JUDGMENT Hardayal Hardy, J.
(1) The plaintiffs Beli Ram and tohers who are respondents in this Court were in cultivating possession of 23 kanals and 11 marlas of land belonging to the appellants Raghbir Singh and Kashmir Singh sons of Kirpa Ram, situate in village Dayara, Tehsil Una. Consolidation procedings took place in village Dayara and as a result, the plaintiffs were left in cultivating possession of only 12 kanals and one marla of land comprised infields Nos-90,91, 92,16/8/3, 2/1, 21!, 24/12 and 8/23/1. Tha dispute in the present litigation relates to this land. The plaintiffs: alleged that they had been in cultivating possession of the suit land since the time of their ancestors, extending over a period of about 200 years, had incurred considerable expense in developing and breaking the land and in erecting their houses on it and that they had been paying only a nomina' rental to the original owners. They, therefore, claimed that they were occupancy tenants and as such entitled to be declared owners of the land by virtue of the provisions contained in the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act Viii of 1953. On these grounds the plaintiffs filed a suit in the court of the Subordinate Judge, Una for a declaration of their title as owners of the land in dispute as against Raghbir Singh and Kashmir Singh, the original owners, and prayed for a mandatory injunction restraining them from interfering with their possession and also from collecting the compensation payable by the Punjab State for 6 kanals and 9 marlas of land which had been acquired by it out of the land in their possession. During the pendency of the suit, the plaintiffs, however, gave up their claim relating to compensation.
(2) The plaintiffs' suit was resisted by the defendants Raghbir j Singh and Kashmir Singh who pleaded that the plaintiffs were merely tenants-at will and that they continued to be so throughout the period during which they were in occupation of the land in suit.
(3) On the pleadings of the parties, the trial Court framed the following issues: - 1. Whether the plaintiffs were occupancy tenants in the suit land and acquired ownership thereof ? 2. Relief.
(4) The learned Subordinate Judge found issue No. 1 in favor of the plaintiffs and thus granted a decree with costs in their favor for a declaration that the plaintiffs were the owners in possession of the land in suit and for an injunction restraining the defendants from interfering with the plaintiffs' possession in any manner whatsoever.
(5) The defendants filed an appeal against the aforesaid decree in the Court of the District Judge, Hoshiarpur. When the appeal came up for hearing before the learned District Judge, the learned counsel for the defendants-appellants raised a preliminary objection that the claim in suit was nto friable by a civil Court and the plaint ought to have been returned for presentation to the Collector in the light of clause (d) to the Second Group of section 77(3) of the Punjab Tenancy Act Xvi of 1887. The objection having prevailed with the learned District Judge, the learned counsel for the plaintiffs submitted that as the question of jurisdiction had been raised for the first time in appeal before him when a decree had already been passed by the learned Subordinate Judge, the proper course for the learned District Judge was to submit the record to the High Court under section 100(1)(a) of the said Act for an order that the decree be registered in the appropriate court in the light of the afore-mentioned provision of the Act. The learned District Judge acceded to the submission made by the learned counsel for the plaintiffs and by his order dated 12th July, 1966 submitted the record of the case to the High Court of Judicature turn the State of Punjab at Chandigarh. Meanwhile, as a result of the reorganisation , of the States of Punjab and H'imachal Pradesh the area in 'which the,land in dispute is situate, came to be incorporated in the Union Territory of HiMacha'l Pradesh. The case was, accordingly, by an order dated 18th November, 1966' made by P. D. Sharma, J. of the Punjab High Court transferred to the Court of the Judicial Commissioner at. Simla and has on account Of the extension of the jurisdiction of the High Court to the Union Territory of Himachal Pradesh, come up for disposal before me.
(6) At the hearing of the reference, Mr. Chhabil Das appearing for the defendants-appellants, Raghbir Singh and Kashmir Singh, contended that the learned District Judge had erred in holding that the suit filed by the plaintiffs-respondent fell under clause (d) of the Second Group to section 77(3) of the Punjab Tenancy Act and was, therefore, friable by a Revenue Court. He argued that the suit contemplated by clause (d) of the Second Group to sub-section (3) of section 77 of the Act was only a suit by a tenant to establish a claim to right of occupancy or by alandlord to prove that a tenant had no such right whereas at the present suit was for a declaration that the plaintiffs were owners of land by virtue of the provisions contained in the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act Viii of 1953. Such a suit, according to the learned counsel, was cognisable by a Civil Court alone. In this connection the learned counsel relied upon a judgment of Punjab Chief Court (Chevis J.) in Kirta Ram v. Kirpa Ram, and contended that in a case like this the only proper order which could be passed by this Court was to return the plaint to the plaintiffs for presentation, if so advised, to a Revenue Court of competent Jurisdiction. Reliance was also placed by the learned counsel on a judgment of the High Court of Judicature for the State of Punjab in Acchar Singh and antoher v. Kartar Knur', where Mehar Singh J. (as he then was) held that the effect of sections 2(a) and 3(a) of the Punjab Occupancy Tenants Vesting of Proprietary Rights) Act Viii of 1953, was that the occupancy tenancies before June 15, 1953 had ceased to exist while those which came into existence after that date also ceased to exist on their very creation. It followed, therefore, that after the coming into force of that Act there was no longer any occasion for "suits by atenant to establish a claim to a right of occupancy, or by a landlord to prove that a tenant has nto any such rights" under clause (d) of the Second Group to subsection (3) of section 77 of the Punjab Tenancy Act. The learned Judge further held that a suit for a declaration that the defendant Kartar Kaur in that case was nto correctly recorded in the revenue records as occupancy tenant and that. she was nto an occupancy tenant and that her rights could nto be converted into ownership rights, raised a dispute relating to a question of title which could only be determined by a Civil Court and nto by a Revenue Court. The learned Judge went on to say that it would often happen that in deciding the question of title the court .would .have to see whether the conditions as prescribed by the Punjab Tenants (Vesting of Proprietary Rights) Act Viii of 1953, had or had nto been fulfillled by the tenant claiming ownership of the land but the rights of the parties in such a case would have to be determined and decided according to the provisions of Punjab Act Viii of 1953, and nto according to any provisions of the Tenancy Act. Such a suit. the learned Judge held, was within the jurisdiction of a Civil Court and nto of a Revenue Court.
