' MUNIR A. SHEIKH, J.---By this common judgment, we intend to decide Civil Appeals Nos.978 and 979 of 1994, as questions of law and facts are common in both of them.
2. These appeals by leave of the Court are directed against a common judgment, dated 22-11-1994 passed by a learned Single Judge of the Lahore High Court, Multan Bench in Civil Revisions Nos.558 and 559 of 1984, dismissing the same.
3. The background, under which both the appeals have arisen from a suit filed by the appellants for declaration that they had become owners of the land in full, shortly stated in that the predecessors-in-interest of the appellants were occupancy tenants qua the land in dispute under section 6 of the Punjab Tenancy Act, 1887. On the promulgation of the Punjab Tenancy (Amendment) Act, 1952 such occupancy tenants had become entitled to acquire ownership rights in the land under their tenancy. According to section 114(2)(b) of the Punjab Tenancy Act, 1887, in case the rent was payable by such tenant in kind only i,e, Hissabatai, he was to acquire ownership rights in that much land according to the ratio of Hissabatai which he was to pay and in case the rent was payable both in kind i,e, Hissabatai and cash he was to get ownership rights in whole of the land comprising his tenancy on payment of compensation within the period fixed and extended under the .Act. It was, however, provided under section 114(3) of the said Act that till such time the rules are framed under the said Act, the relationship between the parties would continue to be that of landlord and tenant as before. The rules were framed in the year 1953, therefore, by operation of subsection (3) of section 114 of the Act, the relationship of landlord and tenant between the parties stood abolished and the only 'question remained to be decided was as to whether the person who was occupancy tenant was entitled to get ownership rights in whole of the land or in a A portion of the same, the decision of which question was dependent upon the decision of the question as to whether rent of the land under tenancy was payable in kind as a whole or partly in kind and partly in cash. The Revenue Authorities sanctioned mutation in implementation of the said provisions of the Act by mutating ownership rights in the occupancy tenant in the part of the land assuming as if the rent was payable in kind only Feeling aggrieved, the appellants brought suit before the Civil Court seeking declaration that they were owners of whole of land with possession and as a consequential relief, decree for permanent injunction was sought restraining the private respondents as well as the Revenue Authorities from interfering in their possession, as such. It was contended by the private respondents by raising dispute not only about the rights of the appellants as occupancy tenants but also that the rent was paid both in kind and cash.
4. The trial Court after framing issues reflecting the controversies arising from the pleadings of the parties, recorded evidence and through judgment, dated 12-7-1973 decreed the suit by recording findings that the rent was payable both in kind and cash, therefore, by operation of section 114(d) ibid, the plaintiffs had become owners of whole of the land on the payment of compensation determined under the Act which was found to have been deposited within the time fixed under the law which was extended from time to time. In appeal filed by the respondents, the First Appellate Court took the view that the question being between the landlord and tenant as to terms of tenancy as regards payment of the rent, therefore, the jurisdiction exclusively vested in the Revenue Court under section 77 of the Punjab Tenancy Act, 1887 to determine and decide such a question as such, the jurisdiction of the Civil Court stood completely ousted, therefore, without recording any finding on these issues on merits, the appeal was accepted, judgment and decree of the trial Court were set aside and the plaint was ordered to be returned to the plaintiffs for presentation before the Revenue Court. The revision petitions filed by the appellants-plaintiffs have been dismissed by the learned Single Judge of the Lahore High Court through the impugned judgment against which these appeals by leave of the Court have been filed.
5. The First Appellate Court in its judgment, dated 22-4-1984 took the view that the dispute as raised in the plaint was covered by clauses (h) and (i) of subsection (3) of section 77 of the Punjab Tenancy Act, 1887, therefore, the jurisdiction exclusively vested in the Revenue Court under the said Act to decide the suit. Clauses (h) and (i) of subsection (3) of section 77 (ibid) are reproduced below for facility of ready reference:- "(h) suits by a landlord to set aside transfer made of a right of occupancy, or to dispossess a person to whom such a transfer has been made, or for both purposes;
(i) any other suit between landlord and tenant arising out of the lease or conditions on which a tenancy is held."
6. There was conflict of opinion between various Benches. Of the Lahore High Court about the applicability and interpretation of these two clauses. In the case of Wali Muhammad and others v.
