1955FC6 (PLP)

AKRAM, J.‑The suit out of which this appeal arises was instituted by the plaintiffs‑appellants for the recovery of possession of some agricultural lands measuring about 207 kanals in District Sargodha. The case of the plaintiffs was that one Nazar Muhammad was the absolute owner of the suit lands which he had sold along with some other lands to the plaintiffs in equal shares by a sale deed dated the 28th March, 1942 ; that the defendants Nos. 1 to 5, Raja and others being in possession of the lands, Nazar Muhammad had caused a notice of ejectment to be served on the defendants under section 45 of the Punjab Tenancy Act (XVI of 1887) ; that the defendants had instituted in a Revenue Court a suit to contest their liability to ejectment, but ultimately Nazar Muhammad had succeeded in obtaining possession of the lands on the 12th June, 1942, in execution of the order passed by the Revenue Court, and that about two months thereafter the defendants had again taken possession of these lands. The main defence of Raja, defendant No. 1, who alone appeared at the trial, was that he was the owner of the lands as a co‑sharer of Nazar Muhammad ; that the averment of recovery of possession by the plaintiffs on the 12th June, 1942, was wholly untrue and that defendant No. 1 had continued to remain in possession all through. The trial Court decreed the plaintiffs' suit but ort appeal by the defendants the High Court of Judicature 'at Lahore, reversed the decision of the trial Court and dismissed the suit with costs throughout, holding inter alia that the plaintiffs had not obtained possession on the 12th June, 1942, as alleged by them and that the suit was, therefore, barred under article 142 of the Limitation Act. From this decision the plaintiffs preferred the present appeal,‑after obtaining the necessary certificate under section I10, C. P. C. The principal points argued before us by counsel for the appellants were :‑

1. That the finding in the revenue suit that the relation ship of landlord and tenant existed between the plaintiffs and the defendants was conclusive and established the plaintiffs' constructive possession within 12 years prior to the institution of the suit. It is argued that the Revenue Courts have an exclusive jurisdiction with reference to every question relating to tenancy and the Civil Courts, therefore, have no jurisdiction to re‑open and to decide such questions after they have been disposed'of by the Revenue anthorities even though there may have been a dispute between the parties as to the existence of the tenancy itself. .In support reliance was placed on the decisions in the case of Mehr Khan and others v. Atta Muhammad Shah (A I R 1935 Lah. 719) and Ujagar Singh and another v Gora and others (A I R 1938 Lah. 82) as also on the'wording of section 50A of the Punjab Tenancy Act (XVI of 1887). But these decisions were dis sented from and overruled in the Full Bench case of Ilam Din and another v. Mangal Singh and others (A I R 1941 Lah. 189) in which section 50A was interpreted to mean "that a disappointed tenant whose ejectment has been ordered by a Revenue Court under section 45 or whose suit has been dismissed under section 50, cannot institute a suit in a Civil Court to contest his liability or to recover possession as a tenant or to recover occupancy rights or to recover compensation. In other words, the amending section bars a person from re‑agitating in a Civil Court the question of his status as a tenants which he has lost by the action of the Revenue Court ; but it does not prevent the person so ejected from instituting a suit for recovery of pos session by establishing a title other than that of a tenant". Thus it is clear and is now well settled that where the tenancy itself is denied and possession is claimed on the basis of owner ship or some right other than that of a tenant, the decision of the Revenue Court will not operate as a bar for the Civil Court to decide the question of title raised before it. The above view seems to me to be correct both on statutory authority and on principle. I, therefore, agree in the Interpre tation which has been put upon section 50A in the Full Bench case aforesaid, viz., that though a civil suit may be barred in respect to the nature and character of a tenancy in view of section 50A of the Punjab Tenancy Act (XVI of 1887), a suit for possession on the basis of some title other than that of a tenant does not become incompetent on account of that section. From this it must follow that a person whose suit to contest his liability to ejectment has failed and who has been held by the Revenue Court to be a tenant can set up in defence his title to the land in a subsequent suit in a Civil Court for his dispossession.

2. Next, it wits urged that the proper article applicable to the case was article 144 and not article 142 of the Limitation Act. But for deciding this question one has to look to the plaint and the issues in the case. Paragraph No. 2 of the plaint clearly alleges possession and paragraph No. 3 dispos session of the plaintiffs while issue No. 2 reads as follows :‑ "Did not plaintiff remain in possession of the land in dis pute within twelve years before the institution of the suit?" Plaintiffs, therefore, cannot be permitted now to change from and take up the position that they should be deemed to be in constructive possession through the defendants in spite of the later's denial of the tenancy from the very beginning and the failure of the plaintiffs to prove actual possession, In my opinion both the contentions fail, I dismiss the appeal with costs. MUHAMMAD MUNIR, C. J.‑I agree. M. SHAHABUDDIN, J.‑I agree. A. R. CORNELIUS, J.‑I agree. MUHAMMAD SHARIF, J.‑I agree. K. M. A Appeal dismissed.