RSA No. 1623 of 2007 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1623 of 2007 Date of Decision: 21-07-2009 Ajmer Singh Gill ......Appellant Versus Dharmshala Patti Gill and others .......Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri Ashok Singla, Advocate, for the appellant. Shri G.S. Brar, Advocate, for respondent No.1. HEMANT GUPTA, J. (Oral). The plaintiff is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby his suit for declaration challenging the order of eviction passed by the learned Collector, Faridkot on 6.6.2000 and affirmed in appeal by the Financial Commissioner on 9.9.2002 as void, ineffective and not binding upon him, was dismissed. Dharmshala Patti Gill of village Panch Garain Kalan, filed a suit for ejectment against the plaintiff-appellant alleging therein that the plaintiff is a tenant under it. The case of the plaintiff is that the earlier suit RSA No. 1623 of 2007 (2) has been brought in representative capacity without seeking any permission and that there is no revenue record to prove that the plaintiff was ever inducted as a tenant. It is the case of the plaintiff that he is not a tenant over the suit land and rather he is in exclusive possession of the same as a co-sharer. Since the land in dispute is joint and no partition has taken place, therefore, the defendants cannot take possession of the land in dispute on the basis of eviction orders passed by the revenue authorities. The said suit was contested by the defendants, inter-alia, on the ground that in a suit for ejectment, a decree has been passed in favour of the plaintiff by the Collector, Faridkot and on 6.6.2000 affirmed by Financial Commissioner on 9.9.2002. He has admitted himself to be a tenant over the land in dispute. He has so admitted in his statement on oath in the Court that he is a tenant. The plaintiff is trying to avoid ejectment for one or the other reason. The suit was said to be false and frivolous. It has been found by the learned trial Court that Dharmshala Patti Gill has sought ejectment of the plaintiff on the ground of non payment of rent by filing a petition on 2.12.1992. The stand of the plaintiff was that he is a tenant and paying rent regularly, therefore,he cannot be ejected. Written statement of the plaintiff in earlier proceedings is Exhibit D.1 in the present proceedings. The plaintiff appeared as his own witness and asserted his status as a tenant. The statement is Exhibit D.2. Having stated so in the proceedings for eviction, the plaintiff cannot be permitted to assert that he is not a tenant but a co-sharer. The order of ejectment has been affirmed by the Financial Commissioner on 9.9.2002 vide Exhibit D.15. The revenue records reveal that Dharmshala Patti Gill is the owner of the land in dispute and plaintiff Ajmer Singh is a tenant on payment of rent as RSA No. 1623 of 2007 (3) Rs.800/- as Chakota. The learned trial Court also returned a finding that the plaintiff cannot seek partition without giving up possession as a tenant, as the tenant will have to leave possession first and then can deny the title of the landlord. The argument that Dharmshala Patti Gill has not been permitted to sue in representative capacity was negated. It has been found that an application under Order 1 Rule 8 CPC was filed and that is sufficient compliance of the procedural laws. With the said finding, the trial Court dismissed the suit. Such findings were affirmed in appeal. Learned counsel for the appellant has vehemently argued that the suit filed by Dharmshala Patti Gill was without seeking permission to sue in representative capacity under Order 1 Rule 8 CPC and, therefore, such findings are void. It was also contended that the dispute is regarding the extent of holding of the plaintiff and such title dispute cannot be decided by the revenue Courts in terms of Section 77 of the Punjab Tenancy Act, 1887 (for short `the Act'). Therefore, the orders passed by the revenue Courts, ordering ejectment of the plaintiff, are without jurisdiction and not sustainable. Section 77(3) of the Act, contemplates that the suits falling within the first, second and third group of Sub Section (3) of Section 77 of the Act, shall be instituted in and heard and determined by the revenue Courts and no other Court shall take cognizance of any dispute of the matter with respect to which any such suit might be instituted. Suits by landlord to eject a tenant falls in clause (e) falling within second group. Therefore, in terms of sub section (3) of Section 77 of the Act, the jurisdiction of other Courts, except the revenue Court, is barred. RSA No. 1623 of 2007 (4) The plaintiff has asserted his possession as that of a tenant in the proceedings before the revenue Court. He has deposed to this effect on oath as well. Therefore, the plaintiff cannot be permitted to approbate and reprobate to assert before the proceedings in the Civil Court that he is not a tenant, but a co-sharer. The stand of the plaintiff is that of a dishonest person, who has tried to misuse the process of the Court to delay and defeat the ejectment order passed by the authorities under the Act. The argument that the permission under Order 1 Rule 8 CPC was not granted, is immaterial in a challenge to the orders passed by the revenue Courts in the Civil Court. An application under Order 1 Rule 8 CPC was filed. But in the absence of any order on such application, assuming that it is so, still objection should have been raised by the plaintiff before the revenue Courts alone. The plaintiff cannot be permitted to challenge the orders before the Civil Court for the reason that prayer to sue in the representative capacity was not specifically granted. The provision of permission is a procedural, which cannot be permitted to be raised before the Civil Court after the order of eviction passed by the Collector against the plaintiff has been affirmed by the higher authority under the Act i.e. the Financial Commissioner. The other argument that the eviction orders passed by the revenue Courts are without jurisdiction is again misconceived in view of the subsequent plea raised by the plaintiff. It was the revenue Courts alone which could entertain such suit. The plaintiff cannot be permitted to raise the question of lack of jurisdiction when as per the stand raised by the plaintiff himself, he asserted him to be a tenant before the revenue Courts. Consequently, I do not find any patent illegality or material RSA No. 1623 of 2007 (5) irregularity in the finding recorded or that the finding recorded gives rise to any substantial question of law in the present second appeal. Hence, the present appeal is dismissed. (HEMANT GUPTA) JUDGE July 21, 2009 ds