Baraik Karan Singh vs Bikram Sahu and Others

Courtney-Terrell, C.J.—This case raises a point of procedure under the Chota Nagpur Tenancy Act. The plaintiff sued tenants for rent the amount of the claim being under Rs. 100. The appellant before us who is a third party intervened in the suit under the procedure provided by Section 177 of the Act and asserted that he (the intervenor) had actually and in good faith received and enjoyed the rent before and up to the time of the institution of the suit.

The suit was tried under the section before the Deputy Collector who delivered his decision holding that the intervenor had made out his claim and had in fact bona fide received the rent. The Deputy Collector went beyond the functions assigned to him by Section 177 and observed that in the circumstances the relationship of landlord and tenant had not been established by the plaintiff and used expressions which might be taken as a decision that the intervenor was the rightful landlord. Now the section clearly prevents ony question of title being investigated in a rent suit of this character and the proviso to the section clearly states that a decision under the section shall not affect the right of any party who may have a legal title to such rent to establish such title by suit in a civil Court if instituted within one year from the date of the decision.

From this decision the landlord plaintiff appealed and under the impression which is an excusable impression in the circumstances, that the decision had affected the question of title as between himself and tenants he appealed to the Judicial Commissioner. The section which regulates appeals under the Chota Nagpur Tenancy Act is Section 218 and under Sub-section (2) of that section an appeal lies from the Deputy Collector to the Deputy Commissioner, but in questions of title an appeal lies to the Judicial Commissioner and for this reason the landlord, as I have said, preferred his appeal to the Judicial Commissioner. The Judicial Commissioner proceeded to deal with the case and apparently had not his attention called to the contention that the appeal should have lain not to him but to the Deputy Commissioner. He decreed the suit and decided against the intervenor.

The intervenor carried the case on appeal to a single Judge of this Court and raised the contention that the appeal to the Judicial Commissioner was incompetent and that u/s 218(2) the appeal should have lain to the Deputy Commissioner. Wort, J., who heard the appeal, was of opinion that the contention of the appellant was sound, but he felt himself constrained by the judgment of a single Judge of this Court which purported to follow a decision of the Calcutta High Court. That judgment is one by Adami, J., in the case of Janki Chowdhury and Another Vs. Sambodh Kurmi and Others, , In that case the learned Judge came to the following conclusion. He agreed that Section 177, Chota Nagpur Tenancy Act, precluded the Deputy Collector from going into any question of title but inasmuch as in that case the judgment of the Deputy Collector had (as indeed in the case before us) gone beyond the mere question of fact which it was incumbent upon him to decide and purported to decide further a matter of title, the learned Judge considered that an appeal would lie not to the Deputy Commissioner but to the Judicial Commissioner as involving a question of title. It is to be noted that Adami, J., based his decision upon a judgment of a Division Bench of the Calcutta High Court in the case of Lall Bhim Singh v. Guman Ghanjhu 1 CWN 341 where a similar view had been taken and therefore it is necessary to examine the decision of the Division Bench of the Calcutta High Court.

It has been pointed out by a learned commentator with reference to an Act which at that time corresponded to the present Chota Nagpur Tenancy Act and contained a section similar to Section 177 of the present Act, that the decision in Lall Bhim Singh v. Guman Ghanjhu 1 CWN 341 was apparently arrived at without a proper examination of the authorities which preceded it and the attention of the learned Judges was not called to those authorities and notably to the decision of the Full Bench of the Calcutta High Court in the case of Syed Rameedoddeen v. Syed Maulvi Razeoodeen Ahmed 3 W.R. (Act 10 Rulings 21) where the precise point was examined.. I may mention that the present Section 177 corresponds to Section 77 of Act 10 of 1859 and the learned Judges had to decide the point which in fact has to be decided by us. The following passage from their judgment may be quoted:

It has been contended before us that in art inquiry u/s 77 of the right to receive rent is investigated; that this right is an interest in land and that therefore an appeal lies to the Judge, but we cannot assent to this reasoning. We think that u/s 77 the only matter enquired into is the fact of the actual receipt and enjoyment of rent before and up to the time of the commencement of the suit, that this fact is totally unconnected with the legal title to or any interest in the land or with the right to receive the the rent which is by the proviso of the section reserved for inquiry in the civil Court, and that consequently no appeal lies to the Judge under Sections 153 and 160, Act 10 of 1859.

There is no doubt that had the attention of the learned Judges whose judgment is reported in the case of Lall Bhim Singh v. Guman Ghanjhu 1 CWN 341 been drawn to this decision the case would have been decided otherwise and consequently the judgment of Adami, J., would have been other than it is. That the view I have taken is the sound one is also indicated by the judgment of a Division Bench of this Court in the cases of Lachminarain Agarwala v. Thakurhari Dutta AIR 1919 Pat. 90 where the opinion is expressed that the functions of the Deputy Collector u/s 177, Chota Nagpur Tenancy Act, are restricted to a decision upon the question of fact as to who had actually in good faith received and enjoyed rent before the institution of the suit.

In these circumstances I feel myself unconstrained by the judgment of Adami, J., and would not follow his decision nor the decision of the Calcutta High Court in the case of Lall Bhim Singh v. Guman Ghanjhu 1 CWN 341 to which I have referred. In my opinion if the Deputy Collector goes outside the functions provided for him in the section his decision does not bind the authorities in the least and cannot be used as res judicata in any subsequent title suit which may be brought under the proviso at the end of that section. Indeed if the purported decision on a question of title were to be held to bind the parties it would render the proviso at the end of the section a nullity. Otherwise if a suit were to be brought as contemplated by the proviso a party would be able to raise the defence of res judicata and that is clearly not the intention of the section.

I would accordingly allow this appeal holding that the appeal to the Judicial Commissioner was misconceived and would direct that the appeal which was in fact lodged before the Judicial Commissioner should be placed before the Deputy Commissioner for decision and in view of the fact that the appellant did not raise the question of jurisdiction before the Judicial Commissioner I would deprive him of the costs of the appeal to the learned Judge of this Court and of this Letters Patent Appeal.

Fazl Ali, J.

I agree.