Devinder Gupta, J.
1. This is plaintiffs appeal against the judgment and decree passed on 10th November, 1982 by the District Judge, Kangra at Dharamshala dismissing his appeal and thereby affirming the judgment and decree passed on 16th June, 1980 by the Senior Sub-Judge, Kangra at Dharamshala.
2. The plaintiff claimed a decree for declaration that defendants Nos. I and 2 are not the tenants and there exists no relationship of landlord and tenant between the parties in respect of the suit land measuring 2 Kanals 17 Marias, situate in Tikka Har Balakarupi, Mauza Alampur, Tehsil Palam-pur, District Kangra and by way of consequential relief claimed a decree for injunction restraining the defendants from taking possession of the land from the plaintiff in pursuance to an order passed on 24th February, 1974 by the Sub-Divisional Officer (Civil), Palampur.
3. The suit was resisted by the defendants on merits as well as by taking up number of objections. It was claimed by defendants Nos. 1 and 2 that they were in occupation of the suit property as tenants and had illegally been dispossessed there from, as such, the Sub-Divisional Officer (Civil), Palampur was within his rights in having made an order of restoration of possession and findings recorded in such proceedings of existence of relationship of landlord and tenant had become final because of the plaintiff not having carried the matter further in appeal. Thus, the suit was barred by principle of res judicata. Otherwise also, it was not maintainable.
4, The trial of the suit proceeded on thefollowing issues:
1. Whether the plaintiff is the owner inpossession of the suit land?
OPP.
2. Whether the plaintiff is entitled to therelief of injunction as prayed for?
OPP.
3. Whether the suit is barred under Order2, Rule 2, C.P.C. and Section 11, C.P.C. asalleged?
OPD.
4. Whether the plaintiff is estopped to file the present suit by his act and conduct?
OPD.
5. Whether the suit is not maintainable inthe present form?
OPD.
6. Whether the suit is properly valued for the purposes of Court-fee and jurisdiction?
OPP.
7. Whether this Court has no jurisdiction to try the present suit as alleged?
OPD.
8. Whether the defendants are tenants at will of the suit land under the plaintiff?
OPD.
9. Whether the plaint is bad for its vagueness and self-contradictions?
OPD.
10. Relief.
5. The trial Court dismissed the plaintiffs suit. It proceeded to record its finding on each and every issue framed. Feeling aggrieved, the plaintiff carried the matter in appeal. The appeal Court instead of recording its finding on the plaintiffs entire claim proceeded to dispose of the same only by taking up one question, namely, as to whether the order passed by the Sub Divisional Officer (Civil), in proceedings under Section 50 of the Punjab Tenancy Act on the issue of relationship of landlord and tenant between the parties was or was not res judicata in the civil suit filed by the plaintiff. It was held that the suit of the plaintiff was barred by principle of res judicata since such an issue was the subject-matter of the proceedings before the Revenue Court, which had been brought by defendants-Nos. 1 and 2 under Section 77(3), Sub-clause (g) of the Punjab Tenancy Act. Re~ sultantly, the appeal was dismissed. It is this judgment and decree, which is under challenge, in the instant appeal. The appeal was admitted on 6th April, 1983, in view of the decision of the Supreme Court in Shri Raja Durga Singh of Solan v. Tholu, AIR 1963 SC 361.
6. I have heard the learned counsel for the parties and gone through the record. Learned counsel for the appellant in addition to reliance being placed on Raja Durga Singh's case (AIR 1963 SC 361) (supra) has also referred to another decision in Richpal Singh v. Dalip, AIR 1987 SC 2205 in support of his submissions that if the dispute between the parties before the Revenue Court in a suit filed under Section 77(3) of the Punjab Tenancy Act, was as to the nature of relationship of landlord and tenant, the Revenue Court under the Punjab Act had no jurisdiction to decide it. Such a decision on the question of relationship of landlord and tenant when such relationship was in dispute would not operate as res judicata in a subsequent civil suit.
7. On giving my considered thought to the question posed, I am of the view that the present appeal deserves to be allowed and the judgment and decree passed by the lower appellate Court deserves to be set aside.
8. In Raja Durga Singh's case (AIR 1963 SC 361) (supra), a suit had been brought before the Civil Court by Raja Durga Singh against the defendant Tholu and others for recovery of possession and for mesne profits. The suit was resisted by the defendants, inter alia, pleading that they were the occupancy tenants on the suit land for the last two generations and were cultivating the land jointly and the suit was not cognizable by the Civil Court. They had also prayed that a suit, had been filed by them against Raja Durga Singh before the Assistant Collector 1st Grade, Solan for declaration to the effect that they are in possession of the suit land as occupancy tenants, therefore, the appellant's suit should be stayed. The trial Court had decreed the suit of the plaintiff Durga Singh. Appeal preferred by the defendants was dis-missed. The Judicial Commissioner, however, allowed the defendants' appeal holding that the defendants were occupancy tenants and in view of the provisions of Section 77(3) read with the first proviso thereto of the Punjab Tenancy Act, Civil Court was debarred from taking cognizance of a suit where question to be decided was about the relationship of landlord and tenant. Of further appeal being preferred to the Supreme Court by special leave, decision of the Judicial Commissioner was upset and it was held that the Civil Courts jurisdiction to entertain and decide the suit cannot be barred where there is a dispute between the parties as to the relationship of landlord and tenant. Such a jurisdiction would be barred only where it is admitted that reltionship exists of landlord and tenant and not in a case where such a relationship is disputed. Construing the provisions of Section 77 of the Punjab Tenancy Act, the Court in para 6 of its report held:
'........ It would, therefore, be reasonable toinfer that' the legislature barred only those suits from the cognizance of a Civil Court where there was no dispute between the parties that a person cultivating land or who was in possession land was a tenant. This is precisely what has been held in the two decisions of the Lahore High Court relied upon by Mr. Achhru Ram, In the first of these two cases 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 admitted 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.'
