Civil Appeals Nos 1741 and 1742 of 1981
From the Judgment and order dated 1231981 of the Punjab and Haryana High Court in RSA No 1822 of 1978
Harbans Lal and Balmukand Goel for the Appellants
Anil Dev Singh ND Garg and Rajiv Garg for the Respondent
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
How far an order directing eviction of a person by the Revenue Court under section 773 of the Punjab Tenancy Act 1887 hereinafter called the Act  operates as res judicata for a title suit filed by a person claiming to be a mortgagee and not a tenant of the alleged landlord is the question that arises in this appeal by special leave from the Full Bench decision of the High Court of Punjab and Haryana dated 12th March 1981 in second appeal
By the impugned order and judgment the High Court has dismissed the appeal of the appellants and affirmed the judgment and order dated 7th September 1978 of the Additional District Judge Gurgaon reversing the judgment and order of Sub Judge 1st Class Ballabgarh dated 4th of November 1977 dismissing the suit of the respondent
It appears that the appellants filed proceedings in the Court of Assistant Collector 1st Grade Ballabgarh seeking ejectment of the respondent from his lands on 29th July 1975 under section 773 proviso 2e of the Act on the ground that the respondent tenant had H 96 defaulted in the payment of rent
The suit was decreed on 29th October 1976
In execution of the decree the respondent was ejected from the suit land
No appeal though provided under the said Act was filed by the respondent from the said decree
The resondent however filed a suit in the civil court against the appellants alleging that he fact was a mortgagee in possession of the suit land and not a tenant and that the decree of ejectment dated 29th of October 1976 by the Revenue Court was without jurisdiction and therefore a nullity
The respondent claimed to be restored the possession of the suit land from which he had been wrongly ousted by the Revenue Court
The suit was dismissed by the learned Subordinate Judge on 4th November 1977 holding that the claim of the respondent to be a mortgagee in possession of the suit land was wrong and that the order of the Revenue Court was perfectly in order and was within that court s jurisdictional competence
It was alleged that it was of binding nature on the respondent and was not capable to challenge the same in subsequent proceedings
The claim it was asserted by the respondent in the subsequent suit was barred by the principles of res judicata
The respondent lost
He filed an appeal against the said order of the learned Subordinate Judge
The learned Additional District Judge Gurgaon vide his order dated 7th September 1978 reversed the findings of the trial court and decreed the suit of the respondent
Against the said order of the learned Additional District Judge the appellants filed Regular Second Appeals which were placed for disposal before one of the learned Judges of the High Court of Punjab and Haryana at Chandigarh
After hearing counsel for the parties the learned Judge was of the view that there were conflicting judgments on the points for determination in the case which were of importance and the matter was referred to the Hon ble the Chief Justice of the said High Court for the constitution of a larger bench for the determination of the points in controversy
The question referred to a larger bench was whether the decision of Rent Controller under the Rent Control Laws or a Revenue Court under section 77 of the Punjab Tenancy Act upon the relationship of landlord and tenant between the parties operates as res judicata and is not open to challenge in a subsequent suit or in other collateral proceedings between the parties
The learned Chief Justice constituted a Full Bench of three learned Judges for resolving the conflict pointed out in the referring order
The three learned Judges of the Full Bench have given three separate judgment and ultimately the case came to be decided in accordance with the majority view
The order of the Full Bench was that in accordance with the majority view it was held that the decision of the Revenue Court under 97 Section 77 of the Punjab Tenancy Act upon the relationship of landlord and tenant between the parties would not operate as res judicata and it would be open to challenge in a subsequent suit or any other collateral proceedings between the parties
The Full Bench thereafter directed the matter to go back to the learned single Judge for disposal in accordance with the decision of the Full Bench
Aggrieved by the aforesaid order and decision the appellants have come up in appeal before this Court
It may be mentioned that of the three learned Judges Sandhawalia CJ
was of the view that it was to operate as res judicata but the other two learned judges namely JV Gupta J and SP Goyal J held contrary views
It is the propriety and the validity of the majority view of the Full Bench which calls for an examination in this appeal
C In order to appreciate the controversy in appeal it is necessary to refer to the relevant provisions of the said Act
The preamble of the Act states that it was an Act to amend the law relating to the tenancy of land in Punjab
These provinces of Punjab had the distinction between the occupancy tenants and tenants at will with the rest of its early revenue Code from the United Provinces
