Abdul Aziz and Another vs Libo Lohar and Another

Wort, J.—This is an appeal from the decision of the Subordinate Judge of Hazaribagh in an action in which the plaintiffs set up their title to certain land over which it was ultimately shown that the defendants had attempted to exercise korkar rights. The first; point which emerged from the case was that the plaintiffs contended on the one hand that the land was in the village of which they were proprietors or part-proprietors, and the defendants on the other hand contended that the land was in another village with which the plaintiffs had no connection; and it would be idle therefore to suggest that no question of title arose: it clearly did.

But the other defence to the action was that the defendants had exercised korkar rights which prevented the success of the plaintiffs in an action for ejectment. Now what happened appears to have been this. The trial Court decided the question of title in favour of the plaintiffs as regards a part of the land the substance of the decision being that the land had been converted for more than two years, and therefore, the plaintiffs in any event were not entitled to succeed. As regards the remainder the finding was that the conversion had come within two years, and an order for ejectment with respect to that part was made. In the appellate Court the Judge declined to decide the question of title as he said it did not arise.

He then proceeded to consider the question of the korkar rights and came to the conclusion in substance that, as the defendants had korkar rights over the land in respect of which the trial Court had refused to give an order for ejectment, and as they were in the process of converting the remainder into korkar, the Court had no jurisdiction to eject them presumably by reason of Section 64(3) of the Chota Nagpur Tenancy Act. Section 139 of the Act sets out the jurisdiction of the Deputy Commissioner as regards the matters named therein, Section 64 of the Act makes provisions as regards the exercise by persons of korkar rights. This section provides in the first instance that written consent of the landlord is required unless in certain exceptions. Then Sub-section (2) raises a presumption of consent in certain circumstances. Sub. Section (3) which is of some importance in this action also provides that consent shall be deemed to have been given if no application is made by the landlord to the Deputy Commissioner to eject the person attempting to exercise korkar rights within a period of two years and, as I have already stated, it appears that on that sub-section the learned Judge has come to the conclusion that the civil Court had no jurisdiction.

Now there is no possible dispute that in those cases'' in which the relationship of landlord and tenant is admitted, the Commissioner has exclusive jurisdiction. It cannot also be disputed that the Commissioner has exclusive jurisdiction in those cases which come under Sub-section (3) of Section 64, but it does remain to be decided what exactly are the cases to which that sub-section refers. There are numerous authorities of this Court and to refer to one only: Chaudhary Gursaran Das v. Parmeshwari Charan 1927 Pat 203, which establishes the principle that when a question of title arises the jurisdiction of the civil Court is not excluded: in other words, the civil Court is competent to decide a question of title.

Now in this case, as I have already held, it is clear that a question of title did arise, and whether the learned Judge in the Court below is right or wrong as regards korkar rights, it is abundantly clear that the question of title was of importance in this case for the reason that, even assuming that the defendants had established their rights, in the state of the allegations of the defendants, it was only by a decision of that question could the defendants know to whom the rent was payable. That in my judgment is the position quite apart, as I have already said, from the question of korkar rights.

In my opinion the decision of the learned Judge of the trial Court was right as regards the korkar rights; and that view I arrive at on the plain meaning of Sub-section (3) of Section 64. The sentence in parenthesis in sub.S. (3) says this:

And no cultivator who is a tenant or resident of a village shall be ejected from land of that village which he has commenced to convert into korkar, otherwise than upon such art application.

Now it has been established by the authorities of this Court that a person does acquire korkar rights although he may not be a tenant of the particular landlord in respect of the land over which he claims those rights. But it seems to me quite clear from the general purposes of the Act and more particularly from the sub-section to which I have referred that the Act contemplates that a person who acquires korkar rights shall be (to use the words of the section) a tenant or resident of the village. Now the section precludes the landlord from recovering possession excepting by an application to the Deputy Commissioner, but that application is to be in respect of the person who is a tenant or resident of the village.

It necessarily follows that if he were to bring an action based upon his title which was disputed and attempt to eject a person who is not a tenant or resident of the village, the civil Court would have jurisdiction. It is difficult of course in this case, on the facts which were alleged by the defendants, to hold that they were residents or tenants of the village; but this question is a matter for the Court below to decide. On the considerations which I have advanced it seems to me that the case must go back to the Subordinate Judge for determination of the question of title of the plaintiffs.

If it be held that the plaintiffs have title and defendants are not residents or tenants of the village and that the plaintiffs have come within a period of two years, then the order of the trial Court in that respect will be confirmed.

The matter will be remanded to be heard and determined according to law. Costs of this appeal will abide the result of the hearing in the Court below.