Judgement Appeal (No. 135 of 1936), by special leave, from a decree of a Division Bench of the High Court (May 16, 1934), reversing a decree of a single judge of the High Court (October 28, 1930), which had affirmed a decree of the District Judge of Attock (October 24, 1928) affirming a decree of the Subordinate Judge of Attock (November 25, 1927). On August 9, 1925, the appellant, Sardar Mohammad Nawaz Khan, the principal proprietor of the village Kot Fat eh Khan, in the district of Attock, in the Punjab, instituted a suit in the Court of the Assistant Collector of Attock (the Court of the Revenue Assistant) to recover from one Mahant Parkasha Nand, the mahant of an old shrine known as Deri Baba Than Singh, the sum of Rs.28 in respect of haq buha (door tax) which he claimed to be due as a village-cess payable to him by non-proprietors in the village in accordance with the wajib-ul-arz prepared at the time of the settlement in 1904. The defence was (inter alia) that the Revenue court had no jurisdiction; and that he (the mahant) was not a non-proprietor within the meaning of the wajib-ul-arz. On June 13, 1927, the Revenue Assistant made a decree in favour of the appellant for the amount claimed. Against that decree an appeal was lodged in the Court of the Collector of the Attock District. That appeal was dismissed on December 9, 1927. In the meantime the mahant, on January 5, 1926, had filed the suit out of which the present appeal arose in the Court of the Subordinate Judge of Attock, asking for a declaration that he was not liable to pay haq buha to the appellant because (inter alia) he did not belong to the class from whom haq buha within the meaning of the wajib-ul-arz could be demanded. On November 25, 1927, the Subordinate Judge held that haq buha was a customary due and a village-cess within the meaning of s. 4 (12.) of the Punjab Tenancy Act, 1887, leviable by the appellant alone as the proprietor from all non-pro prietors of the village personally and individually. He further held that the mahant was a non-proprietor, and as such liable to pay. The suit for a declaration was accordingly dismissed. He further held that the mahant was a non-proprietor, and as such liable to pay. The suit for a declaration was accordingly dismissed. The mahant then appealed to the Court of the District Judge of Attock, who held that the appellants suit was rightly filed in the Revenue court which had exclusive jurisdiction to decide not only whether the suit was for a sum payable on account of a village-cess, but also whether the mahant was liable to pay that cess. The District Judge thus affirmed the decree of the Subordinate Judge; he added, however, that mahants hold a peculiar position rendering it unlikely that they would have been treated similarly to private non-proprietary residents in the village.” In the result he dismissed the appeal. The mahant had died during the pen dency of the appeal to the District Judge, and one Bhagata Nand was substituted on the record in his place. A second appeal against the decree of the District Court was dismissed by the High Court (Johnstone J.), who confirmed the judgment of the District Court that the civil court had no jurisdiction. On a further appeal under cl. 10 of the Letters Patent to a Division Bench of the High Court (Tek Chand and Monroe JJ.) it was held that the civil court had jurisdiction to entertain the suit, and that in view of the finding of the District Judge that the mahant was treated differently from other residents and was never asked to pay haq buha, they granted the declaration sought and decreed the suit. The appeal is reported at ( 1934) I. L. R. 16 Lah. 204. 1938. May 3, 5. J. M. Gover K.C. and J. E. Godfrey for the appellant. There are two issues involved (a) Whether the Subordinate Judge of Attock ever had jurisdiction at all to determine the case; and (b) 4 Law. Rep. 65 Ind. App. 301 ( 1937- 1938) Sardar Mohammad Nawaz Khan V. Bhagata Nand 96 the question of res judicata. The substantial question is that of jurisdiction. The mahants action for a declaration that he was not liable to pay haq buha to the appellant raised exactly the same question that had been determined in the appellants suit in the Revenue court. There was the rather anomalous position that the actions went on in the Revenue and the civil courts, both determining in effect the same thing. The mahants action for a declaration that he was not liable to pay haq buha to the appellant raised exactly the same question that had been determined in the appellants suit in the Revenue court. There was the rather anomalous position that the actions went on in the Revenue and the civil courts, both determining in effect the same thing. This appeal is in the civil action. In the civil court proceedings the substantial