(7) In that case the plaintiffs had brought a suit on September 15, 1955 against Kartar Kaur, defendant No. 1, seeking a declaration that she had no occupancy lights in certain land.
(8) The plaintiffs alleged that they along with one Allah Bux, a Muslim, were the owners and landlords of garden land on which Jaimal Singh, father of Kartar Kaur, defendant No. 1, was the occupancy tenant. Jaimal Singh had died without leaving a widow or any mala issue. In 1931 defendant No. 1 had brought a declaratory suit against the plaintiffs and the Muslim owner that she was the sole owner of the garden. On October 3, 1932 the suit was compromised between the parties whereby it was agreed that defendant No. 1 would remain in possession of the suit land for her life and pay to the plaintiffs and the Muslim owner, half of the produce of garden as batai (rent) and that she would also be recorded in the records as an occupancy tenant of the garden under section 6 of the Punjab Tenancy Act of 1887. Pursuant to the said compromise the name of defendant No. 1 was entered as occupancy tenant in the revenue records. The plaintiffs alleged in the plaint that it was a technical and a legal mistake that defendant No. 1 had been described as an occupancy tenant in the revenue records whereas in fact that was nto the intention of the parties. The true intention of the parties, the plaintiffs alleged, was that defendant No. 1 would remain in possession of the garden for her life as a Pattadar and that the statement in the compromise between the parties that defendant No. 1 would remain in possession of the garden as an occupancy tenant under section 6 of the Punjab Tenancy Act of 1887 did nto represent the true intention of the parties. The plaintiffs further alleged that defendant No. 1 was in possession of the garden as a Pattadar for life, that they had asked her to accept the correctness of that position but she had repudiated the plaintiff's claim and had asserted that under the provisions of the Punjab Occupancy Tenants (Vesting of Propriatary Rights) Act Viii of 1953, she had become full owner of the garden On these allegations the plaintiffs sought a declaration to the effect that defendant No. 1 was nto the occupancy tenant of the garden or in the alternative, even if she was held to be one such rights could nto be converted into ownership rights in her favor. The defense of Kartar Kaur, defendant No. 1 was that she had become owner of the garden under section 3 of Punjab Act Viii of 1953. It was in the light of these allegations that the learned Judge came to the conclusion that a suit for a declaration that the defendant was nto correctly recorded in revenue records as occupancy tenant and her rights could nto be converted into ownership rights, raised a dispute regarding title and a suit involving such a claim was friable by a Civil Court and nto by a Revenue Court.
(9) It is obvious that the facts in the present case are entirely different from those in the case decided by Mehar Singh J. The dispute in the present case is with regard to the nature of the plaintiffs' tenancy i.e. whether the plaintiffs are occupancy tenants or tenants-at-will under the defendants-appellants. The plaintiffs' prayer that they were entitled to be declared as owners of the land under Punjab Act Viii of 1953 is consequential upon the declaration they seek in regard to the nature of their tenancy. If the plaintiffs succeed in establishing that they are occupancy tenants and obtain a declaration of their rights through a court of competent jurisdiction, they will automatically become the owners of the land. In way, therefore, their prayer for relief of declaration of their title as owners of the land under Punjab Act Viii, 1953 is a mere surplusage. The real object of the suit is to obtain a declaration about the nature of their tenancy. That such a suit was friable by a Revenue Court alone was held in Sham Singk v. Amarjit Singh, where Tek Chand J. observed - "IT is obvious that the bar under clause (d) is applicable to those cases only in which the relationship of landlord and tenant is admited and the object of the suit is to determine the nature of the tenancy i.e. whether the status of the tenant falls under sections 5, 6, 7 or 8 of the Act."
(10) This judgment of the Lahore High Court appears to have been approved by their Lordships of the Supreme Court in Durga Singh v. Tholu. I am, therefore, nto persuaded to hold that the present suit was congnizable by a Civil Court. But assuming the learned counsel for the appellants is right in his submission the object of section 100(1) (a) of the Punjab Tenancy Act is to deal with the precise situation that has arisen in the present case. Admittedly no objection was taken on behalf: of the defendants-appellants to the jurisdiction of the Civil Cou"t to try the suit before a decree was passed by the trial court. An objection on the ground of lack of jurisdiction was raised for the first time in ap- peal before the learned District Judge. It is therefore, apparent that the suit was decided by the trial court in good faith and no prejudice has been shown to have been caused to either of the parties by 'the mistake as to furisdiction. The case is, therefore covered by sub-section (2) of section 100 of the Punjab Tenancy Act and the learned District Judge was fully jastified in submitting the record to this Court for registration of the decree. I, therefore, direct that tha decree in favor of the plaintiffs respondents be registered in the Court of the Collector Kangra District within whose jurisdiction the land in suit falls. The plaintiffs-respondents shall also have their costs of this reference. Order accordingly.