G.S. Sandhawalia J.

1. Challenge in the present writ petition is to the order dated 24.09.1992 (Annexure P8) wherein respondent No.1, Financial Commissioner allowed the revision petition of private respondents No.2 & 3 and gave them the status of occupancy rights under the Punjab Tenancy Act, 1887 (for short, the 1887 Act) while dismissing the ejectment application filed by the present petitioner.

2. The legal question that arises for consideration is as to whether the Financial Commissioner had any jurisdiction to grant status of occupancy rights to respondents No.2 & 3, being a revenue Court.

3. The dispute pertains to 49 kanals 12 marlas of land, situated in Village Bazina, Tehsil & District Bhiwani, which was purchased by the petitioner on 17.09.1976. At the time of purchase, the land was in possession of Masania, predecessor-in-interest of respondents No.2 & 3. The petitioner filed an application for ejectment of Masania under Section 9(1) of the Punjab Security of Land Tenures Act, 1953 (for short, the 1953 Act) on 30.03.1981 in the Court of Assistant Collector, 1st Grade, Bhiwani on the ground that he was a small landowner and required the land in dispute for his cultivation. On the other hand, Masania filed a suit for declaration on 04.12.1981, for occupancy rights, under Section 5 & 8 of the 1887 Act. The Assistant Collector decreed the suit of Masania on 13.09.1982 and declared him to be an occupancy tenant and dismissed the ejectment application of the petitioner, vide order of even date. The petitioner filed appeal against both the orders and the Collector allowed the appeal on 21.12.1982 (Annexure P3) and set aside the judgment and decree on the ground that under Section 5 of the 1887 Act, the tenant had to prove himself to be a tenant for a period of 30 years before he could get such status and the said factum was not established since the cultivation was of the year 1953-54, which was less than the prescribed period. It has also been held that there was no agreement between the parties for non-eviction from the land in dispute. Vide order of even date, dated 21.12.1982 (Annexure P5), the appeal against the dismissal of the eviction application was allowed and the case was remanded to the Court for decision on merits.

4. Masania filed two appeals before the Commissioner which were dismissed on 21.12.1990 on the ground that since the period of 30 years cultivation was the necessary condition and since the same had not been completed, the tenant had no right to file the application. Similarly, the appeal regarding the remand of ejectment proceedings was also dismissed. Resultantly, two revision petitions were filed by respondents No.2 & 3 before the Financial Commissioner, who passed the impugned order dated 24.09.1992, on the ground that the application was filed both under Sections 5 & 8 of the 1887 Act whereas the authorities had erred in one stage or the other since the first authority treated the case only under Section 5 of the 1887 Act whereas the application was made both under Sections 5 & 8 and thus, the Collector had upset the order on this ground. It was also noticed that the Collector had held that there was no understanding between the landlord and the tenant, during the ejectment proceedings. Thus, it was clarified during arguments that the application had been moved by the vendee and not by the original landowner with whom the tenant had an implicit understanding of continuous cultivation. It was noticed that the Commissioner also had not made any reference to the application filed under Section 8 of the 1887 Act and accordingly, respondent No.1 took upon herself the task of adjudication on the issues and came to the conclusion that the tenant had been in cultivating possession of the land in question since 1953-54 at a very nominal rent and there was nothing to show on the part of the landlord that there was any effort to increase the rent, at any stage, and therefore, showed intention not to eject the tenant. The ejectment proceedings, having been moved by the vendee and not by the original landlord, was taken into consideration and accordingly, the revision petitions were allowed. Relevant portion of the order read as under:

On going through the record it is clear beyond doubt that Masania has been in cultivating possession of the land in question since 1953-54 at a very nominal rent. There is no indication that there was any effort on the part of the landowner to subsequently increase the rent at any stage. The continuous long possession and the nominal rent are indicative of an intention not to eject the tenant. So far as the ejectment proceedings connected with this case are concerned it is clear that these were moved by the vendee and not by the original landowner.

