1. ' MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court is directed; against the dismissal by the High Court of appellants/defendants' Civil Revision which had arisen out of a land tenancy matter. The facts and circumstances as also the points noted for grant of leave to appeal are that the appellants purchased the suit land from one Muhammad Aslam vide Mutation No,428 attested on 11-4-1970. The respondents claimed that they were the tenants-at-will and remained in possession for long since the time of their ancestors. The appellants entered into possession of the land in dispute in 1974 and a complaint under section 447/379/34, P.P.0 was lodged by the respondents in the Court of a Magistrate which was dismissed on 9-3-1976. The respondents filed a civil suit under section 9 of the Specific Relief Act for possession of the said land before the Senior Civil Judge who vide his order dated 25-7-1977 dismissed the same on the ground of limitation and for want of jurisdiction. Civil Appeal of the respondents before the District Judge was allowed on 3- 4-1978, accepting the contention of their counsel that in the circumstances plaint should have been returned for presentation in the proper Court without deciding the point of limitation. The point of jurisdiction was not questioned in the said order.
2. ' The respondents then filed a suit in the Civil Court instead of Revenue Court. The same was returned to them again vide order dated 20-10-1981; against which, they again preferred appeal before the District Judge. He vide his judgment dated 14-4-1983 accepted the appeal and granted a decree for possession to the plaintiffs/respondents herein. The appellants filed civil revision against the said order of the District Judge which concluded on difference of opinion of the learned Judges of a Division Bench of the High Court. The matter was referred to another learned Judge, who vide impugned judgment dismissed the civil revision of the appellants.
3. ' It was urged that there is no case where a tenant-at-will had filed a suit against his dispossession or ejectment in the Civil Court or Revenue Court and that an authoritative pronouncement by this Court was necessary.
4. ' It is not necessary to go into the question: whether there has been a case of this nature or not because after 1950 with the commencement of the preliminary Land Reforms in the field of landlord and tenant's relationship, there has been considerable litigation. The historical progress of law on this subject has been noted in Lucas alias Luci and others vs. S.M. Nasim, Member (Revenue), Board of Revenue Punjab, Lahore and another (PLD 1984 Supreme Court 227).
5. ' The relevant provisions of the N.W.F.P. Tenancy Act 1950 are reproduced below:
28. Ejectment of certain tenants by notice. -(1) On receiving the application of the landlord in any such case as is mentioned in clause (b) of Section 25, the Revenue Officer shall, if the application is in order and not open to objection on the face of it, cause a notice of ejectment to be served on the tenant.
(2) A notice under sub-section (1) shall not be served after the fifteenth day of November in any agricultural year.
(3) No notice under sub-section (1) shall be served on the tenant if the application of the landlord is opposed to the provisions of section 24.
(4) The notice shall specify the name of the landlord on whose application it is issued, and describe the land to which it relates and shall inform the tenant that he must vacate the land before the first day of May next following, or that, if he intends to contest his liability to ejectment, he must institute a suit for that purpose in a Revenue Court within two months from the date of the service of the notice.
(5) The notice shall also inform the tenant that if he does not intend to contest his liability to be ejected and he has any claim for compensation on ejectment he should, within two months from the date of the service of the notice, prefer his claim to the Revenue Officer having authority under the next following subsection to order his ejectment in the circumstances described in that sub- section.
(6) If within two months from the date of the service of the notice the tenant does not institute a suit to contest his liability to be ejected a Revenue Officer, on the application of the landlord, shall subject to the provisions of this Act with respect to the payment of compensation, order the ejectment of the tenant: ' Provided that the Revenue Officer shall not make the order until he is satisfied that the notice was duly served on the tenant.
(7) If within those two months the tenant institutes a suit to contest his liability to be ejected and fails in the suit, the Court by which the suit is determined shall by its decree direct the ejectment of the tenant.
33. Relief for wrongful dispossession or ejectment. --In either of the following cases, namely:-
(a) if a tenant has been dispossessed without his consent of his tenancy or any part thereof otherwise than in execution of a decree or than in pursuance of any order under section 27 or section 28;
(b) if a tenant who, not having instituted a suit under section 28 has been ejected from his tenancy or any part thereof in pursuance of an order under that section denies his liability to be ejected, the tenant may, within one year from the date of his dispossession or ejectment, institute a suit for recovery of possession or for compensation or for both.