The possession of a right to fixity of tenure by many cultivators in northern India was early recognised
Indeed the fact that in Lower Bengal the connection of persons whom were recognised as proprietors with the land was often far more recent than that of the cultivators inevitably suggested that the latter had rights in the soil that required protection
Fixity of tenure of resident cultivators at rents determined by authority was prominent feature of the Bengal settlement as originally planned
Regulation XXVIII of 1803 professed to extend the Bengal system to the North Western Provinces but it left the subject of tenant right in a vague and uncertain condition
The provisions of Regulation VII of 1922 were more definite
By its 9th section Settlement officers were required not only to prepare a record of persons enjoying the possession and property of the soil or vested with any heritable or transferable interest in it that is to say of proprietors but also of the rates per bigha  demandable from the resident cultivators not claiming any transferable property in the soil whether possessing the right of hereditary occupancy or not
It is not necessary to trace the history of these settlement laws which can be found in Douie s Settlement Manual 4th Edition
Twelve years  uninterrupted possession of a holding at the same rate of rent was considered as a sufficient proof of occupancy right in the United Provinces
The twelve years  rule was very generally adopted in early Punjab settlements though the best H 98 revenue officers held that it should not be regarded as the sole criterion and that the quality as well as the length of occupation should be considered
The Act in question was passed to amend the law of tenancy in Punjab which was later the object of the Act to protect the tenants from the exactions of the landlords The tenants as usual in other parts of the world were in many cases peculiarly liable to oppression or duress from their landlords and in order to protect them quite effectively from the possibility of any such oppression or duress the Act was passed
The overall scheme of the Act is to provide speedy remedies with regard to disputes between the landlords and tenants and also under what circumstances that relationship comes to an end
It is appropriate to bear in mind the whole basic question involved in this appeal is whether the courts created by this Act have limited power and jurisdiction or plenary powers and jurisdiction
In this appeal we are concerned with the amplitude of the jurisdiction of the courts under section 77 of the Act which deals with Courts and suits cognizable by them
Relevant portion of section 77 of the Act provides as follows 77
Revenue Courts and suits cognizable by them 1 When a Revenue officer is exercising jurisdiction with respect to any such suit as is described in sub section 3 or with respect to an appeal or other proceeding arising out of any such suit he shall be called a Revenue Court
2         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 Provided that 1         2        
FIRST GROUP  
SECOND GROUP   99 e suit by a landlord to eject a tenant A The controversy with which we are concerned in this appeal is a type of suits indicated in second group under clause e namely suits by a landlord to eject a tenant The question of res judicata was analysed in the background of land acquisition proceedings by this Court in Raj Lakshmi Dasi and others vs Banamali Sen and others There this Court observed that the right to receive compensation for property acquired in land acquisition proceedings as between rival claimants depended on the title to the property acquired and the dispute as to title was raised by the parties and had to be decided by the Land Acquisition Judge after contest so this decision as to title operates as res judicata in a subsequent suit between the same parties on the question of title The binding force of a judgment delivered under the Land Acquisition Act depended on general principles of law and not on section 11 of the Civil Procedure Code and the decision of a Land Acquisition Judge would operate as res judicata even though he was not competent to try the subsequent suit
It has to be emphasised however that the right to compensation depended upon the title but here in the instant case the right to ejectment existed only if the relationship of landlord and tenant existed
The Revenue Court did not have jurisdiction whether the claimant was the landlord to be entitled to eject the tenant
Our attention was drawn by Sree Harbans Lal learned counsel appearing for the appellants to section 98 of the Act as to the power of the Revenue Court to refer to the Civil Court a decision by the Revenue Court if it thought proper and also to section 99 where there is power to refer to High Court question as to jurisdiction
These provisions in our opinion do not in any way affect the question whether the decision of the Revenue Court under the Revenue Act can operate as res judicata in certain cases like the present
The limits of the jurisdiction would be apparent by the fact that in all suits by a landlord to reject a tenant do not encompass suits to decide whether a person is a tenant or not or whether the plaintiff is a landlord or not
