P L D 1966 (W (PLP)

Under section 116, Evidence Act, 1872, a tenant cannot deny the title of his landlord‑once a tenant always a tenant. This provision is, however, only for the benefit of the landlord, and does not apply in a case where the landlord himself accepts the repudiation of the tenancy and treats him a trespasser. If he files, in such a case a suit in the civil Court, the defendant cannot raise the plea of being the tenant. The relationship of landlord and tenant is based on a contract. Once the tenancy is repudiated and the landlord accepts it, the contract comes to an end, and the relationship between the parties as a landlord and tenant ceases to exist. The landlord after that can proceed against the tenant to recover the property on the basis of his title. Fazal Karim for Appellants. Iftikhar‑ul‑Haq Khan for Respondents. Pates of hearing: 15th, 16th, 27th April and 1st May 1964, This judgment will dispose of S. A. O. 43, 71, 72, 73, 74 and 75 of 1961 which arise out of the orders of Mehr Sher Muhammad Sial, District Judge, Gujranwala, dated the 21st of January 1961, whereby he accepted the appeals, set aside the judgments and decrees of the trial Court and directed that the plaints be returned under section 77, subsection (3), proviso (1) of the Punjab Tenancy Act, for presentation to the Collector. The appellants have preferred second appeals against those orders.

2. Briefly the facts of the case are that Muhammad Islam and others, the respondents, instituted suits for ejectment against the present appellants, in the revenue Court under section 77 of the Tenancy Act. In their written statement it was alleged by the defendants that they were not Ghair Maurusi tenants but were in possession of the land as owners. They also claimed to have acquired title to the land by adverse possession for over 12 years. No objection, however, was taken to the jurisdiction of the revenue Court to entertain the ejectment suit. Instead of proceeding with the suits, the plaintiffs withdrew them and brought fresh suits in the civil Court, out of which these appeals have arisen. In the plaints no reference was made to the revenue suits which had been withdrawn and it was briefly alleged that the defendants had denied the plaintiffs title and had claimed ownership on the basis of adverse possession. The defendants respondents raised a preliminary‑objection about the jurisdiction of the civil Court. On merits, they pleaded that they had never denied the plaintiffs' ownership of the land or claimed title to the land on the basis of adverse possession. It was further alleged that their ancestors had brought the land under cultivation at a considerable expense and they could not be ejected without payment of compensation. They also claimed rights of occupancy in the land on the ground that their ancestors had settled in the village along with the ancestors of the plaintiffs‑appellants.

3. The trial Court decided the preliminary issue as to jurisdiction against the defendants on the 3rd of June 1960 and on merits decreed the suits on the 23rd of June 1960. In appeals the learned District Judge held that the civil Courts had no jurisdiction to deal with the cases and they were exclusively triable by the revenue Court. The plaints were ordered to be returned under section 77(3) proviso (1) of the Punjab Tenancy Act for presentation to the Collector. The plaintiffs have preferred these appeals under Order XLI, rule 23 of the Code of Civil Procedure.

