' MUHAMMAD AFZAL ZULLAH, J.-This judgment will dispose of L. P. As. Nos, 981, 982, 983, 984, 985, 986 and 987 of 1966. They arise out of the judgment of a learned Single Judge (reported in PLD 1966 Lab. 1050) whereby the corresponding second appeal against orders in first appeal, whereunder the respondents/plaintiffs' suits were held to be triable exclusively by Revenue Court and plaints were accordingly returned under section 77 (3), proviso (i) of the Punjab Tenancy Act, were accepted.
2. The facts necessary for appeals taken from the impugned judgment are that Muhammad Islam and others, the respondents, instituted suits for ejectment against the present appellants, in the Revenue Court under section 77 of the Tenancy Act. In their written statement, it was alleged by the defendants (appellants) that they were not ghair mauroosi tenants but were in possession of the land as owners. They also claimed to have acquired title to the land by adverse possession for over twelve years. No objection, however, was taken to the jurisdiction of the Revenue Court to entertain the ejectment suits. Instead of proceeding with the suits, the plaintiffs withdrew them and brought fresh suits in the civil Court, out of which these appeals have arisen. In the plaints, no reference was made to the revenue suits which had been withdrawn and it was briefly alleged that the defendants had denied the plaintiffs' title and had claimed ownership on the basis of adverse possession. The appellants raised a preliminary objection about the jurisdiction of the civil Court.
On merits, they pleaded that they had never denied the plaintiffs' ownership of the land or claimed title to the land on the basis of adverse possession. It was further alleged that their ancestors had brought the land under cultivation at a considerable expense and they could not be ejected without payment of compensation. They also claimed rights of occupancy in the land on the ground that their ancestors had settled in the village along with the ancestors of the plaintiffs (respondents),
3. The trial Court decided the preliminary issue as to jurisdiction against the appellants on 3rd June 1960 and on merits decreed the suits on 23rd June 1960. In appeals, the learned District Judge held that the civil Court had no jurisdiction to deal with the cases and they were exclusively triable by the revenue Court. The plaints were ordered to be "returned under section 77 (3), proviso (I) of the Punjab Tenancy Act for presentation to the Collector".
4. On second appeals, the learned Judge in Chambers held that the nature of the suit for deciding the question of jurisdiction is to be determined on the basis of the averments in the plaint and not on what is stated in defence ; that proviso (1) to section 77 (3) of the Punjab Tenancy Act is an exception to the aforestated rule in that where a suit is cognizable by and is instituted in a civil Court, but it becomes necessary to decide any matter which can be heard and determined by revenue Court under section 77, the civil Court shall return the plaint for trial by a revenue Court ; that section 77 (second group clause (e) applies only when relationship of landlord and tenant is admitted and the nature of tenancy alone is in dispute ; that although the tenant cannot deny the title of the landlord, section 116, Evidence Act is for the latter's benefit who may accept the repudiation of tenancy by the tenant and received the property on the basis of title ; and that denial of tenancy by the appellants before the revenue Court in earlier suit, whereupon the respondents withdrew the suits and instituted fresh ones before civil Court, operates as estoppel against the appellants they cannot approbate and reprobate and thus were debarred from raising the plea before the civil Court that they are tenants of the respondents and that the suits are not competent. Consequently, the orders dated 21st January 1961 of the learned lower Appellate Court for return of plaints were set aside and the appeals were remanded to the said Court for disposal on merits.