defence was that the court had no jurisdiction it was also contended that in any case the matter was res judicata by the time the civil action came to be heard. The basis of that plea was that the jurisdiction in regard to this particular kind of case is given exclusively to the Revenue court by the Punjab Tenancy Act (XVI. of 1887). At the moment there is an effective judgment of the Revenue court in the appellants favour determining that the mahant is liable to pay this amount to him; and, on the other hand, there is what appears to be an effective judgment of the civil court of Appeal determining that the mahant is not liable [Sect. 4 (12.) and s. 77, sub-s. 3 (j) of the Punjab Tenancy Act, 1887, were read]. It is clear from cl. (j) that the action brought by the present appellant in the Revenue court was a suit "for sums payable "on account of village-cesses "—assuming that haq buha is a cess, and it has never been disputed. The whole section must be read together, and it is reasonably clear that the kind of suit dealt with in cl. (j) is something which goes beyond the actual words of cl. (j). The whole point is whether in this case there was a dispute or matter with respect to which such suit as is mentioned under cl. (j) might have been instituted, and it is submitted that there clearly was, and that therefore, by sub-s. 3 of s. 77, "no other court shall take cognisance." The civil courts, therefore, never could have had jurisdiction. At the time when the civil action was instituted by the mahant it did involve a dispute or matter with respect to which any such suit as mentioned in cl. (j) might have been instituted. At the time when the civil action was instituted by the mahant it did involve a dispute or matter with respect to which any such suit as mentioned in cl. (j) might have been instituted. It undoubtedly involved not only “any dispute or matter," but the identical dispute or matter in respect of which not only a suit might be instituted, but in respect of which a suit had been instituted, and the identical point on which the appeal in the final Court of Appeal ultimately turned, namely, the question whether the mahant occupied a unique position for the purposes of it being considered whether he was a non-proprietor or not, was actually raised in the Revenue court itself. The matter cannot be put more admirably than as set out in the judgment of the District Judge. The suit in the civil court was for a declaration, but Gamu v. Karim Khan (43 P. R. 201 (No. 33 of 1908).) shows that a declaratory suit can be brought in the Revenue court under s. 77, sub-s. 3, of the Punjab Tenancy Act, 1887. [Reference was also made to Sheikh Muhammad v. Habib Khan (40 P. R. 221 (No. 67 of 1905).); Raj Sarup v. Hardawari (42 P. R. 451 (No. 95 of 1907).); Shahya v. Karm Khan (42 P. R. 453 (Civil Ref. No. 11 of 1904).); Karm Ilahi v. Sultan Alam (46 P. R. 298 (No. 79 of 1911).); Singh Ram v. Kala (( 1925) I. L. R. 7 Lah. 173.); and Barraclough v. Brown ([ 1897] A. C. 615.).] The plea of res judicata is supported on the ground that the liability of the mahant in the civil action had been decided already by a court of competent jurisdiction in concurrent litigation in the Revenue court. [Counsel was not requred to argue on the res judicata point.] Subba Row for the respondent. The only question now is that of jurisdiction. Civil courts have jurisdiction to entertain any actions unless their jurisdiction is taken away by any special legislation. If that be so, it is submitted that s. 77, sub-s. 3 (j), must be construed strictly, and one must see how far the power of the civil courts to entertain suits of the nature here in question is taken away by the words of the section. It is submitted that cl. If that be so, it is submitted that s. 77, sub-s. 3 (j), must be construed strictly, and one must see how far the power of the civil courts to entertain suits of the nature here in question is taken away by the words of the section. It is submitted that cl. (j) only contemplates cases where there is a dispute between a landlord and tenant, or between a proprietor and a non-proprietor, as to these cesses, and as to sums involved, but that any other question arising between them as to the determination of their respective legal rights is a matter which is not covered by cl. (j). The amount in the present case could have been recovered only in the Revenue court; but the matter of liability can only be heard and determined by the civil court, and the Revenue court has no jurisdiction. 