Muhammad Sharif and 7 others reported as PLD 1976 Lahore 1535, Mushtaq Hussain, as he then was of the Lahore High Court took the view that since the question of ownership rights in the land under section 114(2) of the Punjab Tenancy Act was dependent on the determination of the question of terms and conditions of tenancy as to payment of rent between the parties, therefore, the determination of the said question fell within clause (1) of section 77(3) (ibid), as such, was exclusively triable by the Revenue Court, therefore, subject matter of the suit fell within section 77 and attracted prohibition contained in section 77(3) (ibid). Earlier, however, Aftab Husain, J. (as he then was), in the case of Allah Ditta and another v. Muhammad Ali and 10 others (PLD 1975 Lahore 429), held that bar contained in section 77(3) of the Punjab Tenancy Act, 1887, in such case was not attracted, for the plaintiff in such a suit seeks declaration as to his ownership rights acquired under the Punjab Tenancy (Amendment) Act, 1952 and the question as to what was the mode of payment of rent was incidental, therefore, the jurisdiction of the Civil Court to try such a suit was not ousted. It was held that merely because the defendant had raised dispute as regards mode of payment of Batai or the terms and conditions of tenancy as to payment of Batai would not oust the jurisdiction of the Civil Court to try such a suit. In the case of Mst. Zainab and others v. Fazal Dad and others (PLD 1966 (W.P.) Lahore 1050), it was held that section 77 of the Punjab Tenancy Act is attracted where the relationship of landlord and tenant is admitted and nature of tenancy was in dispute. In the case of Rabia Bibi etc., v. Sanaullah etc. (NLR 1980 Revenue Lahore 30), a learned Single Judge of the High Court took the view that a civil suit seeking declaration that the plaintiff had become owner of the land on the payment of compensation under section 114 of the Punjab Tenancy (Amendment) Act, 1952 was maintainable before the Civil Court and jurisdiction in such suit was not ousted by virtue of section 77(3)(d) of the Punjab Tenancy Act, 1887. Same view was taken in the case reported as Khushi Muhammad and others v. Boota and others (PLD 1989 Lah.
1276) by M.A Ghafoor Khan Lodhi, J. (as he then was) and it was held that the Civil Court was not divested of the jurisdiction to try such a suit. The learned Judge of the High Court following the decision in the case of Wali Muhammad (supra) upheld the judgment of the Lower Appellate Court by holding that the jurisdiction of the Civil Court in such matter stood ousted and the jurisdiction to decide such matter was exclusively vested in the Revenue Court. Both the First Appellate Court and the High Court lost sight of the fact that under section 114(3) of the Punjab Tenancy Act, 1887 the relationship between the parties as landlord and tenant was continued and they were to continue to enjoy the same rights and remained subject to the same liability as before only till the framing of the Rules by the Government for the purposes of clauses (c) and (d) of subsection (2) of section 114
(ibid) which were framed in 1953, as such on the date when the impugned mutation was sanctioned by the Revenue Authorities in the year 1960 determining the question as to acquisition of ownership rights qua portion of the land and filing of the present suit, the relationship between the parties as landlord and tenant ceased to exist, therefore, section 77 of the Punjab Tenancy Act and the bar of jurisdiction of the Civil Court to entertain any suit in respect of any dispute between the landlord and tenant was no more available. Besides in the suit of such a nature, in our view, the question as to payment of rent was incidental and was relevant for limited purposes to determine the question of acquisition of ownership rights in the land comprising occupancy tenancy, therefore, the suit was for all purposes of declaration of title in the land and such was triable by the Civil Court. In our view, law was correctly laid down in the case of Khushi Muhammad and others v.
Boota and others (PLD 1978 Lah. 1276); Allah Ditta v. Muhammad Ali (PLD 1975 Lah. 429) and Rabia Bibi v. Sanaullah (NLR 1980 Rev. Lah. 30), and the same is hereby upheld and the view taken to the contrary in the case of Wali Muhammad v. Muhammad Sharif (PLD 1976 Lahore 1535) is not approved.
7. For the foregoing reasons, both the appeals are hereby accepted, judgments, dated 22-1-1994 of the Lahore High Court and, dated 22-4-1984 of the learned Additional District Judge are set aside as a consequence of which the appeals before the learned Additional District Judge shall be deemed to be pending which shall be decided on merits in accordance with law. There will be, however, no order as to costs.