5. Learned counsel for the defendants (appellants), while frankly agreeing with the exposition of law in the impugned judgment, has canvassed a new proposition. According to him, while it is correct that a general denial of existence of tenancy would take a matter out of the jurisdiction of the revenue Court, a frivolous, non-serious or ill-advised dispute in this behalf would not bar that jurisdiction. According to him, the appellants were not properly advised in taking a wrong plea against the factual position. And if the respondents had not withdrawn the suits from the revenue Court immediately on raising of the plea of denial by the appellants, which was one of the alternative pleas, and the question would have been tried there, a finding might have been rendered in that forum that the appellants' denial was wrong, and thus the revenue Court would have the jurisdiction to try the matter. In other words, it is argued that the withdrawal of the suits by the respondents without trial, from the revenue Court deprived that forum of an opportunity to hold that the denial of tenancy was not genuine and the appellants were also deprived of an opportunity to correct their position by resiling from the assertion in the written statement, by relying on the revenue record. Thus, according to him, if the civil Court during the trial comes to the conclusion that the earlier plea was wrong and the real dispute is not at out the existence of tenancy, it would have to refer the case to the revenue Court through the Collector, because it would not be competent to decide the suit. He has also contended that bar of jurisdiction of civil Court being by statute, the appellants could raise this plea in civil Court and question of approbation and reprobation cannot be raised against statute. Learned counsel also tried to show that the rulings in Cheta v. Baija and others ; Sham Singh and others v. Amarjit Singh and Baru and others v:Na idar and others do not, in any way, adversely affect the argument raised by him.
6.Learned counsel for the respondents reiterated the points noted in the impugned judgment (summarised in para. 4 al ove). With regard to the aforenoted argument of "wrong and ill-advised1 2 3 plea" now raised from appellants' side, learned counsel contended that it should be rejected as an afterthought-It was not raised at any earlier stage nor there is any factual support for it. He critically examined the law laid down in the Full Bench case of Baru and others in order to fortify the submission that when the status as landlord and tenant is admitted and the dispute relates to the nature of tenancy, only then section 77 of the Tenancy Act would apply. He made particular reference to pages 218, 221, 222, 224, 226, 227 and e28 of the report. According to him, this ruling concludes the entire controversy in this case. Further according to him, the plaintiffs asserted that the defendants are trespassers. There is no agreement on the question of status of the parties as landlord and tenant. In other words, as argued when tenancy is not admitted, the question of nature of tenancy does not arise-The ruling in the case of Baru and others would apply with full force and the Revenue Court would have no jurisdiction. With regard to estoppel on the question of jurisdiction, learned counsel for the respondents argued that when the question of jurisdiction depends upon a state of facts which stands concluded by a statement thereof by one of the parties, the reversal of that statement is impermissible on the principle of estoppel. He cited Hemanta Kumari Devi v. Prasanna Kumar Datta and also sought general support from Saira Bibi v.
Chandrapal Singh and others and Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf, West Pakistan. He was emphatic in his contention that the appellants cannot change the position taken in their written statement filed before the Revenue Court. They had led the owners of the land (respondents herein) to believe that they genuinely denied the title of the owners (merits of the denial apart) and on this, the suits filed before the Revenue Court were withdrawn. The aforenoted belief was also the reason for the respondents not seeking permission to refile the suits again in the same forum, i,e,, the Revenue Court. The appellants had, through their written statement and conduct, compelled the respondents to withdraw the suits from the Revenue Court and file fresh suits before the Civil Court. Learned counsel for the respondents also argued that the plea of "wrong advice" before the Revenue Court, now being raised on behalf of the appellants at this stage, was not taken at any earlier stage. According to him, the denial of the title of the respondents by the appellants before the Revenue Court was absolutely clear and the forfeiture of the tenancy would set in on the said denial. He tried to draw a comparison between the English and Pakistani law in this behalf, by making reference to Maharaja of Jeypore v. Rukmani Pattamandevi and Mst. Gindori v. Sham Lal alias Maman Mal and another. According to him, there was unequivocal denial of title in this case. It was through record in the previous suit before the Revenue Court and it was prior in time to the question which arose before the civil Court.
7. The controversy in this matter has considerably been narrowed at the present letters patent stage. Learned counsel for the appellants specifically admitted that he would not dispute the following propositions which he thought have been propounded in the judgment under appeal -
(i) only the averments in the plaint determine question of jurisdicdiction of Civil Court and not the defence ;
(II) that section 77 (Second Group, clause (e) of the Tenancy Act is applicable only when the relationship of landlord and tenant is admitted but conditions of tenancy alone are in dispute ;
(iii) that the defendants cannot be permitted, as he puts it, to hide and seek-they are estopped under the Evidence Act to deny the title of the plaintiffs.