The question was answered by this Court in Om Prakash Gupta vs Rattan Singh and another l 19641 1 SCR 259 where Sinha CJ dealing with the Delhi Rent Control Act observed at pages 264 and 265 as follows The most important question that arises for determination 100 in this case is whether or not the Rent Control authorities had jurisdiction in the matter in controversy in this case ordinarily it is for the Civil Courts to determine whether and if so what jural relationship exists between the litigating parties But the Act has been enacted to provide for the control of rents and evictions of tenants avowedly for their benefit and protection
The Act postulates the relationship of landlord and tenant which must be a pre existing relationship
The Act is directed to control some of the terms and incidents of that relationship
Hence there is no express provision in the Act empowering the Controller or the Tribunal to determine whether or not there is a relationship of landlord and tenant
In most cases such a question would not arise for determination by the authorities under the Act
A landlord must be very ill advised to start proceedings under the Act if there is no such relationship of landlord and tenant
If a person in possession of the premises is not a tenant the owner of the premises would be entitled to institute a suit for ejectment in the Civil Courts untrammelled by the provisions of the Act
It is only when he happens to be the tenant of premises in an urban area that the provisions of the Act are attracted Emphasis supplied  In Shri Raja Durga Singh of Solan vs Tholu 19631 2 SCR 693 this Court had occasion to consider the question of res judicata in the background of the jurisdiction of the Court
That was a case under section 77 of the Punjab Tenancy Act
In that case the appellant had filed a suit before the Civil Court for the ejectment of the respondent therein on the ground that they were licensees
The respondents claimed that they were occupancy tenants and contended that under section 77 of the Punjab Tenancy Act 1887 the suit was triable by a revenue court only and not by the civil court
The trial court and the first appellate court decreed the suit holding that the respondents were not tenants
On second appeal the Judicial Commissioner held that the respondents were occupancy tenants and that the civil court had no jurisdiction to entertain the suit
It was held by this Court that the civil court had jurisdiction to entertain the suit and section 77 of the Punjab Tenancy Act was applicable only to suits between landlord and tenants where there was no dispute that the person cultivating the land was a tenant
But where the status of the defendant as a tenant was not admitted by the landlord section 77 did not bar a suit in a civil court
This Court held that it would therefore be reasonable to infer 101 that the legislature barred only those suits which form the cognizance of a civil court where there was no dispute between the parties that a person cultivating land or who was in possession of land was a tenant
This is precisely what has been held in the two decisions of the Lahore High Court where there was reference at pages 698 699 of the report
In the first of these two cases
Tek Chand J had observed It is obvious that the bar under clause 4 is applicable to those cases only in which the relationship of landlord and tenant is admitted and the object of the suit is to determine the nature of the tenancy ie whether the status of the tenant falls under section 5 6 7 or 8 of the Act
In that case the suit was instituted by someone claiming to succeed to the tenancy of certain land on the death of the occupancy tenant
The learned Judge observed In a suit like the one before us the point for decision is not the nature of the tenancy but whether the defendant is related to the deceased tenant and if so whether their common ancestor had occupied the land
If these facts are established the claimant ipso facto succeeds to the occupancy tenancy
But if they are found against him he is not a tenant at all  As these facts were not established the High Court held that the landlord was entitled to sue the defendant who had entered on the land asserting a claim to be a collateral of the deceased tenant but who failed to substantiate his claim
This view was affirmed by a Full Bench consisting of five Judges in the other Lahore case
In Daya Ram vs Jagir Singh AIR 1956 HP 61 the same Judicial Commissioner who decided the appeal before us has expressed the view that where in a suit for ejectment the existence of the relationship of landlord and tenant is not admitted by the parties the Civil Court had jurisdiction to try the suit and that such a suit did not fall under section 773 of the Act
In Magiti Sasamal vs Pandab Bissoi 1962 3 SCR 673 this Court was considering the provisions of section 171 of the Orissa Tenants Protection Act 1948 3 of 1948
The provisions of that section run thus Any dispute between the tenant and the landlord as re 102 gards a tenant s possession of the land on the 1st day of September 1947 and his right to the benefits under this Act or b misuse of the land by tenant or c failure of the tenant to cultivate the land properly or d failure of the tenant to deliver to the landlord the rent accrued due within two months from the date on which it becomes pay able or e the quantity of the produce payable to the landlord as rent shall be decided by the Collector on the application of either of the parties  lt was contended in that case on behalf of the respondents who claimed to be tenants that suit for permanent injunction instituted by the appellant landlord was barred by the provisions of section 71
