ZIA MAHMOOD MIRZA, J. ---Respondents Nos.8 to 13 filed a declaratory suit to the effect that they were in occupation of the suit land as owners; the defendants, the petitioners herein had abandoned their occupancy rights and the entries in the revenue record to the contrary were liable to be corrected. It was alleged by the plaintiffs that the suit land was owned by them and the petitioners had fraudulently manoeuvred the sanctioning of mutation on 16-1-1970 as a result whereof their names were incorporated in the revenue record as owners in terms of section 114 of the Punjab Tenancy Act. The suit was contested by the petitioners contending that they were the occupancy tenants of the suit land and have become owners thereof by virtue of section 114 of Punjab Tenancy Act. They also took an objection that the Civil Court had no jurisdiction to try the suit.
2. The suit was decreed by the trial Court vide judgment dated 15-1-1975. Petitioners preferred an appeal which was allowed by the learned Additional District Judge vide order dated 23-4-1983 holding that Civil Court had no jurisdiction to try the suit. It was accordingly. Directed that the plaint be returned to the plaintiff for its presentation to the proper Court, i.e., the Revenue Court. It appears that during the pendency of the appeal before the Additional District Judge, respondents Nos.1 to 5 had purchased part of the suit land from respondents Nos.8 to 11 and 13. Similarly, some area was purchased by respondents Nos.6 & 7 from respondent No. 12. Respondents Nos. I to 7, who had purchased the suit land were aggrieved of the order of the Additional District Judge. They, therefore, challenged it in an appeal filed in the Lahore High Court, Multan. The learned Judge in the High Court who heard this appeal held that "admittedly, at the the of institution of the suit, relationship of landlord and tenant did not subsist. Bar of section 77(3) second group, clause (d) of Punjab Tenancy Act (XVI of 1887) can be invoked only if such a relationship was admitted in the plaint and only dispute was whether the relationship was of occupancy tenant or non-occupancy tenant". Taking this view of the matter, learned Judge came to the conclusion that the suit was cognizable by the Civil Court and directed that the decree of the civil Court stands restored.
Petitioners/defendants seek leave to appeal against the judgment of the High Court.
3. Learned counsel appearing in support of this petition has feebly contended that the Civil Court had no jurisdiction in the matter as it involved the question of abandonment of occupancy rights.
After examining the relevant provisions of the Punjab Tenancy Act and the averments made in the plaint. Instituted by respondents Nos.8 to 13, we are satisfied that the view taken by the learned Judge of the High Court proceeded on correct premises, legal as also factual. We, are, therefore, not persuaded to interfere with the findings/conclusions recorded by the learned Single Judge that the suit was cognizable by the Civil Court.
4. We, however, find that the first appellate Court had not decided the question of abandonment of occupancy rights by the present petitioners nor has the High Court said anything about it. Leave is, therefore, granted to examine whether the High Court having held that the Civil Court had the jurisdiction in the matter could restore the Civil Court's decree or should have remanded the case to the lower appellate Court to give finding on the question of abandonment of occupancy rights by the petitioners.