4 Law. Rep. 65 Ind. App. 301 ( 1937- 1938) Sardar Mohammad Nawaz Khan V. Bhagata Nand 97 [LORD ROCHE With regard to your contention that the Revenue courts can only deal with questions of amount, all the cases which have been cited by Mr. Gover decided that matters much beyond the questions of amount may be determined by the Revenue courts.] What are the classes of persons liable to pay, and the question whether the custom exists, are within the jurisdiction of the Revenue courts; but whether a person is of such a class the Revenue courts have no jurisdiction to determine. There was no reply. May 27. The judgment of their Lordships was delivered by SIR GEORGE RANKIN. The appellant, Sardar Mohammad Nawaz Khan, a Muslim, is the principal proprietor of the village Kot Fateh Khan, in the district of Attock, in the Punjab. According to the wajib-ul-arz prepared at the time of the settlement of 1904 the appellant, as proprietor, is entitled to realize a tax or cess called haq buha (door-tax). The appellant, Sardar Mohammad Nawaz Khan, a Muslim, is the principal proprietor of the village Kot Fateh Khan, in the district of Attock, in the Punjab. According to the wajib-ul-arz prepared at the time of the settlement of 1904 the appellant, as proprietor, is entitled to realize a tax or cess called haq buha (door-tax). So far as material the entry is as follows "Haq buha is realised annually from the kamins or non-proprietors living inside the abidi of our village at a rate ranging from Rs.1 to Rs.2 ....Haq buhi is taken by Sardar Mohammad Nawaz Khan only." The original dispute in the present case was whether the appellant was entitled to claim this tax from one Parkasha Nand, who was the head or mahant of an old shrine, called Deri Baba Than Singh, situate in the village, and who has died pending the litigation. The claim is not made against the shrine as an institution, or against any mahant by reason of his office, but is a claim preferred against the individual as being a non-proprietor of the village residing therein. Chapter VII of the Punjab Tenancy Act (XVI. of 1887) deals with jurisdiction and procedure, and the material parts of sub-s. 3 of s. 77 therein, and of the definition section (s. 4) of the Act, are as follows— "Sect. 77. * * * * "(3.) The following suits shall be instituted in and determined by Revenue courts, and no other Court shall take cognisance of any dispute or matter with respect to which any such suit might be instituted— "Provided that— "(1.) Where in a suit cognisable by and instituted in a Civil Court it becomes necessary to decide any matter which can under this sub-section be heard and determined only by a Revenue Court the Civil Court shall endorse upon the Plaint the nature of the matter for decision and the particulars required by Order VII., rule 10, Civil Procedure Code, and return the Plaint for presentation to the Collector. * * * * * " (j) Suits for sums payable on account of village-cesses or village-expenses . . . ." "Sect. 4.—In this Act, unless there is something repugnant in the subject or context— 4 Law. Rep. 65 Ind. App. * * * * * " (j) Suits for sums payable on account of village-cesses or village-expenses . . . ." "Sect. 4.—In this Act, unless there is something repugnant in the subject or context— 4 Law. Rep. 65 Ind. App. 301 ( 1937- 1938) Sardar Mohammad Nawaz Khan V. Bhagata Nand 98 * * * * * "(12.) Village-cess includes any cess, contribution or due which is customarily leviable within an estate and is neither a payment for the use of private property or for personal service nor imposed by or under any enactment for the time being in force...." In addition to these provisions, it may be noticed that the Act empowers a Revenue court (with the sanction of the court to which it is immediately subject), if it considers that a question is more proper for decision by a civil court, to require any party to a proceeding in the Revenue court to institute a suit in the civil court for a decision on the question (s. 98). The Act also empowers either civil or Revenue court to refer to the High Court questions as to jurisdiction (s. 99), and contains provisions enabling the High Court, where a suit has been determined by a court of the wrong class, to order that the decree be registered in the court which had jurisdiction (s. 100). On August 9, 1925, the appellant sued Parkasha Nand in the court of the Revenue Assistant at Attock for Rs.28— being two rupees for each of the fourteen years 1912-25 inclu sive—on account of haq buha, which the plaint alleged to be a village-cess realizable from Parkasha Nand in terms of the wajib-al-arz, on the ground that he was a non-proprietor living in the abadi of the village. The claim for fourteen years arrears was said to be saved from limitation by reason of the appellants minority. Parkasha Nand disputed that he lived in the abadi, or was a non-proprietor, or was within the class of persons liable to the tax, or that he or his predecessors had ever paid or been asked to pay it. He also disputed the jurisdiction of the Revenue court. Parkasha