Dealing with this contention this Court observed as follows In other words section 71 postulates the relationship of tenant and landlord between the parties and proceeds to provide for the exclusive jurisdiction of the Collector to try the five categories of disputes that may arise between the landlord and the tenant
The disputes which are the subject matter of section 71 must be in regard to the five categories
That is the plain and obvious construction of the words any dispute as regards 
On this construction it would be unreasonable to hold that a dispute about the status of the tenant also falls within the purview of the said section
The scheme of section 71 is unambiguous and clear
It refers to the tenant and landlord as such and it contemplates disputes of the specified character arising between them
Therefore in our opinion even on a liberal construction of section 71 it would be difficult to uphold the argument that a dispute as regards the existence of relationship of landlord and tenant falls to be determined by the Collector under section 71   As regards the said observations in so far as the essential facts are concerned precisely the same is the position in the instant appeal
Here the respondent is claiming to be a mortgagee in possession and not a tenant in possession
In Magiti Sasamal vs Pandab Bissoi  the appellant had filed in the Civil Court a suit for permanent injunction restraining the respondents from entering the lands in suit on the allegation that the lands belonged to him and were in his cultivatory possession for many years and the respondents had 103 no right or title and had never cultivated them
The respondents contended that they were tenants of portions of the said lands and were in cultivating possession of the same as tenants
The question which arose for decision was whether having regard to the provisions of section 71 of the Orissa Tenants Protection Act 1948 the Civil Court had jurisdiction to entertain the suit which involved a dispute as to the relationship of landlord and tenant between the parties
It was held that even on a liberal construction of section 71 of the Act it cannot be held that disputes as regards the existence of the relationship of landlord and tenant fall to be determined by the Collector under that section
Disputes which are entrusted to the Collector under section 71 are the simple disputes specified therein in the five categories and do not include a serious dispute as to the relationship between the parties as landlord and tenant
It is well settled that ouster of jurisdiction of civil courts should not be inferred easily
It must be clearly provided for and established
This question was again viewed in the background of the in Lal Chand dead by Lrs
and others vs Radha Kishan 1977 2 SCR 522 where this Court reiterated that section 11 was not exhaustive and the principle which motivates that section could be extended to cases which do not fall strictly within the letter of the law
This Court further reiterated that the principle of res judicata was conceived in the larger public interest which required that all litigation must sooner than later come to an end
This Court in the State of Tamil Nadu vs Ramalinga Samigal Madam AIR 1986 SC794 has analysed the position in paragraph 8 as follows The principles bearing on the question as to when exclusion of the Civil Court s jurisdiction can be inferred have been indicated in several judicial pronouncements but we need refer to only two decisions
In Secretary of State vs Mask and company AIR 1940 PC lOS at p 110 the Privy Council at page 236 of the Report has observed thus It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied
It is also well settled that even if jurisdiction is so excluded the Civil Courts have jurisdiction to examine into cases where the provi 104 sions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure
In Dhulabhai vs State of Madhya Pradesh   Hidayatullah CJ speaking for the Court on the analysis of the various decisions cited before the Court ex pressing diverse views called out as many as 7 propositions out of them the first two which are material for our purposes are these 1 Where the statute gives a finality to the orders of the special tribunal the civil Court s jurisdiction must be held to be excluded if there is adequate remedy to do what the civil Courts would normally do in a suit
Such provision however does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure
2 Where there is an express bar of the jurisdiction of the Court an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court
Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive
In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted and whether remedies normally associated with actions in civil Courts are prescribed by the said statute or not 
Applying the aforesaid principles it appears to us that if the dispute was as to the nature of the relationship of landlord and tenant 105 between the parties the Revenue Court under the Punjab Tenancy A Act had no jurisdiction when there was admitted position the relationship of landlord and tenant was accepted the remedies and rights of the parties should be worked out under the scheme of the Act
