JUDGMENT JUDGMENT ALI NAWAZ CHOWHAN, J.- The judgments of the Courts below are at. Variance and through this civil revision, the findings handed down by the learned Additional District Judge, Sargodha vide his judgment bated 19.6.1988 are assailed. Whereby, he' set aside the judgment and decree given by the learned Trial Court presided over by Mr. Muhammad Naseem Akhtar, Civil Judge, lst Class?
Sargodha, dated 7.1 1.1 987 in Civil Suit No. 608 of 1 987,
2. Briefly the case of the plaintiff was for recovery of Rs.24700/- relating to a property which is agricultural land and measures about 134'/2 kanals located in Chak No. 1 54/NB Tehsil Sargodha.
This was leased out on 15.6.1984 and until 15.6.1984 for a consideration of Rs.9500/-. It was said that the defendant paid Rs.1000/- in advance while the remaining lease money had to be paid through instalments ending on. 30.6.1983. In case of default, the defendant had to pay additionally a sum of Rs.2000/- alongwith residual rent by 31.10.1 983-. The parties entered into an agreement which further indicated that no damage was to be caused to the standing trees. And that if terms were violated, further amount was to be paid as penalty. Fixing a quantum of Rs.24700/- for the suit thus was not for rent of the land but also against violations and damage to the property.
3. The defendant claimed Rs.7500/- as set off which according to him he had spent on the plantation etc. On the divergent claims of the parties, following issues were framed:
(1) Whether the plaintiff has got no cause of action to file this suit? OPD.
(2) Whether the plaintiff is estopped by her conduct to file the present suit? OPD.
(3) Whether-the plaintiff is entitled to recover Rs.24700/- from the defendant? OPP-
(4) Whether the defendant is entitled to claim set off as prayed for? OPD.
(5) Whether the defendant is entitled to special costs? OPD.
(6) Relief.
Issue No. 1 which has no become an important issue and on the basis of which the appeal was accepted, was on the question whether the plaintiff had a cause of action to file the suit.
4. The Trial Court decided issue No. 1 in favour of the plaintiff while also deciding the other issues and rejecting the claim of the defendant with respect to the special cost as well as the claim of set off.
5. In appeal, the learned first Appellate Court came to the conclusion that the case was hit by the provisions of Section 77 of the Punjab Tenancy Act, 1887 and more particularly 77(2)(i) and declared that the Civil Court had got no jurisdiction and dismissed the suit instead of referring it himself to the Civil Court and ordering for the return of the plaint for presentation to the Collector, as required by the proviso to Section .77(3) of the Punjab Tenancy Act, 1887.
6. Anyway the judgment of the learned Additional District Judge is impugned on various grounds, it was said that the learned first Appellate Court had not taken any decision on other issues and had in a haphazard manner dismissed the suit while touching only issue No. 1 . That the respondent had leased the property and some entries which showed him as tenant previously in the revenue record were subsequently altered showing the respondent as a lessee. That therefore he was not a tenant but a lessee and the Civil Court alone had the jurisdiction.
7. Section 4(5) of the Punjab Tenancy Act, 1887 defines a tenant in the following words tenant' means a person who holds land under another person and is or, but for a special contract, would be liable to pay rent for that land to that other person;'but it does not include:--
(a) a mortgagee of the rights of a landowner, or (bi an inferior landowner, or
(c) a person to whom a holding has been transferred, or an estate or holding has been let in farm, under the Punjab Land Revenue Act, 1887, for the recovery of an arrear of land revenue or or a such an arrear, or
(d) a person who takes from the Government a lease of unoccupied land tor the purpose of sub- letting it."
8. The learned counsel appearing on behalf of the petitioner could not take out the case of the respondent from the ambit of Section 4(5) of the Punjab Tenancy Act, 1887 .
9. Section 77 is divided into three groups. Suits by a landlord for arrears of rent or money equivalent of rent, or for sums recoverable unde: Section 14 are covered by Section 77(2)(n). Whereas, suits arising between landlord and tenant on account of the lease or conditions on which a tenancy is held are covered under the second group i.e. Section 77(2)(i). The admitted position is that a lease deed was drawn between the parties and the money claimed is against the amount of the lease and of losses against conditions arising out of the lease.
10. Reliance is also placed on the case titled Muhammad Hafiz v. Additional Commissioner (Revenue), Sargodha, etc. (1981 SCM R 1171) for coming to the conclusion that there is no force in this revision petition and the findings of the learned first Appellate Court were correct except that the plaint had to be returned and was to be presented to the Collector under the provisions of Order 7, Rule 10, CPC. Which modification is now made in the impugned judgment and whereafter the revision petition having no merits, is dismissed. No costs.