Nand disputed that he lived in the abadi, or was a non-proprietor, or was within the class of persons liable to the tax, or that he or his predecessors had ever paid or been asked to pay it. He also disputed the jurisdiction of the Revenue court. On November 17, 1925, the Revenue Assistant held that he had jurisdiction and on January 5, 1926, Parkasha Nand brought in the court of the Subordinate Judge at Attock the suit out of which the present appeal has arisen. At that date the suit in the Revenue court had not been decided, but Parkasha Nand referred to it in his plaint, and asked for a declaration from the civil court that he was not liable to pay haq buha. After unsuccessful endeavours by him to obtain a stay of proceedings in the Revenue court, judgment therein was given on June 13, 1927. The Revenue Assistant held that the custom was valid, old and uniform, and that Parkasha Nand was a non-proprietor, having a particular house as residence in the village; he also believed the evidence of a number of old sadhus connected with the shrine to the effect that previous mahants had paid the tax, and held that there was no evidence to prove that Parkasha Nand was exempt. An appeal was taken to the Collector from this decision, but before that appeal was decided the Subordinate Judge, on November 25, 1927, having refused to stay the civil suit, gave judgment against Parkasha Nand upon the merits, holding that haq buha was a customary cess, and that Parkasha Nand was liable to pay it; but finding that neither he nor his predecessors had paid it in the past. In the next month (December 9, 1927) the Collector dismissed his appeal from the Revenue Assistant, holding that haq buha was a village-cess, and that it had been paid in the past by previous mahants. Parkasha Nand, having appealed to the District Judge against the Subordinate Judges dismissal of his suit for a declaration, died while this appeal was pending, and one Bhagata Nand was appointed by the District Judge (September 10, 1928), to be the appellants representative for the purposes of the appeal. Parkasha Nand, having appealed to the District Judge against the Subordinate Judges dismissal of his suit for a declaration, died while this appeal was pending, and one Bhagata Nand was appointed by the District Judge (September 10, 1928), to be the appellants representative for the purposes of the appeal. On December 24, 1928, the District Judge dismissed the appeal, holding that the civil courts jurisdiction was ousted by sub-s. 3 of s. 77 of the Act of 1887, and that in any case the matter was res judicata by reason of the decision of the Revenue courts. On the merits, he rejected the contention that Parkasha Nand was not a non-proprietor or was not resident in the village, but he held that neither Parkasha Nand nor any predecessor of his had ever paid haq buha, and that the custom did not apply to a person holding so peculiar a position as the mahant of the shrine. From this decree a second appeal was preferred by Bhagata Nand to the High Court at Lahore; that was heard and dismissed by Johnstone J. on October 28, 1930, on the ground that the suit was not cognizable by a civil court. A Letters Patent appeal having been brought by leave of the learned judge to a Division Bench (Tek Chand and Monroe JJ.) they on May 16, 1934, 4 Law. Rep. 65 Ind. App. 301 ( 1937- 1938) Sardar Mohammad Nawaz Khan V. Bhagata Nand 99 reversed all the previous decrees in the suit; held that the suit was within the jurisdiction of the Subordinate Judge; and as the District Judge had found as a fact that the village custom did not apply to a mahant of the shrine, they held that the suit for a declaration must succeed. Thereafter this appeal to His Majesty was brought by special leave from the decree of the Division Bench, and by an order of the High Court, dated April 6, 1936, the Gurdwara Committee, Panja Sahib, was appoited to contest the appeal in place of Bhagata Nand for reasons to which their Lordships see no need to refer. Mr. Thereafter this appeal to His Majesty was brought by special leave from the decree of the Division Bench, and by an order of the High Court, dated April 6, 1936, the Gurdwara Committee, Panja Sahib, was appoited to contest the appeal in place of Bhagata Nand for reasons to which their Lordships see no need to refer. Mr. Gover, in his argument for the appellant, took two points (1.) that the suit brought in the court of the Subordinate Judge for a declaration that the appellant was not entitled to demand any amount from Parkasha Nand as haq buha was one of which that court was forbidden to take cognizance by the terms of sub-s. 3 of s. 77 above quoted; (2.) that the matter was concluded by the decision of the Revenue court—that is, res judicata. Their Lordships do not find