ORDER
Harjit Singh Bedi, J.
1. This judgment wilt dispose of Civil Writ Petition Nos. 175 and 4271 of 1980, as common question of law and fact are involved in both the writ petitions. The facts have been taken from Civil Writ Petition No. 4271 of 1980
2. Respondent Nos. 5 to 14 filed a suit under Section 77(3) (d) of the Punjab Tenancy Act, 1887 (hereinafter called the Act) to establish their claim to occupancy rights of land measuring 46 kanals 5 mar las, situated in village Wazirpur, Tehsil Ballabgarh. Respondent No. 4, vide order dated 6th August, 1973 annexure P-l to the petition, decreed the suit. The appeal and the revision filed by the petitioner were thereafter dismissed vide orders dated 6th May, 1976, 16th February, 1976 annexures P-2 and P-3, respectively by the order annexure P-l to P-3, the petitioner thereafter tiled a revision petition before the financial Commissioner, Haryana, who also dismissed the same vide order dated 16th July, 1980, Annexure P-4 with the petition. The petitioner has impugned the orders Annexure P-l to P-4 primarily on the ground that by virtue of Section 3 of the Punjab Occupancy Tenant (Vesting of Proprietary Rights) Act, 1953 (hereinafter called the ‘Vesting Act’), the property in question came to vest in the petitioner and the revenue Courts had, therefore, no jurisdiction to try the suit under Section 77(3) (d) of the Act. It has been urged that in view of this development it was a Civil Court alone which had the jurisdiction to determine the rights between the petitioner and respondent Nos. 5 to 14 inter se.
3. On behalf of the respondents, it has been argued by Mr. Mani Subrat Jain, learned Senior counsel, that the automatic vesting, as envisa ed by Section 3 of the Vesting Act, could be only with regard to those tenant/who had been recorded as occupancy tenants in the revenue records on 15th day of June, 1952, but with respect to those who were not so recorded on that date, the requisite enquiry would have to be made by the revenue courts alone. He has brought to my notice Sections 4 and 5 of the Vesting Act in order to contend that even after the vesting of the land in the occupancy tenant, the jurisdiction of the revenue authorities is not entirely barred as the question of compensation, which is to be paid to the former landowner in terms of the aforesaid Sections, has to be determined by the Collector. He has also urged that looking to the plaint filled by the respondents before the authorities under the Act, it was clear that they were seeking only a declaration with regard to their title as occupancy tenants and were not claiming ownership of the land in dispute The last argument urged by Mr M. S. Jain is that in any case once the revenue court had decided the matter after considering the evidence produced before it, and no prejudice could be said to have been suffered by the petitioner, this Court would not interfere by virtue of Section 100 sub-Section (3) of the Act.
4. I have considered the arguments raised by the counsel for the parties and am of the view that there is merit in the petitions and, as such, these are liable to be allowed.
5. The decision of the case would obviously hinge upon the statutory provisions. Section 77(3) (d) of the Act provides that a suit by a tenant to establish a claim to a right of occupancy, or by a landlord to prove that a tenant has not such a right ; shall be instituted in, and heard and determined by Revenue Courts and no other Court. It is significant that what is to be seen by the Revenue Courts in a suit filed before it is. whether a tenant claims a right of occupancy and not a right of ownership as such. Section 3(a) of the Vesting Act, which is relevant, is reproduced hereunder :
“3. Notwithstanding anything to the contrary contained in any law, custom or usage for the time being in force, on and from the appointed day-
(a) all rights, title and interest (including the contingent interest, if any, recognized by any law, custom or usage for the time being in force and including the share in the Shamilat with respect to the land concerned; of the landlord in the land held under him by an occupancy tenant, shall he extinguished, and such rights, title and interest shall be deemed to vest in the occupancy tenant free from all encumbrances, if any, created by the landlord.”
