P (PLP)

Provided that‑

(1) Where in a suit cognizable by and instituted in a Civil Court it becomes' necessary to decide any matter which can under this "subsection 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, Civil Procedure Code, and return the plaint for presentation to the Collector ; (2) on the plaint being presented to the Collector, the Collector shall proceed to hear and determine the suit where the value thereof exceeds Rs. 1,000 or the matter involved is of the nature mentioned in section 77 (3), First Group, of the Punjab Tenacity Act, 1887, and in other cases may send the suit to an Assistant Collector of the Ist grade for decision. First Group. (a) * * * * (b) * * * * (c) * * * * Second Group (d) suits by a tenant to establish a claim to a right of occupancy, or by landlord to prove that a tenant has not such a right ; (e) * * * * (f) * * * * (g) * * * * (h) suits by a landlord to set aside a transfer made of a right of occupancy, or to dispossess a person to whom such a transfer has been made, or for both purposes ; (i) * * * * etc. etc. etc. The argument of the learned counsel for the appellants was that because the defendants‑appellants had pleaded in their written statement that they had a right of occupancy in the land in suit, the suit was not cognizable by a Civil Court. The learned counsel for the plaintiffs‑respondents replied that the defendants‑appellants had not claimed in their written state ment to be tenants having a right of occupancy, but this contention overlooks paragraph 4 of the written statement. It is true that the plea about the defendants being tenants having rights of occupancy, was not in such clear words as it might have been, but reading para. 4 of the written statement with para. 4 of the plaint to which it is a reply, I have no doubt in my mind that the defendants had claimed to be tenants having rights of occupancy in the land in‑suit. The learned counsel for the appellants relied on clause (d) in the Second Group of subsection (3) of ‑section 77 of the Punjab Tenancy Act, 1887, and urged that as a right of occu pancy had been claimed by the defendants‑appellants, the suit was cognizable by a Revenue Court and not by a Civil Court. Clause (d) relied upon by the learned counsel for the appellants applies to two clauses of suits, one being a suit by a tenant to establish a claim to a right of occupancy and the other a suit by a landlord to prove that a tenant had not such a right. Before clause (d) can apply it must be proved, if the suit falls under the first of the two above‑mentioned classes that the plaintiff is a tenant and the defendant a landlord, and if the suit falls under the second class that the plaintiff is a landlord and the defendant‑ a tenant. The relevant part of section 4 (5) of the Punjab Tenancy Act in which the term " tenant " is defined is as follows :‑ Tenant means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent of that land to that other person ; but it does not include * * * * * * and the term " landlord " has been defined by section 4 (6) as " a person under whom a tenant holds land and to whom the tenant is or but for a special contract would be, liable to pay rent for that land." If the definitions of " tenant " and " landlord " are substi tuted for those terms where they occur in clause (d) in the Second Group of subsection (3) of section 77 of the Punjab Tenancy Act, it becomes clear that the clause will be applicable only if the status of the parties as landlord and tenant, as the case may be; is not in dispute. If, therefore, in a suit by an owner of land it is alleged that the defendant is a trespasser, clause (d) has no application, and the jurisdiction of the Civil Courts, which are Courts of general jurisdiction, will not be taken away by any provision of the Punjab Tenancy Act, 1887. If the plaintiffs had in the present case admitted that the defendants were their tenants but had prayed for a declaration that the defendants did not hold rights of occupancy in the land in suit, the suit would have been cognizable by a Revenue Court only, but as the defendants were not admitted to be tenants, the suit was cognisable by a Civil Court. It, is well settled that a provision of law which seeks to take, away the jurisdiction of Civil Courts must be construed strictly and the ousting of jurisdiction of the Civil Courts is not to be inferred until and unless the words used in the statute make it clear that the intention was to take the jurisdiction away. I am of, the view, therefore, that the suit was cognizable by a Civil Court. The learned counsel for the appellants then urged that even if clause (d) in the Second Group of subsection (3) of section 77 of the Punjab Tenancy Act did not apply, the Civil Court could