P L D 1962 (W (PLP)

Provided that if a tenant fails to pay the compensation determined in accordance with the provisions of clauses (b) and (c) of this subsection, the rights of occupancy on payment of compensation by the landlord to be determined by the Provincial Government in this behalf shall be extinguished and shall vest in the landlord and he shall be entitled to possession thereof free from any incumbrance or lease created by the tenant in respect of that land. (2) Any occupancy tenant acquiring land in accordance with the provisions of subsection (1) shall acquire it free from any incumbrance created in respect of that land by the landlord." Exception-This section shall not apply to land owned by Government (both Central and Provincial). "4-A. (1) Any occupancy tenant who at the commencement of this Act, occupies land as such and pays rent by division of the produce shall become full owner of the portion of the land in proportion to his share of the produce, which he retains for himself, without payment of any compensation to the landlord. (2) Any occupancy tenant acquiring land in accordance with the provisions of subsection (1) shill acquire it free from any incumbrance created in respect of that land by the landlord. (3) Subject to the provisions of subsections (1) and (2), the landlord shall take possession of the remaining portion of the land at the expiry of the current agricultural year, free from any incumbrance or lease created by the tenant and occupancy rights therein shall be extinguished. (4) Notwithstanding anything contained in the preceding sub sections, the occupancy tenant shall continue to pay to the land lord the produce of the land in accordance with the terms of his existing tenancy until the partition of the holding between the landlord and tenant is effected." "

83. Notwithstanding the repeal of the Punjab Tenancy Act, 1887, as applicable to the North-West Frontier Province by the North-West Frontier Province Law and Justice Regulation, 1901, and Hazara Tenancy Regulation, 1887, Hazara Tenancy (Amendment) Regulation, 1904, any person who put for this Act would have been entitled to be declared an occupancy tenant within the meaning of section 5 of the Punjab Tenancy Act of 1887, as applicable to the North-West Frontier Province by North-West Frontier Province Law and Justice Regulation, 1901, or section 5 of Hazara Tenancy Regulation, 1887, shall within three years after the commencement of this Act apply for such declaration and on such declaration being granted, he shall be entitled to the benefit of sections 4 and 4-A of this Act." "

85. The following Acts are hereby repealed:-- (a) The Punjab Tenancy Act, 1887, as applicable to the North West Frontier Province by the North-West Frontier Province Law and Justice Regulation, 1901. (b) Hazara Tenancy Regulation, 1887. (c) Hazara Tenancy (Amendment) Regulation, 1904. (d) The Punjab Tenancy (N.-W. F. P.) Amendment Act, 1939. (e) The Punjab Tenancy (North-West Frontier Province) (Amendment) Act, 1945. (f) The Punjab Tenancy (North-West Frontier Province) (Amendment) Act, 1946. (g) The Punjab Tenancy (North-West Frontier Province) (Amendment) Act, 1948. Provided that- (a) any notice, form, order, rule, regulation or direction prescribed, made, issued or given under any enactment repealed by this Act shall continue in force as if it had been prescribed, made, issued or given under this Act, and may be repealed, revoked, varied or amended accordingly ; (b) Any document referring to any Act or enactment repealed by this Act shall be construed as referring to this Act or to the corresponding enactment of this Act ; and (c) any officer or person appointed to act or employed under or by virtue of any enactment repealed by this Act shall continue and be deemed to have been appointed or employed under or by virtue of this Act Provided further that until the rights of an occupancy tenant are determined under sections 4 and 4-A of this Act, all the provisions of the Punjab Tenancy Act, 1887, as applied to the North-West Frontier Province or the Hazara Tenancy Regula tion, 1887, as the case may be, so far as they relate to the occupancy tenancy, shall remain in force."

6. The relevant portions of section 77 of the Punjab Tenancy Act of 1887 are to the following effect "77(3). The following suits shall be instituted in, and, heard and determined by, Revenue Courts and no other Court shall take cognizance of any dispute or matter with respect to which any such suit might be instituted . . . . . . . . . . 2nd Group. (d) Suits by a tenant to establish a claim to a right of occupancy, or by a landlord to prove that a tenant has not such a right."

7. It will be seen that sections 4 and 4-A of the North-West Frontier Province Tenancy Act of 1950 will come into play only if a person is an occupancy tenant at the commencement of the Act, and satisfies the other conditions laid down in the sections. If he is not recorded as an occupancy tenant at the commencement of the Act, his case clearly seems to be governed by section 83 of the Act, and in order to avail himself of the benefits conferred by sections 4 and 4-A of the Act, such a person shall have to obtain, In the first instance, a declaration of his occupancy rights, and until such time as such a declaration has been obtained, he cannot be deemed to have become the owner by the operation of sections 4 and 4-A of the Act. In the present case, it is an admitted position q that the petitioner-plaintiffs were not recorded as occupancy tenants in the revenue records at the relevant time, and accordingly they cannot be deemed to have become owners by the operation of sections 4 and 4-A of the Act. Therefore, the relief claimed by them in the present suit is in effect a declaration of their occupancy rights in the land, and only when that declaration is granted, can they claim a declaration of ownership. It seems to me, therefore, that this is not a suit for declaration of title which would be within the competence of a Court of general jurisdiction, but on the other hand, it is a suit the subject-matter of which is specifically dealt with in section 83 of the North West Frontier Province Tenancy Act read with the proviso to section 85 of the same Act.