He, however, contended that "if there is a bar by statute, then the jurisdiction will have to be determined on that basis".
8 . No doubt there is a bar of jurisdiction by statute (i,e,, section 77 (3), Proviso (i) but the said provision cannot be read in isolation of the specific item from various groups (Second Group, clause (e) on account of which the bar to the jurisdiction of the Civil Court has been pressed service in this case. Second Group, clause (e) requires that only those matters would come within the ambit of the bar where the status of the landlord and tenant is not in dispute. In order to4 5 6 7 8 ascertain as to what is the controversy between the parties-whether it relates to the status as landlord and tenant or the conditions of tenancy, reference per-force would have to be made to the positions taken by the parties at relevant stages. In this case, the plaintiffs (respondents herein) took a positive position before the Civil Court that while they are the owners, the defendants (appellants herein) are the trespassers. It cannot be ignored that when taking this position before the Civil Court, they were fortified by the admissions of the appellants already made in writing before the Revenue Court. The appellants have not accepted this position in their defence before the Civil Court. They have tried to show that they are the tenants under the respondents. Thus, there is no agreement on the question of status of the parties qua tenancy and that being so, the so- called statutory bar which in reality would be based on and determinable with reference to the factual position would not operate. Learned counsel for the appellants in all probability, realised considerable difficulty in supporting the appellants' position taken before the Civil Court, therefore he took the risk of advancing a new factual plea at this late stage ; namely, that the appellants were wrongly advised in denying the title of the respondents before the Revenue Court. He has rather put it very lightly by saying that the appellants were "ill-advised" or that they took a "wrong plea" before the Revenue Court and therefore, they should not suffer on account thereof. The reality, however, cannot be ignored that on their own admission, now made through their counsel at the letters patent stage, they took a "false" plea before the Revenue Court. Whether it was a good or a bad advice, the fact remains that they took grave responsibility for what they now say "a wrong plea". The obvious question would arise why a wrong advice, if at all it was wrong, was tendered to them and, secondly, if they could put forward a correct factual plea in accordance with their present belief, why they did not then do so. There is no other explanation except that there was a motive on their part to set up plea of denial of title against the respondents so as to gain advantage, if possible, in grabbing property belonging to others, which now it is admitted, belong to others : and, secondly, to avoid adjudication before the forum selected by the respondents for resolution of dispute relating to tenancy. That being so, the next question would arise whether the appellants can be permitted to take advantage of the above-noted position adopted by them before the Civil Court so as to succeed once again in avoiding adjudication by a Court of general jurisdiction. The answer obviously would be in the negative. There could hardly be any legal controversy with regard to the afore-visualised position. In the light of the above discussion, we are unable to agree with the learned counsel for the appellants that in this Case principle of estoppel would not operate against the appellants simply because the bar of jurisdiction is contained in a statute. As discussed above, it is in reality, contained in the statements and conduct of the appellants before the Revenue Court, in the earlier proceedings.
9. The foregoing comment would also apply to the subsidiary argument of the learned counsel for the appellants that if the respondents would not have withdrawn the suits from the Revenue Court, the appellants might have corrected the position taken in their written statements, by making reference to the revenue record ; and thus an attempt has been made to place blame on the respondents for the conduct of the appellants. Further, we do not agree with the learned counsel that the respondents were in any way bound to proceed with the trial before the Revenue Court. If they thought and believed that the appellants then were serious in denying their title and were not accepting the position as tenants, there is nothing in law or equity to assume that the respondents C had a duty to wait till the appellants had second thoughts so as to afford opportunity to them to seek amendment of their written statement filed before the Revenue Court. The withdrawal of the suits, without seeking permission for refiling the same before the same forum, in the circumstances, was fully justified. This assumption finds support from the subsequent conduct of the respondents, namely, that they re-agitated the matter before the civil Court.
