P (PLP)

M. R. KAYANI, J.‑

Sher Zaman and Gull Ahmad brought a suit against Ahmad Khan and others for a declaration that they had not‑ sold their occupancy rights in respect of certain land to the defendants, who were their landlords, nor had they given over possession td them, nor relinquished the occupancy tenancy, and for a permanent injunction restraining the defendants from interfer ing with the possession of the plaintiffs on the ground of an allege sale. The trial Court has returned the plaint for presentation to Revenue Court on the ground that the matter was covered by section 77 subsection (3) (d) of the Punjab Tenancy Act, which requires that suits by a tenant to establish claim to a right of occupancy or by landlord to prove that a tenant has not such a right shall be heard and determined by Revenue Courts. From this order the plaintiffs have come in revision. It is admitted that the plaintiffs are at the present moment tenants under the defendants. Both parties rely on the same rulings. It is unnecessary to mention all these rulings because they all agree on the principle involved in section 77. 1 may refer only to two Full Bench cases, namely, Cheta v. Bajja (9 Lah. 38) and Baru v: Niadar (A I R 1942 Lah. 217). In the first case the question was whether a Civil Court has jurisdiction to try a suit brought by a person who has been dispossessed from his tenancy after a notice issued to him under section 43 of the Tenancy Act‑and who has been unsuccessful in a suit under section 45 to contest his liability to ejectment, for possession of the land from which he has been ejected on the ground that he has a right of occupancy therein, and whether section 77 (3) (d) of the Act bars such a suit. The answer was in the affirmative. In the second case, the landlords were sued by persons who alleged themselves to be tenants on the ground that they, namely the occupancy tenants, had put the landlords into possession of the land as tenants‑at‑will but that since they had refused to pay rent, they should be ejected. The landlords took the plea that they never had been tenants and that they had entered upon the land because the plaintiffs had abandoned their right of occupancy which had become extinguished by reason of this abandonment. This plea was upheld by the Revenue Court which decided that the plaintiffs' right of occupancy; which otherwise had been established and would have existed, had been extinguished by abandonment. The occupancy tenants there upon brought a suit in a Civil Court for possession of the land on the ground that they were its occupancy tenants and that the landlords, who were in possession, were merely trespassers thereon. It was held that section 77 (3) (d) applies only when the relationship of landlord and tenant is admitted and the nature of the tenancy alone is in dispute. A suit by an occupancy tenant who is out of possession, to recover possession from his landlord of the land to which he claims the occupancy right does not fall within section 77 (3),(d), because it is not a suit by a "tenant" to establish a claim to a right of occupancy and therefore is initially the jurisdiction of the Civil Court. It was argued for the defendants that since the relationship of landlord and tenant was admitted by the plaintiffs, the suit fell within section 77 (3) (d). For the plaintiffs, however, the argu ment was that section 77 (3).(d) not only requires that the suit shall be between landlord and tenant but further requires that the dispute should be as regards the nature of the tenancy, In other words, if the question is whether the plaintiffs are tenants‑at- will or occupancy tenants and if the later, whether then are occupancy tenants under section 5 or some other section of the Tenancy Act, the suit will be cognizable only by ), Revenue Court. It seems to me that the contention of the plaintiffs counsel should be accepted. The present suit is not one for establishing a claim to a right of occupancy. It is for a declaration that a certain sale, upon which the defendants rely and by which the defendants are alleged to have purchased the plaintiffs' right of occupancy, did not, as a matter of fact, take place between the parties. That question is essentially one for the determination of the Civil Court, and the mere fact that the parties are related to each other as landlord and tenant will not bring it within section

77. The plaintiffs do not seek to establish a claim to a right of occu pancy. Their, claim is that the right of occupancy which they possessed should not be taken away from them by virtue of, an alleged sale. I accept the petition with costs and direct the trial Court to entertain the suit. A. H Revision accepted.