In view of the cumulative effect of all the circumstances above, I feel that this is a fit case for granting occupancy rights to the tenant under section 8 of the Punjab Tenancy Act. I, therefore, accept the revision petition No.166 of 1990-91 and set aside the orders of the Commissioner. In view of this, I also allow the connected revision petition and accordingly the ejectment application moved by the respondents fails.

5. Counsel for the petitioner, firstly, has contended that 30 years was the condition precedent to under Section 5(2) of the 1887 Act and there was nothing on record to show that when the application dated 04.12.1981 (Annexure P13) was filed, the tenant had completed those 30 years. The record only showed that possession was since 1953-54 and in the absence of any proof that the cultivation was for 30 years, the right could not be granted. Reference was made to the orders of the Collector to say that the possession was only from the year 1953-54. It was, secondly, argued that the revenue Court would have no jurisdiction, keeping in view the fact that the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 (for short, the Vesting Act of 1952) had come into force which provided for automatic vesting and extinguished the rights of the landlord. It was, thus, contended that in view of the settled position that the Civil Court had jurisdiction, respondent No.1 was in error in taking over the jurisdiction and granting the benefit to private respondents No.2 & 3.

6. Counsel for the private respondents, on the other hand, submitted that from the application filed under Sections 5 & 8 of the 1887 Act, it would be clear that there was long possession and only nominal rent was being paid and therefore, the respondents were entitled to be declared owner in view of Section 84 of the 1887 Act and merely because 30 years condition had not been proved would not be a ground to deny the occupancy rights status to the tenant. Qua the second submission, regarding lack of jurisdiction, it was submitted that under Section 100 of the 1887 Act, this Court had the power to validate proceedings held under mistake as to jurisdiction and the parties had been in litigation since 1981 and thus, it would not be in the interest of justice to relegate them to the Civil Court, now. Accordingly, it was prayed that the writ petition be dismissed.

7. After hearing counsel for the parties, this Court is of the opinion that the order passed by the Financial Commissioner is liable to be set aside. The private respondents could be granted the occupancy rights under the 1887 Act subject to fulfilling certain conditions as provided under Section 5. The revenue Courts were to decide the said lis between the landlord and tenant. Regarding the claim to the right of occupancy by the tenant, it was for the landlord to prove that the tenant had no such right under Section 77 of the 1887 Act. Admittedly, the Vesting Act of 1952 came into force from 15.06.1952 and gave certain absolute rights to the tenants who were in occupation and it extinguished the rights of the landlords. As per the provisions of the Tenancy Act, 1887, the jurisdiction lay with the Collector and the Assistant Collector, 1st Grade was ordered by the State Government to perform the duties of Collector. Section 10 of the Vesting Act of 1952 further provided that every award or order, to be passed by the Collector or Commissioner or Financial Commissioner, would be final and could not be questioned before any officer or any authority. A Division Bench of this Court in Amin Lal Vs. Financial Commissioner (Revenue) & others 1972 PLR 96 held that only Civil Courts would have jurisdiction to decide such suits whereby the declaration of ownership was claimed and any provision of law which takes away the jurisdiction of the Civil Court have to be strictly construed. Accordingly, it was held that Section 77(3)(d) of the Tenancy Act takes out the jurisdiction only if the suit is instituted to claim the right of occupancy and a right of title is not to be decided on the occupancy right which determination is only to substantiate the plea of the ownership. Accordingly, it was held that after coming into force of the Vesting Act of 1952, Civil Court would have jurisdiction. The relevant paragraphs of the judgment read as under:

7. We are afraid there is no substance in any one of the aforesaid contentions advanced on behalf of the respondents. The sum and substance of the suits filed before the Civil Court was to get determination of the question whether the respondents who were plaintiffs there had become owners of the suit land. There can be no manner of doubt that decision on such a question relates to title and was within the cognisance of a Civil Court. It may be that in order to decide title it becomes necessary to examine the conditions prescribed by the Vesting of Proprietary Rights Act and see whether they stood fulfilled or not since ownership depended on fulfilment of those conditions. A Civil Court has jurisdiction to try all suits of a civil nature unless its jurisdiction with regard to a particular type of a suit is expressly or impliedly barred. A suit in which the right to property is to be decided is beyond doubt a suit within the cognisance of a Civil Court. A provision of law which takes away such a jurisdiction has to be strictly construed. Section 77(3)(d) of the Tenancy Act takes out of the jurisdiction of a Civil Court only in that suit which is instituted to establish a claim to a right of occupancy and not where title to property is to be decided on the determination of occupancy rights which determination was only to substantiate the plea of ownership. After the coming into force of the Vesting of Proprietary Rights Act, occupancy rights had ceased to exist and all of them were automatically converted into statutory ownership. As a matter of fact, after the appointed day as given in the said Act, no occupancy rights whether at present or in future could continue giving rise to any occasion for independently establishing a claim to those rights except that proof of such rights may sometime be necessary to prove ownership. "Appointed day" as defined in section 2(a) means

"(i) in relation to any tenant who, immediately before the commencement of this Act, is recorded as an occupancy tenant of any land in the revenue records, the 15th day of June, 1952;

(ii) in relation to any tenant who obtain a right of occupancy in any land after the commencement of this Act the date on which he obtains such right of occupancy."

The expression "occupancy tenant" includes two types of such tenants, namely (i) those who were recorded as such in the revenue records immediately before the Act came into force, and (2) those who after the commencement of the Act obtain a right of occupancy in respect of the land held by them in the manner stated therein. Appointed day for those falling in the first category was the 15th June, 1952, and for those obtaining a right of occupancy after that day is the date on which such rights are obtained. Section 3 of the Vesting of Proprietary Rights Act has the effect of extinguishing all rights, title and interest of the landlord on the appointed day and this extinguishment of rights takes effect in both the categories. The result, therefore, is that even if an occupancy right is obtained after the coming into force of the Vesting of Proprietary Rights Act, there is simultaneous extinguishment of that right and conversion of the same into ownership. When occupancy rights have ceased to exist and statutory ownership created in lieu thereof, a suit for declaration of occupancy rights would be wholly meaningless. No tenant claiming to hold occupancy rights on the commencement of the Vesting of Proprietary Rights Act would go to Court and seek a declaration of those rights when after the operation that had started on 15th June, 1952, he was no longer holding that status and had become the owner. It is difficult to understand how the learned counsel can reasonably urge that the prayer for declaration of title was only surplusage and the real prayer in the civil suits was for a declaration of occupancy rights. In this connection he cited a single Bench judgment of Delhi High Court reported as Raghbir Singh v. Beli Ram, 1967 P.L.R. 396. The facts of that case are distinguishable and if it is to be construed as laying down that the relief prayed for in such a case is for a declaration of occupancy rights and that declaration of ownership is mere surplusage, we, with all respect to the learned Judge, do not find ourselves in agreement with him. The plaintiffs in that case were in occupation of certain agricultural land as tenants when consolidation proceedings took place in the village. They continue to hold cultivating possession after the consolidation but of a lesser area. The claim set up by them was that they were occupancy tenants whereas the plea of the landlords was that they were tenants at will. The dispute was taken to the Civil Court by the tenants who wanted declaration of title of ownership under the Vesting of Proprietary Rights Act on the ground that they were occupancy tenants. It was in these circumstances that the learned Judge took the view that real controversy between the landlords and the tenants was about the nature of the tenancy and the suit lay in a Revenue Court.