6. ' Revenue Court under section 28, subsection (7) or whose suit has been dismissed under section 33, may institute a suit in a Civil Court to contest his liability to ejectment or to recover possession or to recover compensation.
35. Bar of relief by suit under section 9. (Act I of 1877) .--Possession of a tenancy or of any land comprised in a tenancy shall not be recoverable under section 9 of the Specific Relief Act, 1877, by a tenant dispossessed thereof.
7. ' Sections 8 and 9 of the Specific Relief Act have also direct bearing. They read as follows:- "8. A person entitled to the possession of specific immovable property may recover it in the manner prescribed by the Code of Civil Procedure.
9. If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
8. ' Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.
9. ' No suit under this section shall be brought against the Federal Government or any Provincial Government.
10. ' No appeal shall lie from any order or decree passed in any suit instituted under this section nor shall any review of any such order or decree be allowed."
11. ' Learned counsel for the appellants has raised a very vital question: as to whether, a suit by a holder of possessory title as a tenant-at-will can at all succeed in law against a person with better title--in this case the landlords. The answer according to him in the settled law is that: a holder of possessory title can successfully maintain suit for possession against all except a person with better title; and because in this case, according to him, admittedly the appellants are landlords and the respondents were tenants-at-will at the relevant time, the latter could not have maintained a suit for possession against the appellants. To be fair to the learned counsel, he stated that if at all a suit may have been maintainable under section 9 of the Specific Relief Act against dispossession; however, not only there are stringent conditions for the success of such a suit, but also in case of tenants seeking possession after dispossession, civil suits are specifically barred; both in the North-West Frontier Province from where this case has arisen and also in the Punjab. He rightly placed reliance in this behalf on Section 35 of the N.-W.F.P. Tenancy Act, 1950 and section 51 of the Punjab Tenancy Act, 1887. That being so, learned counsel further stated that a suit by the tenant under section 8 of the Specific Relief Act could not be maintained because of the principle relied upon by the learned counsel. In support of the proposition that a tenant cannot maintain suit for recovering of possession against his landlord if he does not claim to be the owner of land, he has relied on Ismail Ariff vs. Mahomed Ghouse (XX Indian Appeals 99) and Mussammat Sundar vs. Mussammat Parbati (XVI Indian Appeals 186). An indirect support for the same proposition, the learned counsel could seek from Karam Ali and others v. Raja and others (PLD 1955 Federal Court 35).
12. ' In so far as the declaration of law in the three judgments noticed above is concerned, with respect it has to be pointed out that this was the position before the introduction of the Land Reforms, vis- a-vis, relationship of landlord and tenant in Pakistan. These reforms introduced such weighty elements both for the protection of the landlords as well as the tenant that in the changed context of the statutory law on the subject, it would not be possible to rely upon the judgments cited by the learned counsel. However, one sentence in the case of Ismail Ariff decided by the Privy Council can, in a modified form, be further examined so as to determine the real position in the present context of the relevant law. It was observed that under section 9 of the Specific Relief Act if the plaintiff had been dispossessed otherwise than in due course of law he could by a suit instituted within six months from the date of dispossession have recovered possession notwithstanding any other title that might be set up in such suit. If he could thus recover possession from a person who might be able to prove a title it is certainly right and just that he should be believed against a person who has no title and is a mere wrong-doer, to obtain a declaration of title as owner and an injunction to restrain the wrongdoer from interfering with his possession.
13. It is true that their lordships have held so. However, on principle it can be held that if a landlord has title but he is a wrongdoer in so far as the present state of law protecting a tenant is concerned, the tenant would be justified to maintain a suit seeking injunction, to borrow the remarks used in the case of Ismail Tariff "to restrain the wrong-doer from interfering with his possession". Some further vital questions arise without resolving which it would not be possible to decide this appeal. Firstly, is a landlord who is admittedly the owner a wrong-doer, if he tries to dispossess or has dispossessed wrongfully his tenant in contravention of clear protective laws, vis-a-vis, the tenant's possession.