10. We do not agree that the plea of denial of title was a "non-serious" plea taken by the appellants before the Revenue Court or that they wanted to give an impression that it was only a "frivolous" plea. When taken in written statement in a formal manner, it had all the qualifications of a serious plea of defence in a suit filed before the Revenue Court. Thus, the Revenue Court had, on account of the appellants' plea, no jurisdiction and if the above proposition is reversed on factual basis on account of the application of the principle of estoppel, when the case came before the civil Court, the subject-matter thereof was not such which could, under subsection (3) of section 77 (proviso (0, "be heard and determined only by a Revenue Court". Filing of the written statement in the civil Court during the pendency of the suit, i,e, with intent to oust the jurisdiction of the Civil Court, during the trial as is visualised by the proviso to section 77 (3), would not make any difference in this behalf : firstly, because, on account of the agreed interpretation of section 77 (3) (Second Group, clause (e), namely, that there should be no dispute relating to the status of landlord and tenant and that the dispute should only be with regard to conditions of tenancy, the subject-matter of controvery even after the filing of the written statement would not fall within the jurisdiction of the Revenue Court ; and secondly, on account of operation of the principle of estoppel, the appellants would be debarred from taking a different plea in the written statement filed before the civil Court.
11. The feeble argument advanced from the appellants' side as last resort, that in pith and substance the appellants had not denied the title of the respondents before the Revenue Court and that in their written statements they had taken it only as an alternative plea, appears to be based on an afterthought of the appellants. We, after going through the copy of the written statement (Exh. P. 1), are unable to agree with the interpretation placed by the learned counsel on it. The two alternatives taken in the very first paragraph of the written statement are : one, total denial of the assertion made in the corresponding paragraph of the plaint containing the averment of title of the respondents ; and two, the alternative, that even if the denial is not proved and the respondents are held to have owned the property at any initial stage, they had lost the title on account of stated reasons and further that (this is important) the defendants (present appellants) had become complete owners of the property. The expression used in Vernacular is{{URDU TEXT}} ' In paragraph 2 of the written statement, an unequivocal assertion is made that the defendants are not the tenants under the plaintiffs and that they had, on account of adverse possession, become full owners of the land. Details of the plea of adverse possession are also mentioned in this paragraph. Throughout the written statement, there is not an iota of assertion, even in an alternative form, that the appellants were likely to take the plea that they were tenants under the respondents. The plea of denial of title of the respondents and relationship of landlord and tenants was unequivocal . Thus, no advantage can be gained by the appellants on the basis of the interpretation of their written statements filed before the Revenue Court. As all the arguments advanced by the learned counsel for the appellants against the impugned judgment are based on the questions discussed above and he has not disputed the prepositions of law laid down in the impugned judgment, we do not consider it necessary to re-examine the case-law. We affirm the same. Accordingly, there being no substance in these appeals, neither on legal nor on factual side, the same are dismissed with costs. \12 Before closing this judgment, it needs to be observed that learned counsel for the respondents raised a preliminary objection that majority of these appeals abated long ago on account of the demise of one or the other parties. We asked him to give the detailed particulars in this behalf in writing so that learned counsel for the appellants should be afforded opportunity of meeting the objection. In the meanwhile the arguments on merits commenced and concluded. On the last day, learned counsel for the respondents reiterated the earlier raised preliminary objection but did not submit anything in writing. He wanted to produce a rough chart prepared by him addressing arguments on this question but we refused to entertain it as a formal document on these appeals.
On account of all these circumstances, we have refrained from treating any of the appeals as having abated. AIR 1927 Lah 452 AIR 1931 Lah. 362 AIR 1942 Lah. 217 AIR 1930 Cal. 32 AIR 1928 Oudh 503 PLD 1971 SC 376 AIR 1919 P C 1 (1947) 28 Lab. 235