R.S. Narula, C.J. - (1.) THE sole question that has to be answered in this petition for revision of the order of the Court of Shri Shiv Charan Dass Tyagi. Additional District Judge, Narnaul, dated May 25r 1973, is whether the jurisdiction of the civil Court is barred to try and, decide the suit for a declaration and permanent injunction filed by the Plaintiff -Respondents. This question, which forms the subject matter of issue No. 4 out of 'the issues framed by the trial Court, which issue was tried as preliminary one, has arisen in the following circumstances:
(2.) KALIA and Goria. sons of Ram Dhan, Plaintiffs -Respondents, were admittedly tenants of Chandu Lal, Defendant -Petitioner. They used to cultivate the Defendant's land on payment of produce rent. It is also the common case of both sides that after the passing of the order of ejectment, they had never been dispossessed of the tenancy holding. On November 12, 1968, the Defendant -Petitioner made an application under Section 43 of the Punjab Tenancy Act, 1887 (herein after referred to as the Tenancy Act), to the Assistant Collector (the Revenue Officer) for service on the Plaintiff -Respondents of a notice of ejectment envisaged in Clause (b) of Section 42 of that Act. Section 42 provides that no tenant is to be ejected otherwise than in execution of decree for ejectment except in the two cases specified in Clauses (a) and (b) thereof. Clause (b) reads: (b) When the tenant has not a right of occupancy and does not hold for a fixed term under a contract or a decree or order of competent authority. The Plaintiff -Respondents did not claim in the plaint any right of occupancy. Nor was theirs a tenancy for a fixed term under a con tract or decree or order of any competent authority. Section 43 of the Tenancy Act provides as below: - - In any such case as is mentioned in Clause (a) or Clause (b) of the last foregoing section the landlord may apply to a Revenue -officer for the ejectment of the tenant in the case mentioned in the former clause or for the service on the tenant of a notice of ejectment in the case mentioned in the latter clause. On receipt of the application of the Defendant -Petitioner, the Revenue Officer caused the notice of ejectment to be served on the tenants under Sub -section (1) of Section 45 of the Tenancy Act which is in the following terms: On receiving the application of the landlord in any such case as is mentioned in Clause (b) of Section 42, the Revenue -officer shall, if the application is in order and not open to objection on the face of it, cause a notice of ejectment to be served on the tenant. The issue and service of the notice under Section 15 (1) of the Tenancy Act has not been denied by the Plaintiff -Respondents. Their case as made out in para 3 of the plaint was that the said notice did not bear the signatures and seal of the Court of the Revenue Officer and the said notice was neither legal nor with authority. The Plaintiff -Respondents did, however, put in appearance before the Revenue Officer in response to the said notice (Exhibit P/10). The order of the revenue Court dated November 21, 1968 (Exhibit P/9) establishes this fact. Sub -section (3) of Section 45 of the Tenancy Act provides inter alia that on the service of a notice under Sub -section (1) if the tenant intends to contest his liability to ejectment , he must institute a suit for that purpose in a revenue Court within two months from the date of service of the notice. Admittedly, no such suit was filed by the Plaintiff -Respondents despite service of the above -mentioned notice on them. No such suit having been filed, the Defendant -Petitioner made an application to the Revenue Officer on March 20, 1969. under Sub -section (5) of Section 45 of the Tenancy Act for passing an order of ejectment against the Plaintiff -Respondents. Notice of that application is claimed by the Defendant -Petitioner to have been duly served on the Plaintiff -Respondents. The case of the Plaintiff -Respondents is that a false report of service of that notice was secured by the Defendant -Petitioner and in fact no such notice was served on them. On the basis of the report of service of that notice, an ex parte order of ejectment was passed against the Plaintiff -Respondents on June 13, 1969. Order for dispossession of the Plaintiff -Respondents in execution of the above mentioned ex parte order for ejectment was issued on June 14, 1969. In execution of that order the Plaintiff -Respondents are shown, according to the report on the warrant of possession, to have been dispossessed from the land in dispute on June 15, 19691 The claim of the Plaintiff -Respondents, however, is that the report is fictitious and in fact the Plaintiffs were never dispossessed and are still continuing in cultivating possession of the land in question as tenants of the Defendant -Petitioner. To complete the history of the litigation, it may further be noticed that the appeal preferred by the Plaintiff -Respondents against the order of ejectment passed by the Assistant Collector was dismissed by the Collector on March 29, 1959. The learned Counsel for the Plaintiff -Respondents states that the said appeal was dismissed as barred by time.
(3.) IT was in the above -mentioned circumstances that on April 26, 1972, the Plaintiff -Respondents filed a suit: (1) For a declaration to the effect that they have been in cultivating possession of the land in question continuously for the previous 50 years as tenants -at -will on payment of certain annual produce rent: (ii) For a declaration that proprietary rights have accrued to them ; (iii) For a declaration that they were never ejected or dispossessed in pursuance of the illegal order dated June 13. 1969, passed by the Assistant Collector First Grade, Narnaul. Nor could they be ejected by that order of the Assistant Collector First Grade, Narnaul, and they are not liable to be ejected; and (iv) For a permanent injunction restraining the Defendant -Petitioner from ejecting them in pursuance of that order or in any other manner except in due course of law, The suit was contested by the Defendant. In para 10 of his written statement, the Defendant took up the plea that the jurisdiction of the civil Court was barred. That plea gave rise to issue No. 4 to the effect: Whether the jurisdiction of this Court is barred? By its order dated October 5, 1972, the Court of Shri N.K. Jain, Subordinate Judge First Class, Narnaul, decided that issue in favour of the Defendant and held that the civil Court is not competent to proceed with this issue and its jurisdiction is specifically barred by the "provisions of the Punjab and Pepsu Acts". He, therefore, directed that the plaint of this suit be returned to the Plaintiff -Respondents for presentation to the proper Court, i.e., to the Collector, after endorsing upon the plaint the particulars required in the first proviso' to Sub -section (3) of Section 77 of the Tenancy Act. The Plaintiff -Respondents' appeal against that order was allowed by the decision of the Court of the Additional District Judge, Narnaul, which is now under revision. The solitary point, on which the learned Additional District Judge reversed the order of the trial Court, is that Section 77 of the Tenancy Act has no application to a case where the relationship of landlord and tenant is not admitted between the parties. In so far as the case of the Defendant -Petitioner that the tenancy of the Plaintiff -Respondents had come to an end with the passing of an order of ejectment was concerned, it amounted, according to the lower Appellate Court, to a denial of the relationship of landlord and tenant, thus ousting the application of Section 77 of the Tenancy Act.;