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12. Shamsher Bahadur J. following another Full Bench judgment of the Lahore High Court reported as Baru v. Niadar, A.I.R. 1942 Lahore 217, held in Tek Singh v. Bur Singh and Ors. 1961 P.L.J. 64, that Section 77(3)(d) of the Tenancy Act applies only when the nature of tenancy alone is in dispute. The crux of the whole matter thus is that what is to be seen is the real nature of the controversy between the parties. In the instant case, occupancy rights had extinguished on 15th June, 1952, and the plaintiff wanted a declaration in a suit filed 7-8 years thereafter that they had become owners. The relief that the plaintiffs wanted in the Civil Court was not to get a declaration of a status as occupancy tenants but to be declared as owners. The Civil Court had, therefore, in the circumstances of this case, jurisdiction to decide as to whether the plaintiffs were proved to be occupancy tenant or not so as to be declared statutory owners. Revenue Courts cannot consequently proceed with the suits instituted with regard to the same matter has already been finally adjudicated upon by competent Civil Court."

8. The said view was approved by the Full Bench of this Court in Shiv Charan Vs. Financial Commissioner, Haryana & others 2004(3) PLR 569 and two Single Bench judgments of this Court were overruled which took a contrary view. Relevant observations read as under:

8. We are, however, of the opinion that this very issue had been raised before and repelled by the Division Bench in Amin Lals case. The Bench noticed that expression "Occupancy tenant" included two types of occupancy tenants, namely, (i) those who were recorded as such in the revenue record immediately before the commencement of the Act and (ii) those, whose rights as occupancy tenants could be established by other evidence. The Court observed that after the coming into force of the Vesting Act, what was required was in fact a declaration of title based on the fact as to whether a person claiming a right of occupancy had in fact become the owner, though for arriving at this conclusion, it would often be necessary for the Court to examine the conditions prescribed by the Vesting Act, and to determine as to whether they had been fulfilled. The Court further observed that after the coming into force of the Vesting Act, there was a simultaneous extinguishment of the rights of Occupancy and conversion of the same into ownership and as such a declaration of title could be given only by the Civil Court. It was accordingly concluded as under:-

"A Civil Court has jurisdiction to try all suits of a civil nature unless its jurisdiction with regard to a particular type of a suit is expressly or implied barred. A suit in which the right to property is to be decided is beyond doubt a suit within the cognizance of a Civil Court. A provision of law which takes away such a jurisdiction has to be strictly construed. Section 77(3)(d) of the Tenancy Act takes out of the jurisdiction of a Civil Court only that suit which is instituted to establish a claim to a right of occupancy and not where title to property is to be decided on the determination of occupancy rights which determination was only to substantiate the plea of ownership. After the coming into force of the Vesting of Proprietary Rights Act, occupancy rights had ceased to exist and all of them were automatically converted into statutory ownership."

9. We are also of the opinion that the reliance of the learned counsel on Omkar Singhs and Jiwans cases (supra) is misplaced. As already mentioned above, the learned Single Judge in Omkars case merely noticed the judgment of this Court in Amin Lals case and did not even remotely discuss the issues involved therein. In Jiwans case, no reference was made to Amin Lals case by the learned Single Judge through primary reliance was placed on Raghbir Singh v. Beli Ram, 6 (1967)69 P.L.R. (Delhi Section) 396 to hold that a revenue Court alone could go into the dispute. We, however, find from perusal of the judgment in Amin Lals case that the Division Bench had differed with the ratio of the judgment in Raghbir Singhs case (supra) by observing that "We, with all respect to the learned Judge did not find ourselves in agreement with him." We are, therefore, of the opinion that the judgment of the Single Bench in Puran Lal Aggarwals case (supra) relying on the decision of Amin Lals case (supra) lays down the correct law. It has accordingly to be held that after the coming into force of the Vesting Act, the Civil Court alone would have the jurisdiction to determine the dispute envisaged in Section 77(3)(d) of the Act and the jurisdiction of the revenue Court would be barred. The judgments of the Single Bench in Omkar Singh and Jiwans cases (supra) and any other case likewise are over-ruled.

10. To our mind, therefore, a civil suit would lie with respect to both the categories of occupancy tenants envisaged in Section 2(f) of the Vesting Act.