8. The case of Abdul Jalil Khan and others v. Muhammad Umar Khan and others, was on a different footing, as the occupancy rights in that case had been terminated under section 4-A of the N. W. F. P. Tenancy Act by the attestation of a mutation, and on the termination of such rights, the Punjab Tenancy Act of 1887 went out of action by reason of its repeal by section 85 of the N.-W. F. P. Tenancy Act of 1950. That case is, therefore, clearly distinguishable from the facts of the present case where the occupancy rights have not yet been determined.

9. The decision in Umar Said and others v. Fait Muhammad Khan and others is again not of direct assistance for our present purpose, for in that case also a mutation had already been attested under sections 4 and 4-A of the Act, thus extinguish ing the occupancy rights. However, their Lordships held that "whatever matters or suits are excluded by the Act from the Civil Court are meticulously mentioned in sections 48 and 49, and there is no provision in any other part of the Act indicating how a dispute of the present nature can be decided by a Revenue Officer or a Revenue Court." In other words, their Lordships accepted the exclusion of the jurisdiction of the Civil Court in cases which are expressly so indicated in the Act.

10. I have already observed that section 83 of the Act clearly deals with the present case, namely, that the petitioners should first obtain a declaration of their occupancy rights before they can benefit under sections 4 and 4-A of the Act. Until such a declaration is obtained and benefit taken under section 4 or section 4-A of the Act, the tenancy rights are not determined, with the result that under the terms of the second proviso to section 85 of the Act the provisions of the Punjab Tenancy Act of 1887 shall continue to apply. The result is two-fold. Section 83 itself lays down a Special procedure for settling the matter in question. It prescribes an application to obtain the requisite declaration of occupancy rights. If for any reason the matter is not concluded by an application, and it is considered that a suit will be necessary or permissible then the matter would fall within the purview of Item (d) of Second Group of section 77 of the Punjab Tenancy Act of 1887, which would continue to be applicable as long as the tenancy rights are not determined under sections 4 and 4-A of the N.-W. F. P. Tenancy Act. Section 77 of the Punjab Tenancy Act of 1887 clearly bars the jurisdiction of the Civil Court when the relief sought is a declaration of occupancy rights.

11. For these reasons, I am in agreement with the learned Senior Sub-Judge that the jurisdiction of the Civil Court was barred in this suit. The question, however, is whether on arriving at this finding, the suit of the petitioners should have been dismissed, or whether their plaint should have been returned for presentation to the proper Court. Mr. Abdul Latif Khan urged that under O. VII, r. 10 of the Civil Procedure Code, the plaint should have been returned to the petitioners for presentation to the proper Court. Sheikh Allah Bakhsh, the learned counsel appearing for the respondents however, contended that section 83 of the N.-W. F. P. Tenancy Act of 1950 contemplates an application for the declaration of occupancy rights, and no suit could be brought under section 83, and therefore, this was not a case where the plaint could be returned for presentation to the proper Court. There is, however, authority for the view that the previsions of O. VII, r. 10, C. P. C. would apply even if a suit does not lie in another Court and only an application lies. This view was expressed in Baldeo Das Kedar Nath v. Bombay Mercan tile Bank Ltd., and others (A I R 1920 Oudh 21), with which I am in respectful agreement. I consider that once the Court has come to the conclusion that it has no jurisdiction to entertain the suit, then O. VII, r. 10, C. P. C. entitles it to return the plaint, and the Court whose jurisdiction has been barred, need not go into the further question whether a suit of only an application would lie In another Court. It would be for the Court of competent jurisdiction to go into that question. I am of th view, therefore, that the proper order to make in this case would be to return the plaint to the petitioners under the provisions of O. VII, r. 10 of the Civil Procedure Code and not to dismiss their suit. I would accept the petition to this extent and, modifying the order of the lower Court, direct that the plaint be returned to the petitioners for presentation to the proper Court.

12. In view of my finding on the question of jurisdiction, it Is hardly necessary to observe that it would be for the Revenue Officer or the Revenue Court concerned to decide the question of limitation as well as the question whether the petitioners are indeed occupancy tenants of the land, or not. The findings of the Courts below on these issues being without jurisdiction are of no avail to either of the parties.

13. In view of the legal questions involved, the parties are left to bear their own costs throughout. K. B. A. Petition partly accepted.