4. The learned counsel for the appellants contended that the jurisdiction of the Court is determined with reference to the allegations made in the plaint and not on the pleas put forth by the defendants. The suits were instituted only on the basis of title and there the plaintiffs did not at all allege that the defendants were their tenants looking at the allegations in the plaint there can be no doubt whatsoever that the civil Court had the jurisdiction to try these cases because it is a well established principle that the nature of a suit for the purpose of determining jurisdiction has to be decided on the basis of the averments in the plaint and not on the basis, of any defence that may be taken up. In Cheta v. Baija and others (A I R 1927 Lah. 452) it was held) that in order to ascertain the nature of a suit the general rule is that the allegations in the plaint must, primarily, be looked to and that these allegations govern the question of jurisdiction. The same view was affirmed in Baru and others v. Naidar and others (A I R 1942 Lah. 217). It was also held in Muhammad Yusuf v. Nek Muhammad (P L D 1955 Lah. 183) that the jurisdiction of a Court is determined not by the pleas of the defendant but by the allegations in the plaint. As indicated above, the plaintiffs' suits, according to the allega tions in the plaint, were only for the recovery of the possession of the land in dispute on the basis of title as owners of the land, the defendants being treated as trespassers. Their suits were against the defendants not as the tenants but as trespassers. Prima facie, therefore, the suits were cognizable by a civil Court. It was for this reason that the plaints were entertained and the trial Court did not proceed to return them under Order VII, rule 10 of the Code of Civil Procedure. The respondents defendants, however, relying on sub‑clause (e) of the second group of clause 3 of section 77 of the Punjab Tenancy Act, contended that it was a suit by a landlord to eject a tenant and was, therefore, exclusively triable by a revenue Court. This clause in my opinion applied only when the relationship of landlord and tenant is admitted and the nature of the tenancy alone is in dispute. This was also the view taken in Sham Singh and others R v. Amarjit Singh (A I R 1931 Lah. 362). A suit, however, in which the point for determination is not the nature, of the tenancy but as to whether the defendant is liable to be dispossessed on grounds other than the relationship of the parties as landlord and tenant, is cognizable by a civil Court. Doubtless, proviso (1), section 77 of the Punjab Tenancy Act, creates an exception to this rule and. where in a suit cognizable and instituted in a civil Court it r becomes necessary to decide any matter which can be heard and determined under this section by a revenue Court, the civil Court shall return the plaint for determination to the revenue Court. The civil Court, therefore, had the jurisdiction to try the suit and the Court could return the plaints only if it was neces sary for it to decide the question of ejectment of a tenant by a landlord. The defendants in their written statement had alleged that there existed a relationship of landlord and tenant between them and thus raised the plea of an ouster of jurisdiction of the civil Courts. The learned District Judge relying on a jamabandi has held that the defendant was a tenant of the plaintiffs. On behalf of the plaintiffs‑appellants it is contended that the respondents were estopped to claim that relationship of landlord and tenants existed, between the parties when they had denied the same in earlier suit before the revenue Court, and acting on that denial, the plaintiffs had withdrawn the suit. It is, therefore, to be examined whether it was competent for the learned District Judge in this case to determine and hold that the defendants were the tenants of the plaintiffs. The civil Court can grant no relief and decide no question suo motu. Unless it is provided otherwise in a Statute a civil Court assumes jurisdiction in a case only on a plaint being validly and properly presented and it can then decide only those questions which may be legally raised by the parties in the suit. A question, therefore, arises whether the defendants were estopped to raise this plea. The defendants denied to have put in any written statements before the revenue Court where they might have denied the tenancy and claimed the ownership by adverse possession. The plaintiffs proved the written statement Exh. P. 1 through the testimony of Mian Muhammad Arif, the counsel for the defendants in the revenue Court. The defendants had clearly denied in Exh. P. 1 that they were the tenants. On the other hand, they made a definite averment that they were in possession of the land as owners. They claimed to have acquired the title by adverse possession. The revenue Court acting under section 98 could refer the parties to civil Court for the decision on the question of adverse possession. The plaintiffs on their own withdrew the suits from the revenue Court and filed fresh suits in the civil Court. They did so on the ground that the defendants denied to be their tenants and by unmistakably repudiating their title had claimed themselves to be the owner by adverse possession. If the defendants had not raised the plea of adverse possession and had admitted themselves to be the tenants, the suit would have proceeded in the revenue Court, and there would have been no occasion to withdraw the same. The plaintiffs, must have incurred expenses of litigation in the revenue Court, and the‑ institution of civil suits meant an expenditure over again. The plaintiffs also wasted a considerable time in the earlier litigation. In the suits which they filed in the civil Court, after withdrawal of the suits from the revenue Court, the defendants