14. The answer would be in the affirmative if the pronouncements of this Court in the case of Lucas are kept in mind. Learned counsel for the appellants did not contest the position that under the laws examined in the said judgment; namely, the laws relating to protection and restoration of tenancy rights and the Land Reforms (Martial Law) regulation 115 (Para 25) the position as assumed above of a tenant, vis-a-vis, his landlord, would be correct. Thus the old law where under a tenant had practically no protection nor any enforceable right against a landlord who decided to evict him has undergone-a change. The tenants have enforceable rights against their landlords to protect their tenancy rights through Courts. So was held in the case of Lucas. Thus the possession of a tenant and his seeking to retrieve it against a person having title has totally different connotation as compared to the possession of any other type particularly of a trespasser. Thus the cases decided prior to 1950 have by now lost much significance. As the Punjab Law is not much different, from the N.-W.F.P. Law on the subject in question, therefore, the cited judgments in the cases; namely, Mehar Khan v. Atta Muhammad Shah (AIR 1935 Lah. 719), Ujagar singh and another v. Gora and others (AIR 1938 Lah. 82) and Ilam Din and another v. Mangal Singh and others (AIR 1941 Lah.
15. 189) would in the present context lose much relevance. It may be clarified that section 50(a) of the Punjab Tenancy Act 1887, which was interpreted in Karam Ali's case was introduced in the Punjab Act, 1929.
16. The same question which has generally been commented upon and decided above, can be and has to be dealt; with particular reference to, the relevant provisions of the law earlier reproduced. A tenant even after the land reforms admittedly cannot file a suit for recovery of possession under section 9 of the Specific Relief Act because of a clear bar in section 35 of the N.-W.F.P. Act (Section 51 of the Punjab Act). There is rationale for it because special remedy similar to the one provided in section 9 has been provided in Section 33 (Section 50 of the Punjab Act). However, there is very important visible difference between the two provisions - one in the Specific Relief Act and the other in the tenancy law, namely, that a tenant if he files a suit under section 33 for recovery of possession or for compensation or for both, he will for all practical purposes, vis-a-vis, his right to possess as a tenant, exhaust all his grounds when seeking remedy under section 33 while a plaintiff in a suit under section 9 would not exhaust all his pleas, the plea regarding title would still be available to him even if the suit under section 9 is dismissed, withdrawn or abandoned because he could still file a suit under section 8 amongst others on the basis of title. This supposition is fully supported by the provisions contained in section 34 (Section 50-A of the Punjab Law). It reads, "no person whose ejectment has been ordered by a Revenue Court under section 28, sub-section (7)
17. (Section 45 (6) of the Punjab Act) or whose suit has been dismissed under section 33 (Section 50 of the Punjab Act), may institute a suit in a Civil Court to contest his liability to ejectment or to recover possession (or occupancy rights in the Punjab Act) or to recover compensation". This provision creates a positive bar to the filing of a civil suit by a person who has lost his suit filed under section
33. The obvious reason being that the trial of issues relating to possessory rights in a suit under section 33 would practically exhaust all the pleas of a tenant who wants to contest his liability to ejectment or seeks to recover possession or to recover compensation. Similarly a person whose ejectment has been ordered by the Revenue Court under section 28 (Section 45 of the Punjab Act) would be barred from agitating same questions before the Civil Court and thus therefore the bar contained in section 34. This bar is not a general bar. It is confined to limited and specified situations. If those conditions are satisfied a suit by the tenant in the Civil Court would be completely barred. On the other hand if and until the conditions specified in section 34 are not satisfied there will be no bar to the filing of the civil suit by the tenant. Applying this interpretation and rule to the present case it is an admitted position that the respondents were not ejected in a lawful manner through an order of Revenue Court. It is also an admitted position that the respondents' earlier suit was not under section 33 of the Tenancy Act nor was it before a Revenue Court. It was before a Civil Court and was filed under section 9 of the Specific Relief Act.