9. In the second decision, on which reliance has been placed by the learned counsel for the appellant, namely, Richpal Singh's case (AIR 1987 SC 2205) (supra), proceedings had been initiated in the Court of Assistant Collector 1st Grade, Ballabgarh by the appellants therein against the respondent seeking their ejectment under Section 77(3) read with proviso 2(e) of the Punjab TenancyAct. On suit being decreed, the respondent was ejected from the suit land in pursuance to execution of decree. Respondent Dalip instead of challenging the decision of the Revenue Court in appeal filed a suit in Civil Court against Richpal Singh by alleging that he was a mortgagee in possession of the suit land and not a tenant, therefore, the decree of ejectment passed by the Revenue Court was without jurisdiction and nullity. Restoration of possession was also sought since it was alleged that he had been wrongly ousted from the land by the Revenue Court. Question of Civil Court's jurisdiction to entertain and decides the suit as also question of resjudicata were the two points, which ultimately came up for consideration before the apex Court. Relying upon the scheme of the Punjab Tenancy Act and the decision in Raja Durga Singh's case (AIR 1963 SC 361) (supra) and number of other decisions, it was held that an order directing the eviction of a person by the Revenue Court under the Punjab Tenancy Act does not operate as resjudicata in a Civil Court instituted for restoration of possession by a person claiming to be a mortgagee and not a tenant. It was also held that limit of jurisdiction of the Revenue Court under Subsection (3) of Section 77 of the Punjab Tenancy Act is apparent from the fact that the suits by a landlord to eject a tenant do not encompass therein a suit to decide whether a person is or is not a tenant or whether the plaintiff is or is not a landlord. In other words, it was held that if the dispute was of the nature of relationship of landlord and tenant between the parties, the Revenue Court under the Punjab Act had no jurisdcition to decide it.
10. The facts of the instant case are also pari materia as those of Richpal Singh's case (AIR 1987 SC 205) (supra). In the instant case, it was pleaded by the defendants that their suit for recovery of possession under Section 50 of the Punjab Tenancy Act was decreed by the Sub Divisional Officer (Civil), Palampur and no appeal was taken against such a decree. In the said proceedings between the same parties, one of the issue was as to whether there exists a relationship of landlord and tenant between the parties ornot. It was held that defendants Nos. 1 and 2 were tenants under the plaintiff herein and thus decision on the said issue in so far as the present Civil Suit is concerned constitute res -judicata.
11. From the nature of the issue as framed in the proceedings before the Sub Divisional Officer (Civitj, Palarapur, it would appear that the plaintiff had disputed the relationship , of landlord and tenant in those proceedings also. In the Civil Suit also, plaintiff had not admitted the relationship of landlord and tenant between the parties. Since there was a dispute amongst the parties as to the existence of the relationship of landlord and tenant, Revenue Court while dealing with an application under Section 50, thus would be having no jurisdiction to take a final decision on such question and in case while disposing of the said application incidentally the question had cropped up decision on that issue will not be res judicata in in a Civil Suit before the Civil Court.
12. Constitation Bench of the Supreme Court in Dhuiabhai v. State of Madhya Pradesh, AIR 1969 SC 78 on an appreciation of various decision had culled out the seven propositions on the question of ouster of Civil Court's jurisdiction to entertain and decide the suit as follows:
'(1) Where the statute gives a finality to the orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.
Where there is no express exclusion the examination of the remedies and the schemeof the particular Act to find out the intend-ment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.
(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the same of the particular Act must be examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.'
13. In Richpai Singh's case (AIR 1987 SC 2205) (supra) referring to the first two propositions as culled out in Dhulabhai's case (AIR 1969 SC 78) (surpa) and thenplacing reliance on Secretary of State v. Mask and Company AIR 1940 PC 105, Magiti Sasamal v. Pandab Bissoi, AIR 1962 SC 547, Lal Chand (dead) by L.Rs. v. Radha Kishan, AIR 1977 SC 789 and State of Tamil Nadu v. Ramalinga Samigal Madam, AIR 1986 SC 794 and on reference to the provisions of Section 77 of the Punjab Tenancy Act, it was held that:
'.......if the dispute was as to the nature ofthe relationship of landlord and tenant between the parties, the Revenue Court under the Punjab Tenancy Act had no jurisdiction when there was admitted position, the relationship of landlord and tenant was accepted, the remedies and rights of the parties should be worked out under the scheme of the Act.'
14. Applying the ratio of the aforementioned decisions since in the instant dispute, relationship of landlord and tenant was not admitted, decision of the Sub-Divisional Officer (Civil) as to the question of relationship of landlord and tenant cannot be said to be barred under the principle of res judicata and consequently the Civil Court will have jurisdiction to decide the said dispute.
15. Resultantly, the judgment and decree passed by the lower Appellate Court deserves to be set aside.
16. Since the lower Appellate Court, being the Court of fact has not decided the other questions arising before it in appeal preferred by the plaintiff, instead of taking decision by this Court, I consider it to be a fit case in making an order of remand directing the lower Appellate Court to hear and decide the appeal on merits. Parties are directed to appear before the Court of District Judge, Dharamshala on 9th May, 1994, who will register the appeal on its original number and dispose of the same expeditiously.