9. Thus, it is apparent that the jurisdiction issue, which goes to the root of the matter, is a matter to be adjudicated upon by the Civil Court and the revenue Court had no jurisdiction when the proceedings were initiated in 1981 and rather the position had been crystallised by the Division Bench of this Court in Amin Lals case (supra). Thus, the Financial Commissioner was not justified in allowing the revision petition of respondents No.2 & 3, under the provisions of the Tenancy Act, 1887, being a revenue Court.

10. Argument of the counsel for private respondents No.2 & 3 that the proceedings were to be given a stamp of approval under Section 100 of the 1887 Act, thus, would have no legs to stand on as it was not a case where the law had been fluctuating at the time when the petition for occupancy rights had been filed. Rather, for over a decade, the Division Bench judgment was already in force when the petitions were initiated by respondents No.2 & 3. The submission that under Section 100(3) of the 1887 Act, the proceedings can be validated, was considered in Puran Lal Aggarwal Vs. Financial Commissioner, Haryana 1992 (2) PLR 669 [LQ/PunjHC/1992/234] which view was approved by the Full Bench. A similar submission regarding the fact that recourse should be taken under Section 100 of the 1887 Act was rejected on the ground that once the matter had been decided by the revenue Courts and it went to the root of the matter, the said validation could not be done. Reference was also made to the observations made in the case of Amin Lal (supra) to hold that validation was only done in that case since the decrees had been passed by the Civil Court, initially, in view of sub-section (3) of Section 100 of the 1887 Act. Relevant portion of the judgment reads as under:

7. The last argument raised by Mr. Jain on behalf of the respondents is that this Court should take recourse to Section 100 subsection (3) of the Act, and not interfere in the concurrent findings of fact accorded by the revenue Court. He has urged on the basis of Amin Chands case (supra) that this Court should direct that the decree of the revenue Courts be made enforceable between the parties. This. argument, too, is also of no avail.

Section 100 sub-section (3) which was referred to by the learned counsel, is reproduced below : -

"100. Power of High Court to validate proceedings held under mistake as to jurisdiction.-In either of the following cases, namely :-

xx xx xx

xx xx xx

(3) If it appears to the High Court, otherwise than on submission of a record, under subsection (1) that a civil Court under its control has determined a suit of a class mentioned in Section 77 which under the provisions of that section should have been heard and determined by a revenue court, the High Court may pass any order which it might have passed if the record had been submitted to it under that sub section".

The sine qua non for the exercise of power of the High Court under the aforesaid section, as would be apparent, is that the civil Court should have passed the decree which is under challenge. That was so in Amin Lais case (supra) However, in the cases before me, the matter has been decided by the revenue courts and, as such, the aforesaid section can have no applicability.

11. Accordingly, the last submission of the counsel for the private respondents, also, cannot be accepted. The order passed by the Financial Commissioner on the first ground was also not sustainable regarding the condition precedent to 30 years of cultivating possession under Section 5(2) of the 1887 Act, in view of the factual aspect that the application under Section 5, which was only filed on 04.12.1981 and nothing could be brought on record prior to the year 1953-54 to record the finding that the private respondents No.2 & 3 were entitled for their occupancy rights. It as an exercise which, on the contrary, should have been conducted by the authorities below, after looking into the record and evidence and not to be gone into by respondent No.1, in revision.

12. Thus, in view of the fact that the Revenue Courts has no jurisdiction to decide the issue of the right of occupancy tenant under the Vesting Act of 1952 and only the Civil Court has jurisdiction to adjudicate, hence, impugned order passed by the Financial Commissioner is set aside. The private respondents are free to approach the competent Court for adjudication of their rights. The eviction application of the petitioner is remanded to the Assistant Collector, 1st Grade, Bhiwani.

13. With the above observations, writ petition stands allowed and the order dated 24.09.1992 (Annexure P8), passed by respondent No.1, is quashed. 18.12.2013