it necessary to deal with the second point. On the first point, their Lordships are of opinion that the appellants contention is right, but they will preface their decision by stating that had the suit brought in the civil court been a suit to declare that haq buha was not a village-cess within the meaning of the Act of 1887, and that the Revenue courts had not jurisdiction in respect thereof, such a suit could not have been regarded as incompetent. On principle it is for the civil court to determine in the last resort the limits of the powers of a court of special jurisdiction, and no statutory provision to the contrary has been drawn to their Lordships attention in the present case. It is, however, found, or assumed, by all the courts in the present case that haq buha is leviable in this village by custom, and is therefore a village-cess. Johnstone J., in his judgment, states that in his court this was agreed, and the Division Bench clearly proceeded on that view. Haq buha being a village-cess, s. 77 not only requires that a suit to recover sums payable on account thereof should be brought in the Revenue court, but forbids any other court to take cognizance of " any dispute or matter with respect "to which any such suit might be instituted.” Their Lordships see no way of interpreting these words which would exclude from their scope the question of the liability of Parkasha Nand, or any other person, to pay the cess. His suit was not a " suit for a sum payable " within cl. (j), because it was a suit for a declaration negativing his liability, but it raised a matter with respect to which a suit under cl. (j) might have been instituted. The purpose of the prohibition in sub-s. 3 is to prevent claims which are intended to be decided by the Revenue court being in effect carried before the civil court by altering the form in which the matter is raised. As many matters are brought under sub-s. 3 of s. 77 it is important to notice that the mere fact that the dispute or matter is one which might arise incidentally in a suit of the character mentioned in such a clause as (j) is not sufficient to exclude it from the jurisdiction of the civil court. For example, the ordinary suit in the civil court for declaration of title to immovable property would not become incompetent merely by reason that one consequence of the plaintiff getting a decree would be that, as a proprietor, he could not be charged with village-cess. In such a title suit the " dispute or matter " of the action would not be the question of the plaintiffs liability to village-cess. Of the present case it is clear that the matter in dispute is the very thing with respect to which a suit of the class described in (j) would be concerned as its subject-matter. Their Lordships are in agreement with the Full Bench decision of the Chief Court of the Punjab in Gamu v. Karim Khan. (43 P. R. 201 (No. 33 of 1908).) The claim (according to the report) was for a declaration that the plaintiffs, as occupancy tenants, were not liable to pay haq buha, and Robertson J., delivering the judgment of the Court, observed (Ibid. 202.) "Liability for the payment of a cess alleged "to exist in the village is the subject-matter of the dispute, and the dispute or matter is one in regard to which a suit could be brought under s. 77, sub-s. 3 (j). We think that a suit like the present for a declaration is of the same nature as a reply to a suit under s. 77, sub-s. 3 (j), which suit is clearly triable by a Revenue court; and 4 Law. Rep. 65 Ind. App. We think that a suit like the present for a declaration is of the same nature as a reply to a suit under s. 77, sub-s. 3 (j), which suit is clearly triable by a Revenue court; and 4 Law. Rep. 65 Ind. App. 301 ( 1937- 1938) Sardar Mohammad Nawaz Khan V. Bhagata Nand 100 the mere fact that the form of the suit is one for a declaration that the cess is not payable, instead of an assertion that a definite sum is payable by way of cess, does not alter its character, or give the civil courts jurisdiction, when the dispute or matter itself is clearly one as to which a suit could be brought under s. 77, sub-s. 3 (j)." This principle was not followed in the present case by the learned judges who heard the Letters Patent appeal, partly because of other decisions, but chiefly because the Full Bench found in a case which had been previously decided by one of its members, Sheikh Muhammad v. Habib Khan (40 P. R. 221 (No. 67 of 1905).), a distinction which they deemed to be applicable to the present case. In that case the civil court had been held competent to entertain a suit for a declaration that certain village dues were recoverable only from kamins who construct houses on land belonging to proprietors, and that the plaintiffs, as owners of their houses and cultivators, were