18. ' There is a third aspect of the present case; namely, if not barred on general principles or substantive law as contended by the learned counsel in the first instance nor by the special law contained in the N.-W.F.P. Tenancy Act, 1950, whether the second suit filed by the respondents was barred by application of section 11 of the C.P.C; or on the application of principle of res judicata. The learned referee Judge and another Judge of the High Court with whom he agreed have elaborately dealt with this question and have held that res judicata has no application. The following observations in the impugned judgment in this behalf are unexceptionable: "The wording of section 9 itself and the summary nature of the inquiry and the type of decree to be passed in a suit under section 9 will show that such a decree cannot operate as res judicata on a question of title. It is provided in the Section that nothing herein shall bar any person from suing to establish his title to such property and to recover possession thereof. It further provides that no appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. In view of these provisions, after the dismissal of their suit under section 9 it was legally open to the plaintiffs to institute a regular suit on the basis of their possessory title which they did by filing the present suit bearing No,196/I on 29-4-1978. The plaint was, however, returned to the plaintiffs by the trial Court on 20-10-1981 for the reason that in spite of the direction by the Appellate Court in the former suit, the plaintiffs instead of seeking the relief before the Revenue Court had again instituted the present suit. It was also held that since the suit was tribal by a Revenue Court, it could not be taken cognizance of by the Civil Court. No finding was, however, given on the question of res judicata and issue No,3 was answered against the defendants for lack of proof. On appeal filed by the plaintiffs the learned District Judge reversed the finding of the trial Court on the question of jurisdiction and held that the suit of the present type was triable by the Civil Court as the plaintiffs had failed to move the Revenue Court within a period of one year for restoration of possession, they would not be debarred from seeking relief from the Civil Court. On the question of res judicata the Appellate Court found that in the first round of litigation the trial Court by relying on sections 33 and 35 of the N.-W.F.P. Tenancy Act, came to the conclusion that the Civil Court had no jurisdiction in a suit filed under section 9 of the Specific Relief Act. The Appellate Court, therefore, held this suit as not barred by the principle of res judicata by observing that "the perusal of the previous judgment would reveal that jurisdiction of the Civil Court was challenged with reference to section 33 of the N.-W.F.P. Tenancy Act. In other words the stand of respondents was that the appellants being tenants could not avail remedy under section 9 of the Specific Relief Act and they could move the Revenue Court. The revenue record fully supports the plea of the appellants that they were tenants of the suit land". Taking this view of the matter, the plaintiffs' appeal was accepted and a decree for possession of the suit land was granted in favour of the plaintiffs vide judgment dated 14-4-1983 which is impugned in this revision".
19. The afore expressed view in addition to the other grounds mentioned in the judgments of the two learned Judges is unexceptionable. We uphold the decision of the High Court in this behalf.
20. Accordingly, the present suit filed by the respondents was not barred by res judicata.
21. ' It might be clarified that the use of the expression "on a question of title" in the first sentence of the aforereproduced part of the impugned judgment should be read in the case of a tenant under the present legal dispensation to mean not a title to the ownership in the land but only right to the possession of the land on the basis of the protective legislation, vis-a-vis, tenants reference to which has been made in detail in the case of Lucas. Another expression used by the learned Judge; namely, "possessory title" should also be understood in the same or similar context.
22. Lastly, learned counsel tried to support the appellants' case by contending that there was no decision on merits of the plea raised by the appellants that the respondents having voluntarily surrendered possession, could not have recovered the same nor were they entitled to compensation. We do not agree with him. Apart from the omission from the appellants' pleading of a specific plea in this behalf, we noticed that their plea was one of denial of tenancy and the respondents were put to the proof thereof. It is in this context that learned lower Courts as well as the High Court assumed that the appellants' case in this behalf stood clearly contradicted by the Revenue record as well as by circumstantial evidence. We after hearing the learned counsel on this aspect also at some length, are satisfied that the respondents were not only the tenants-at-will under the appellants but also had been wrongly dispossessed in contravention of the protective laws applicable to the case.
23. 'Before closing this judgment we note a general point which also came under consideration: whether, it would be appropriate now after so many years to permit the induction of the Tenants who do not claim to have any other right other than that of tenancy-at-will and further that would it not be proper to maintain the status quo.
24. ' After a healthy discussion on this question, vis-a-vis, the rights of the deprived classes as against the better sectors of society, it would be in the interest of justice and fairplay as also in the interest of amity and goodwill and above all in the spirit of Islam that the appellants should welcome their tenants and embrace them on their return, with open arms. Let this experiment be done. Learned counsel for the appellants who has a vast experience as a judicial officer as a Judge of the supperior Court and now as a lawyer may assist the afore indicated process. When the tenants return and are welcomed by the appellants it will be the former's turn to show their complete faithfullness and not only perform their duties under the relevant laws honestly but also make their landlords happy by their positive conduct towards their own brethren in faith if they do not have any other relationship. If he succeeds he should submit a report to this Court so that it may be helpful in the other cases as well.
25. ' With these remarks this appeal is dismissed but on account of very important questions of law involved, we leave the parties to bear their own costs.