A salutary and simple test to apply in determining whether the previous decision operated as res judicata or on principles analogous thereto is to find out whether the first court here the Revenue Court could go into the question whether the respondent was a tenant in possession or mortgagee in possession
It is clear in view of langugage mentiond before that it could not
If that be so there was no res judicata
The subsequent civil suit was not barred by res judicata
In that view of the matter we are of the opinion that the High Court of Punjab and Haryana was right in holding that there was no res judicata so far as the second suit based on the assertion of the title of the respondent was concerned
The appeals must therefore fail and are accordingly dismissed with costs
D NPV Appeals dismissed


Summary:
A suit was filed by the appellants in the Court of the Assistant Collector seeking ejectment of the respondent tenant from his lands under section 773 proviso 2e of the Punjab Tenancy Act 1887 on the ground that he had defaulted in the payment of rent and it was decreed
In execution of the decree the respondent was ejected from the suit land
No appeal was filed from the said decree but the respondent filed a suit in the Civil Court against the appellants alleging that he was in fact a mortgagee in possession of the suit land and not a tenant and that the decree of ejectment passed by the Revenue Court was without jurisdiction and therefore a nullity and claimed restoration of the possession of the suit land from which he had been wrongly ousted by the Revenue Court
The suit was dismissed by the Subordinate Judge holding that the claim of the respondent to be a mortgagee in possession of the suit land was wrong and that the order of the Revenue Court was perfectly in order and within that court s jurisdictional competence and that it was of a binding nature on the respondent and was not open to challenge in subsequent proceedings
The appellant asserted that the claim by the respondent in the subsequent suit was barred by the principles of res judicata
The suit was dismissed
In appeal the Additional District Judge reversed the findings of the trial court and decreed the suit of the respondent
The appellants filed regular second appeals before the High Court
94 A Single Judge of the High Court was of the view that in view of the conflicting judgments on the points for determination in the case the matter required to be referred to a larger bench
The Full Bench by a majority view held that the decision of the Revenue Court under section 77 of the Punjab Tenancy Act upon the relationship of landlord and tenant between the parties would not operate as res judicata and it would be open to challenge in a subsequent suit or in other collateral proceedings between the parties and remitted the matter back to the Single Judge for disposal in accordance with the above decision
The question for consideration in the appeals by Special Leave before this Court was as to how far an order of eviction of a person by the Revenue Court under section 773 of the Punjab Tenancy Act 1887 operated as res judicata for a title suit filed by a person claiming to be a mortgagee and not a tenant of the alleged landlord
Dismissing the appeals by special leave this Court  HELD 1
The High Court was right in holding that there was no res judicata so far as the second suit based on the assertion of the title of the respondent was concerned
105C D 21 The overall scheme of the Act is to provide speedy remedies with regard to disputes between the landlords and tenants and also under what circumstances that relationship came to an end
Sections 98 and 99 do not in any way affect the question whether the decision of the Revenue Court under the Revenue Act can operate as res judicata in certain cases
The limits of the jurisdiction would be apparent by the fact that all suits by a landlord to eject a tenant do not encompass suits to decide whether a person was a tenant or not or whether the plaintiff was a landlord or not
98C 99 F G 22 ouster of jurisdiction of Civil Courts should not be inferred easily
It must be clearly provided for and established
If the dispute was as to the nature of the relationship of landlord and tenant between the parties the Revenue Court under the Punjab Tenancy Act had no jurisdiction when there was admitted position the relationship of landlord and tenant was accepted the remedies and rights of the parties should be worked out under the scheme of the Act
103C D 23 A salutory and simple test to apply in determining whether the previous decision operated as res judicata or on principles analogous thereto was to find out whether the first court could go into the question 95 whether the respondent was a tenant in possession or mortgagee in A possession
In view of the language of section 77 it is clear that it could not and therefore there was no res judicata
The subsequent civil suit was
therefore not barred by res judicata
105B C Raj Lakshmi Dasi and others vs Banamali Sen and others  Om Prakash Gupta vs Rattan Singh and another  Shri Raja Durga Singh of Solan vs Tholu   Magiti Sasamal vs Pandab Bissoi  Lal Chand dead by Lrs
and others vs Radha Kishan 1977 2 SCR 522 and State of Tamil Nadu vs Ramalinga Samigal Madam   referred to