1. ' This is a plaintiffs' revision petition in a civil suit for possession filed against the defendants. Suit was dismissed by the trial Court on 10-11-1986. An appeal filed against the judgment and decree of the trial Court failed in the Court of Additional District Judge on 17-6-1989. Though the suit was tried on number of issues in the trial Court and the appeal heard on those issues in the Court below, yet at the hearing, only issue alive for consideration is about the jurisdiction of the Civil Court. Question posed for consideration of the Court is whether upon averments in the plaint and defence taken to it, suit is cognizable by a Civil Court on is triable by a Revenue Court in its exclusive jurisdiction under section 77(e) of Punjab Tenancy Act, 1887 as unanimously held by the Courts below.
2. ' Plaintiffs claimed ownership of land measuring 12 kanals 15 marlas in khasra No,734, situate in revenue estate of Gorsi, Tehsil and District Rawalpindi. They stated that the defendants were in its unauthorised possession eversince October, 1971. On the basis of their ownership rights, they laid claim to actual possession of the land in dispute. On the above allegations, plaintiffs brought a civil suit against the defendants on 22-3-1979, in the civil Court at Rawalpindi.
3. ' Defendants contested the suit. Amongst other pleas, it was averred that they held the land in their own right since the year 1930, and, in the alternative claimed acquisition of prescriptive title to it on the basis of long adverse possession. The trial Court put the parties to proof of contentious issues and after taking necessary evidence from them which comprised oral as well as documentary evidence, dismissed the suit by holding that since the defendants possessed the land as tenants, Civil Court had no jurisdiction to entertain and try the suit. In appeal, Additional District Judge held similarly.
4. Upon hearing learned counsel for the parties and examination of the original records, it is manifest that the Courts below not only misapplied the law but failed to understand it correctly and because of their omission to apply the correct law to the facts placed before them, plaintiffs suffered deprivation of usufructs of their land for a little less than twelve yeaRs, Plaintiffs' ownership of the land is admitted. Defence pleas including that of adverse possession and time-bar are abandoned at the hearing. Only point taken in opposition is that the defendants occupied the land in dispute as tenants, and, therefore the Courts below rightly found that the jurisdiction of the Civil Court to entertain the suit was excluded. I do not think even for a moment that a wide departure from the stance earlier taken up in the written statement and sought to be established at the trial by the defendants could be of any material help to them at this stage of proceedings because they could not be allowed to approbate and reprobate to suit their changing convenience. As I have said, plaintiffs based their suit for possession on their ownership of the land and the defendants were described by them as squatting on their land. In opposition, defendants claimed ownership of the land, and, in the alternative title to it on the basis of adverse possession. At no stage of the trial, defendants asserted their permissive possession as non-occupancy tenants of the land holding under the plaintiffs. On the contrary, they fought tooth and nail for a title to the land in their own right. Revenue record depicted plaintiffs' ownership of the land and defendants were shown in it as non-occupancy tenants without payment of any rent to the recorded owneRs, Rent column noted a dot (.) which connoted that there was a dispute about rent. It is correct that plaintiffs gave oral evidence that defendants initially occupied the land as non-occupancy tenants and paid them due share of Batai but in the year 1971 refused to pay rent and, thenceforth were in unauthorised possession, yet a cumulative reading of record i.e, the plaint, written statement and the evidence led at the trial would demonstrate that it was a suit which required decision of a title dispute between rival contenders and was clearly triable by a civil Court. In taking this view, I am firmly supported by observations in Sarwar Shah and others v. Kalu PLD 1959 (W.P.) Pesh.
112. Relevant portion (at page 114) reads:-- "Under section 9 of the Code of Civil Procedure, the Civil Courts have jurisdiction to try all suits of a civil nature, excepting such suits of which their cognizance is either expressly or impliedly barred.
5. Section 77 of the Punjab Tenancy Act which trenches on the usual jurisdiction of a Civil Court must be very strictly construed. Under section 77(e), the only suits which are exclusively triable by the Revenue Court are those which are instituted by a landlord to eject a tenant. Where a person enters as a tenant-at-will, but later on refuses to vacate the property when called upon to do so, and sets up an adverse title to the landlord, there is a question of title involved in the case. In the case though defendant had originally entered into the land as a tenant of the plaintiff, he had repudiated that relationship, and hence he was simply in wrongful possession of the land. In such cases, the suit would lie in the Civil Court. I am afraid section 77(e) only operates where a landlord brings a suit against another person, alleging him to be his tenant, but no sooner he alleges that the tenant by his own conduct has rendered himself to be a trespasser then the jurisdiction of the Revenue Court to hear such a suit is completely ousted. In this connection with all respect I differ from the view expressed by Plowden, J. In the authority quoted above. A difference' must always be made where the plaintiff alleges in the plaint that a certain person entered into possession of a property as a tenant and was holding over, and where the allegation is that the person entered into possession of the property as a tenant, but then sets up an hostile title to the landlord. I fail to appreciate Plowden, J's reasoning in treating the second suit as the same thing as the former."
6. ' Similar views were expressed in Feroze Din and others v. Hashmat Ali (deceased represented by Rehmat Ali etc.) and others PLD 1963 (W.P.) Lah. 283, Allah Ditta and another v. Muhammad Ali and 10 others PLD 1975 Lah.
429. By denial of plaintiffs' title and setting up a hostile title in them, defendants incurred forfeiture of tenancy rights and became trespassers on the land in dispute. Therefore, a suit seeking relief of possession of the land by its owners from trespassers was triable only by a Civil Court and not by a Revenue Court possessed of limited jurisdiction over specified matters only. In this view of the matter, the Courts below grievously erred to hold that jurisdiction of the Civil Court was ousted. It was clearly an untenable view which ran contrary to weight of authority some of which I have referred to in the earlier paragraph. Observations on question of jurisdiction in Muhammad and others v. Allah Ditta and others AIR 1934 Lah. 53 do not seem to have been followed subsequently and in view of clear expressions in subsequent case-law cannot be taken as a binding rule. Upon proof of clear title, the plaintiffs were entitled to the relief of actual possession of the land in dispute.
7. ' Before closing, I must advert to another point and that is, whether the plaintiffs were entitled to mesne profits accruing from the land. Plaintiffs filed a suit for possession as far back as 1979. They did not claim mesne profits in the plaint but it is agreed that eversince the year 1979 and even before, defendants had not shared the usufructs of the land with them. In Ranghu Mahton v. Bulak Mahton and others AIR 1953 Pat. 289, it has been ruled that mesne profits are allowable even under general head of relief by the Court. Plaintiffs' title being beyond dispute and their deprivation clear, in fairness, they are entitled to a relief of mesne profits from the date of decision by the trial Court when they were adjudged owners of the land and entitled to its possession. Mesne profits shall be ascertained by the trial Court and be part of its judgment and decree.
8. ' For the foregoing discussion, civil revision is allowed. Impugned judgments and decrees of the Courts below are set aside and plaintiffs' suit for possession of the land in dispute with mesne profits as indicated above is decreed with costs.