not liable therefor. The learned Chief Judge considered that (Ibid. 222.) " the dispute "must be....closely allied to the suit, in this case a suit "for a sum payable,” and that this could not be said of a suit for a declaration that the plaintiffs " shall be lifted out "of a category affected by a clause in the wajab-ul-arz under "which they are liable to pay kamiana." The Division Bench in the present case regarded the Full Bench decision as explained by the fact that the plaintiffs in the Full Bench case had asked for a declaration that haq buha was not leviable at all in the village—a circumstance which they discovered from the record. Their view was that the civil court has jurisdiction where the plaintiffs claim a declaration that, though certain cesses are payable, the plaintiffs are not liable to pay by reason of not belonging to classes from which payment can be claimed. Their view was that the civil court has jurisdiction where the plaintiffs claim a declaration that, though certain cesses are payable, the plaintiffs are not liable to pay by reason of not belonging to classes from which payment can be claimed. Their Lordships cannot accept this as a sound construction or application of the terms of s. 77, sub-s. 3. If the Revenue court is the only court competent to try a suit for a declaration that no haq buha is leviable at all in the village, it is impossible to hold that the civil court can try a suit for a declaration that the plaintiff is not a member of the class liable therefor. The latter claim is more exactly the counterpart of the suit described in cl. (j) than the former, but both are suits which have for their subject-matter the liability of the plaintiffs for the cess. To lift the plaintiff out of the category of persons liable to the tax according to the village custom is only to hold that the custom does not apply to the plaintiff, or that the plaintiff is not liable for the tax. The decision in Sheikh Muhammads case (40 P. R. 221 (No. 67 of 1905).) is, in their Lordships view, open to the criticism that it permitted the fact that the plaintiffs suit was for relief of a very different kind from that mentioned in cl. (j) to obscure the fact that what the Act calls " the "dispute or matter " was the same in both. A suit to take the plaintiff out of any other category than that defined by a custom as to village-cesses or expenses would not be rendered incompetent by the section so far as cl. (j) is concerned; and if the suit was not a suit about the custom, or the plaintiffs liability under the custom, it would be equally competent notwithstanding that the plaintiffs rights in the subject-matter of the suit depended upon his proving something which would be inconsistent with his being liable under the custom. After all, the same " category " may be employed for many different purposes. Their Lordships are of opinion that Sheikh Muhammads case (40 P. R. 221 (No. 67 of 1905).), and the cases which follow it (e.g., Singh Ram v. Kala (( 1925) I. L. R. 7 Lah. 173.)), should be overruled. After all, the same " category " may be employed for many different purposes. Their Lordships are of opinion that Sheikh Muhammads case (40 P. R. 221 (No. 67 of 1905).), and the cases which follow it (e.g., Singh Ram v. Kala (( 1925) I. L. R. 7 Lah. 173.)), should be overruled. It was suggested in argument for the respondents that cl. (j) must be interpreted as applying only to cases where the sole dispute is as to the amount payable, but this is not consistent with the language of the statute, or with the decisions. What cl. (j) characterizes is a class of claim; whether a suit comes within it or not does not depend on the defence taken to the claim. Their Lordships think it convenient to notice that the sole question before the civil, as before the Revenue, court, was the liability of Parkasha Nand, deceased, to pay the cess in his lifetime. Neither the shrine nor the office of mahant, nor any successor of Parkasha Nand was a party to either suit or is bound by the result. If in the future any claim for the cess be made against a 4 Law. Rep. 65 Ind. App. 301 ( 1937- 1938) Sardar Mohammad Nawaz Khan V. Bhagata Nand 101 successor of Parkasha Nand it will presumably be against him personally, and as an individual, and he will not be precluded from contesting it anew. In view of the divergence of opinion disclosed by the present case upon the question whether a mahant of such a shrine as Deri Baba Than Singh is within the custom of this village, any Revenue court will doubtless scrutinize the evidence as to the scope of the custom with especial care, unless, indeed, it sees fit to use its powers under s. 98. Their Lordships will humbly advise His Majesty that this appeal should be allowed, and the suit dismissed with costs throughout.