the suit being bad on account of mis-joinder of necessary parties and cause of action were taken. The trial Court found that Kurda plaintiff and his predecessors-in-interest continued to be in possession of the suit land till Rabi 1975 and the entries in the Khasra Girdawaris and the Jamabandis from Kharif 1966 to Rabi 1976 were against the facts and wrong as alleged. It was further found that the plaintiff was forcibly dispossessed sometime in the first half of the year 1975. The entries in the revenue records which are in favour of the defendants were found to be fake and manipulated by the defendants in the collusion with the revenue employees. Under issue No. 5, which has been mainly contested in the present petition, the trial Court held that the defendants are estopped from raising objection as to the jurisdiction of the Civil Court and they cannot be allowed to take inconsistent pleas in different Courts. The principle of reprobate and approbate is squarely attracted. The plaintiff's suit was found to be within limitation. With these findings the plaintiff's suit was decreed for possession and it was declared that the entries in the revenue record from Kharif 1966 to Rabi 1975 were wrong and against facts. Consequently, decree for possession was also passed. In appeal the learned District Judge, Bhiwani, affirmed the said findings of the trial Court and thus maintained the decree passed in favour of the plaintiff. Dissatisfied with the same, the defendants have filed the second appeal in this Court.

(3.) The learned counsel for the appellants contended that the present suit was not competent in the Civil Court as it was the exclusive jurisdiction of the Revenue Court in view of the provisions of section 50 read with section 73 (3)(g) of the Punjab Tenancy Act (hereinafter referred to as 'the Act'). It was also contended that the plaintiff was dispossessed in 1973 and not 1975 as found by the Courts below. Argument was also raised that Kurda plaintiff alone was not entitled to the whole land because Pat Ram, the other tenant, had died before the present suit was filed.. Thus, according to the learned counsel, Kurda was entitled to the whole land because Pat Ram, the other tenant, had died before the present suit was filed. Thus, according to the learned counsel, Kurda was entitled only to his share, if any, and not to the whole of the land. In support of his first contention that it was the exclusive jurisdiction of the Revenue Court to entertain such a suit, which is filed on behalf of the tenant, who alleges to have been illegally dispossessed, he referred to Bhag Singh and others v. Jawahar Singh and others, 1965 AIR(P&H) 321; Shankar and others v. Ram Saran and others,1970 PunLJ 448; Jai Narain v. Sarup Singh and others, 1974 PunLJ 205. Reference was also made to Mt. Batul Begam v. B. Hem Chander Mukherji, 1960 AIR(All) 519; and The Premier Automobiles Ltd. v. Kamlakar Shantaran Wadke of Bombay and others, 1976 1 SCC 496. On the other hand, the learned counsel for the plaintiff-respondents submitted that no such objection was taken in the written statement, nor there was any issue to that effect. Moreover, the present is a composite suit for correction of the revenue record and for recovery of possession and, therefore, under these circumstances, the suit was maintainable in the Civil Court, as was held in Mewa and others v. Baldeo, 1967 AIR(All) 358. In any case, argued the learned counsel, that invoking the provisions of section 100(3) of the Act, the High Court may order that the decree be registered in a Court, which has jurisdiction. In support of the last contention, reference was made to Amin Lal v. Financial Commissioner (Revenue) Haryana, Chandigarh and others,1972 PunLR 96.