made a volte face and instead of reiterating their plea of title by adverse possession, claimed to be tenant of the plaintiffs and objected to the jurisdiction of the civil Court. The pleas taken by the defendants in the revenue Court and then in the civil Court are destructive of each other. The defendants cannot be permitted to approbate and reprobate. The plaintiffs withdrew the suits on the basis of the plea raised by the defendants. The defendants are estopped in law from subsequently taking a position contrary to the position they had taken up earlier. A reference may be made to Desai and others v.i Channappa Mahalingappa and others (A I R 1934 Bom. 329,) where it was held that "a party cannot be allowed to say at one time that the question between him and the opposite party as to adverse possession is not necessary to be decided in the suit and thereby induce the Court to refrain from deciding it and at another time say that because that question was not decided between him and the other party, the latter's claim is barred by adverse possession which is the very issue which he objected to be decided. Even if he is not estopped the principle of approbation and reprobation will apply and he cannot be allowed to take this stand‑point". This was also the view taken in Thana Ram and another v. Himtu Ram and another (A I R 1935 Lah. 96) and their Lordships observed as, "Litigants cannot be allowed to blow hot and cold. Hence when a person who got execution Court to hold that a. certain decree was a declaratory one cannot subsequently take the plea that the decree is one for possession and is capable of execution". Mr. M. Monir (the ex‑Chief Justice of Pakistan) in the 4th Edition of Principles and Digest of the Law of Evidence has expressed his view at page 746‑747 in the following words: "The basic principles underlying the doctrine of estoppel by election is that where A, dealing with B, is confronted with two alternative and mutually exclusive courses of action in relation to such dealing, between which he. may make his election, and A so conducts himself as reasonably to induce B to believe that he is intending definitely to adopt the one course and definitely to reject or relinquish the other, and in such belief B alters his position to his detriment, A is precluded, as against B, from afterwards resorting to the course which he has thus deliberately declared his intention of rejecting." The general rule of estoppel underlying such class of cases is stated in Bigelow on, Estoppel, Sixth Edition in the following words, "it may be laid down as a broad proposition that one who, without mistake induced by the opposite‑party, has taken a particular position deliberately in the course of a litigation must act consistently with it; one cannot play fast and loose." It was held in Mahadeo Singh v. Pudai Singh (I L R 5 Luck. 645), "that the defendant was estopped from raising that plea now and that it was too late for the defendant to deny the truth of his plea raised in the revenue Court when the plea had compelled the plaintiff to put his plaint before the civil Court for adjudication". The view of the Court in Saira Bibi v. Chandra Pal Singh (A I R 1928 Oudh 503) was, "when an appeal is rightly filed, in a revenue Court but it is dismissed on the respondent's objection to the jurisdiction of that Court, and the appeal is subsequently filed in a civil Court, the respondent will not be heard to object to the jurisdiction of the civil Court". In Mathra Das v. Kanshi Ram (120 1 C 594) the Court held that "a party who gets an application for revision dismissed on the ground that the order sought to be revised is appeal-able is estopped from contending, when an appeal is preferred by his opponent, that no appeal lies". It was held in Hamanta Kumari Devi v. Parasanna 'Kumar Datta (I L R 56 Cal. 584), "It is hardly consonant with justice that the defendants, who took up in the proceedings under section 105 the position that the applications did not lie, should be allowed to turn round and say that the said applications were entertain-able in law, and as such operate as a bar to the suits. The present suits may rightly be said to have arisen out of the result of those applications. It is well settled that a party litigant cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold, to approbate and repprobate, to the detriment of his opponent ." The principle enunciated in this case is applicable to the facts of this case.

5. There is yet another aspect of the case under, section 116, a tenant cannot deny the title of his landlord once a tenant always a tenant. This provision is, however, only for the benefit of the landlord, and does not apply in a case where the landlord himself accepts the repudiation of the tenancy and treats him a trespasser. If he files, in such a case a suit ire the civil Court, the defendant cannot raise the plea of being the tenant. The relationship of landlord and tenant is based on a contract. Once the tenancy is repudiated and the landlord accepts it, the contract comes to an end, and the relationship between the parties as a landlord and tenant ceases to exist., The landlord after that can proceed against the tenant to recover the property on the basis of his title. The plea of the defendants that they were the tenants of the plaintiffs has to be ignored, estopped as they are to raise that plea. There thus remains the case of the plaintiffs based only on their title, and such a suit is cognizable by the civil Court.

6. The order of the learned Additional District Judge, dated the 21st of January 1961 whereby he directed that the plaints be returned under section 77(3) of the Punjab Tenancy Act for presentation to the Collector, is set aside and the appeal is remanded for disposal on merits. There shall be no order as to costs. R. M. A. Appeal accepted.