not decide the suit and was bound to refer it to a Revenue Court because the defendants‑appellants had in their written statement pleaded that Rahim Bakhsh had created a mortgage with possession on the land in suit in their favour, and the suit being for possession, amounted to a suit by a land lord to set aside a ‑ transfer made of a right of occupancy or to one to dispossess a person to whom such a transfer had been made, as contemplated by clause (h) in the Second Group of subsection (3) of section 77 of the Punjab Tenancy Act. The suit was not for one of the reliefs mentioned in the clause relied upon, but if the plaintiffs had insisted on being granted a decree for possession of the land in suit, it is possible that it would have been necessary to enter into the question whether or not the mortgage was ‑binding on the plaintiffs, but as the prayer for possession of the land had been withdrawn, no matter covered by section 77, Punjab Tenancy Act, 1887, fell to be decided. Proviso (1) to subsection (3) of section 77, Punjab Tenancy Act, which is relied upon by the learned counsel for the appellants, does not, in my view, require that a suit is to be sent to a Revenue Court as soon as one of the parties raises a plea containing a matter cognizable only by a Revenue Court, and I have no doubt in my mind that a suit is to be sent to the Revenue Court by the Civil Court only if it is necessary for its decision to give a finding on one of the matters which under section 77 of the Punjab Tenancy Act are cognizable only by a Revenue Court. If, however, the suit can be decided without giving a finding on a matter which section 77, Punjab Tenancy Act, takes out of the jurisdiction of the Civil Court, the suit is not to be sent to a Civil (Revenue?) Court for decision simply because the plaint or the written statement contains a reference to one of the matters which by section 77 of the Punjab Tenancy Act are within the exclusive jurisdiction of the Revenue Courts. In the present case, the declaration prayed for by the plaintiffs could be granted without entering into the question whether or not Rahim Bakhsh had created a mortgage on the land in suit, and if there were any doubts about the jurisdiction of the Civil Court, they were set at rest by the plaintiffs' withdrawing their prayer for possession. The third contention of the learned counsel for the appellants was that, in any case, the suit merited dismissal because the plaintiffs‑respondent could have claimed possession of the land, and as they chose to give up that claim, a mere declaration could not be granted to them. No doubt the proviso to section 42 of the Specific Relief Act,. 1877, enacts that if a plaintiff does not seek a further relief than a mere declaration of title which is open to him, the relief for declaration is not to be granted, but .the proviso cannot and does not, mean that even if a further relief can be granted by another Court only, or the further relief is not open at the time when the decree is passed, the suit for a mere declaration is to be dismissed on the ground that further relief had not been asked for. In. the present case, as asserted by the defendants‑appellants, the Civil Courts could not grant the plaintiffs a decree for posses sion of the land in suit and the further relief in the shape of possession of land was not open to them, and, therefore, the proviso to section 42, Specific Relief Act, has no application. It was no doubt open to the plaintiffs to pay off the money claimed by the defendants as mortgagees of the land in suit and then claim the possession of the land, but as the circum stances were at the time of the institution and the decision of the suit, the plaintiffs could not be granted possession of the land and they cannot be penalized if the only decree that could be granted to them is one for declaration. In the end, the learned counsel for the appellants urged that the grant of a decree for declaration being entirely dis cretionary with the Court, it should have been refused in the present case. I, however, do not see how the refusal to grant the plaintiff the decree ‑that they have been granted would have been a proper exercise of the discretion vested in the Courts below. The defendants were asserting that they were tenants having rights of occupancy in the land in suit, and if a declaration had not been granted to the plaintiffs, they would have been denied justice. Had I entertained any doubts about the jurisdiction of the Civil Courts to hear the suit, I would have acted under section 100 of the Punjab Tenancy Act, but, in my view, the Civil Courts has jurisdiction to hear the suit and, as the decision appealed against is perfectly correct, I dismiss the appeal with costs. K. M. A. Appeal dismissed.