It will be seen from a reading of the aforesaid Section that the rights of the landlord in the land held under him by an occupancy tenant shall be extinguished from the date of coming into force of the Vesting Act Keeping in view the aforesaid statutory provisions, Mr. M. L. Sarin, learned Sr. Advocate, has argued that on coming into force of the Vesting Act, the rights of the landlord in the land in question were extinguished and the occupancy tenants became full owners of the land which were under their tenancy. He has urged that in view of vesting of the land in question in the tenants, what was to be in fact decided between the contesting parties was the question of title and ownership of the land and not the status of the respondents as occupancy tenants and this was a matter which was within the exclusive jurisdiction of the Civil Court. He has relied on Union of India v. Harbans Singh, (1959) 61 P. L. R. 30 Amin Lal v. Finance Commissioner Revenue Haryana, (1972) 74 P. L. R. 96, Dinu v. Nasib Khan, (1975) 77 P. L. R. 437. “, Dr Ram Lal Anand v. Begum Zamani Ali Khan, (1989) 2 L. L. R. 25. in support of his argument. In Amin Lal’s case (supra) while explaining (he expression occupancy tenant’ given in Section 2(a) of the Vesting Act, this Court granted an identical status to those tenants who had been recorded as such in the revenue records immediately before the Vesting Act came into force and those, who after the commencement of the Act, obtained a right of occupancy in respect of the land held by them, held as under :
“Section 3 of the Vesting of Proprietary Rights Act has the effect of extinguishing all rights, title and interest of the landlord on the appointed day and this extinguishments of rights takes effect in both the categories. The result, therefore, is that even if an occupancy right is obtained after the coming into force of the Vesting of Proprietary Right’s Act, there is simultaneous extinguishments of that right and conversion of the same into owner- ship. When occupancy rights have ceased to exist and statutory ownership created in lieu thereof, a suit for declaration of occupancy rights would be wholly meaningless. No tenant claiming to hold occupancy rights on the commencement of the Vesting of Proprietary Rights Act would go to Court and seek a declaration of those rights when after the operation that had started on the 15th June, 1952, he was no longer holding that status and had become the owner.”
Amin Lai’s case was a case where the civil court had, in fact, decided the matter and the observations were made in that context The aforesaid case was followed in the other judgments cited above. On a reading of the aforesaid judgments, the crux of the matter appears to be that once the occupancy rights have been extinguished and the tenant had become full owner thereof, a declaration of occupancy rights after the commencement of the Vesting Act, would be wholly meaningless. Where the question of ownership or title to the land is involved, the jurisdiction would be only with the civil Court and the revenue Court would have no jurisdiction on this score. Mr. Jain has also urged that in these particular cases there was no issue struck with regard to jurisdiction and as such the matter should be remanded to the Financial Commissioner, Haryana, over again to record a positive opinion. I find no force in this argument. While it is true that no issue was struck as suggested by Mr. Jain, yet the question of jurisdiction can be raised at any stage. Moreover, the Financial Commissioner has in his order Annexure P-4 positively gone into the question of jurisdiction, although he has, in my view, arrived at an erroneous conclusion.
6. Mr. Jain has asserted that a reading of Sections 4 and 6 of the Vesting Act, would indicate that even after the vesting of the land in the tenant, something else remains to be done by the revenue authorities and, as such, the jurisdiction of the revenue court is not barred, is also of no avail. The sections afore-mentioned deal only with the determination of compensation which is to be paid to the landlord on account of his land being taken away and vesting in the tenant, and has nothing to do with the question as to the ownership or title to the property. Mr. Jain has further argued that the suit filed by the respondents indicated that they were seeking a declaration of their rights of occupancy tenant and not claiming ownership of the land under their tenancy and, as such, the civil Court had no jurisdiction in the matter. This point has substantially been dealt with by me in the earlier part of the judgment, but suffice it to say that the ultimate relief that the respondents were seeking before the authorities under the Act was regarding ownership and the mere fact that the terminology used was inaccurate, would not make any difference and technicalities would not be allowed to stand in the way on a matter of jurisdiction.
7. The last argument raised by Mr. Jain on behalf of the respondents is that this Court should take recourse to Section 100 subsection (3) of the Act, and not interfere in the concurrent findings of fact accorded by the revenue Court. He has urged on the basis of Amin Chand’s case (supra) that this Court should direct that the decree of the revenue Courts be made enforceable between the parties. This. argument, too, is also of no avail. Section 100 sub-section (3) which was referred to by the learned counsel, is reproduced below : –
“100. Power of High Court to validate proceedings held under mistake as to jurisdiction.-In either of the following cases, namely :-
xx xx xx
xx xx xx
(3) If it appears to the High Court, otherwise than on submission of a record, under subsection (1) that a civil Court under its control has determined a suit of a class mentioned in Section 77 which under the provisions of that section should have been heard and determined by a revenue court, the High Court may pass any order which it might have passed if the record bad been submitted to it under that sub section".
The sine qua non for the exercise of power of the High Court under the aforesaid section, as would be apparent, is that the civil Court should have passed the decree which is under challenge. That was so in Amin Lai's case (supra) However, in the cases before me, the matter has been decided by the revenue courts and, as such, the aforesaid section can have no applicability.
8. For the reasons recorded above, the petitions are allowed, the orders annexures P-l to P-4 are quashed and the parties are relegated to the Civil Court in case they feel so inclined. There will, however, be no order as to costs.