Bara Hapan Manjhi vs Gopi Manjhi

Dawson-Miller, C.J.—The facts of this case as they appear from the judgment of the Munsif and of the Subordinate Judge oh appeal are shortly as follows: The plaintiff took settlement of certain lands from the Equitable Coal Company in mauza Nimlikuri in 1322 B.S. He remained in possession of the lands for about two years. Thereafter being laid up with an attack of rheumatism he was compelled to leave the locality and go elsewhere in the interests of his health. He thereupon placed the lands in question in charge of the defendants to look after them on his behalf and if necessary to further his interests in the settlement operations which were about to take place. When he returned after three years the survey attestation had already taken place and the defendants had apparently had their own names recorded in the survey record as tenants in place of the plaintiff. He thereupon demanded recovery of the lands but the defendants refused to quit contending that the lands had been theirs all along and that the plaintiff was not and never had been entitled to them.

The learned Munsif of Raghunathpur before whom the case came for trial in November 1925 held that a suit was barred by reason of the provisions of Section 139(5) and Section 139A, Chota Nagpur Tenancy Act. The former section provides that certain suits and applications shall be cognizable by the Deputy Commissioner, and shall be instituted and tried or heard under the provisions of the Act and shall not be cognizable in any other Court, except as otherwise provided in the Act. The suits there referred to include in Sub-section (5).

All suits and applications to recover the occupancy or possession of any land from which a tenant has been unlawfully ejected by the landlord or any parson claiming under or through the landlord.

Section 139A provides that:

No Court shall entertain any suit, concerning any matter in respect of which an application is cognizable by the Deputy Commissioner u/s 189, and the decision of the Deputy Commissioner on any such application shall, subject to the provisions of this Act relating to the appeal, be final.

The learned Munsif considered that this was a case of ejectment within the meaning of Section 139(5).

The case then went on appeal to the Subordinate Judge. The learned Judge took the view that the suits referred to in Sub-section (5), Section 139 were suits which claimed merely a right of possession and did not raise any question of title for the determination of the Court. His view apparently was that the suits referred to in the Sub-section were possessory suits only, as are mentioned in Section 9, Specific Relief Act, that is to say, suits where possession alone is claimed apart altogether from any question of title.

In answer to that finding of the learned Subordinate Judge the defendants in appeal before this Court have referred to the case of Dhuplal Sahu Vs. Bhekha Mahto, , a decision of a Division Bench of this Court.

In that case the learned Judges are reported to have said that a suit in ejectment falling within Section 139(5) is nevertheless barred because it also seeks a declaration of title as well as delivery of possession of the property. In that case the learned Judges considered that the decision on the question of title was merely ancilliary to the main object of the suit, namely, possession of the land. We are told that there are other decisions of this Court which conflict with that decision. Whether that be so or not it is not necessary for us to determine, for, in my opinion, the suit in question is not one falling within Section 139(5). It is not in fact a suit for the recovery of possession of any land from which a tenant has been unlawfully ejected.

The tenant in this case was never ejected at all. What he did was, being in possession of the land, he gave up possession voluntarily to the defendants. He remained away for some years, then returned and when he tried to get back possession the defendants refused to give it up. That in my opinion, is not a case of ejectment. It follows that the result at which the learned Subordinate Judge, arrived was, in my opinion, the correct result. He was therefore justified in sending back the case to the Munsif to be tried upon the merits.

This appeal will be dismissed with costs.

Miscellaneous appeals Nos. 224 and 225 of 1926 were put up to be heard together with this appeal. The facts in each case are similar and the judgment just delivered will govern the other two appeals. There will be one set of costs.

Adami, J,

I agree.