Chinta Sahu and Another vs Mt. Budhan Sahun

Mullick, J.—This application for revision which is preferred by the plaintiffs arises out of the decision of the learned Judicial Commissioner of Chota Nagpur, affirming the decision of the Munsif of Ranchi declaring that the plaintiffs'' suit was not entertainable by the civil Court.

It is obvious that the question of jurisdiction must be decided solely with reference to the case made in the plaint.

The plaintiffs allege in their plaint that they are raiyats and that the defendant''s husband hold two plots as their dar-raiyat; that the defendant''s husband died eight years ago and the defendant is still in possession; and that the plaintiffs served her with notice to quit the holding on the expiry of the year 1982 Sambat and that the defendant having failed to quit they are entitled to eject her.

It is not stated in the plaint whether the tenancy was created before or after 1903. If it was created after 1903 Section 46, Chota Nagpur Tenancy Act, as amended in 1920, does not apply. Section 46 enacts that no transfer by a raiyat of his right in his holding or any portion thereof by lease for a period exceeding five years shall be valid to any extent. It also enacts that at any time within three years after the expiration of the period for which a raiyat has under that section transferred his right in his holding, or any portion thereof, the Deputy Commissioner may, in his discretion, on the application of the raiyat, put the raiyat into possession in the prescribed manner.

It was contended by the defendant before the Courts below that the transfer came within the provisions of this section and that an application lay to the Deputy Commissioner for the ejectment of the under-raiyat.

It was pointed out that Section 139, Chota Nagpur Tenancy Act, enacts that all suits and applications under the Act to eject any tenant of agricultural land or to cancel any lease of agricultural land shall not be cognizable in any other Court except that of the Deputy Commissioner; and that Section 139-A of the Act makes the exclusion of the civil Court still more certain by enacting that, subject to the provisions of Ch. 12 (with which we are not concerned), no Court, and, therefore, also no civil Court, shall entertain any matter in respect of which an application is cognizable by the Deputy Commissioner under the provisions of Section 139.

It is accordingly contended that Sections 139 and 139-A completely exclude the jurisdiction of the civil Court in the present suit as an application lay to the Deputy Commissioner under Clause (4), Section 46.

The question then is whether Clause (4), Section 46, applies to the plaintiff''s case.

As the plaintiffs do not allege that the tenancy was created before 1903 we must assume that it was created after that date. The argument addressed to me, that it is a tenancy at least fifty years old, cannot be entertained.

It is, however, next urged that this was not a tenancy for a term. The plaint certainly does not state that the tenancy was for any period. That being so, in my opinion, the plaintiffs were not entitled to apply to the Deputy Commissioner on the ground that they were entitled to re-enter on the expiry of the term of the lease. "But," says the defendant.

even if the tenancy were one for an indefinite period it cannot by operation of law subsist for more than five years after its commencement and the landlord would, therefore, be entitled to apply under Clause (4), Section 46, upon the expiry of this period of five years.

In my opinion Clause (4), Section 46, must be strictly construed; and, as it does not provide for tenancies of indefinite duration which have been determined by operation of law, I do not think that it can be invoked by the landlord.

From the plaint it would seem that the tenancy was still running when notice to quit was served. The plaintiffs allege that they are entitled to eject at any time simply by determining the tenancy irrespective of the fact whether the tenancy is one for a term or for an indefinite period. For such a claim Clause (4) makes no provision and, therefore, the plaintiffs were not entitled to seek the assistance of the Deputy Commissioner.

What remedy, then, are the plaintiffs entitled to? They say that they are entitled to apply to the civil Court for relief and I think that this contention is correct.

The Chota Nagpur Tenancy Act makes no provision for suits to eject under-raiyats, but it does make provision for suits to eject raiyats and non-occupancy raiyats. All that it provides for the ejectment of under-raiyats is that the Deputy Commissioner may entertain an application for the ejectment of an under-raiyat under the circumstances provided in Clause (4), Section 46. If the claim made by the landlord is such that he cannot ask the Deputy Commissioner to intervene then the jurisdiction of the civil Court is not ousted.

Therefore, in this case, as Section 46 does not apply, Sections 139 and 139-A do not affect the jurisdiction of the civil Court.

Reliance, however, is placed upon Madhab Poddar Vs. Lall Singh Bhumij, It is contended that in that case the general rule was laid down that no raiyat could bring a suit for the ejectment of his under-raiyat in the civil Court and that the only mode of ejecting an under-raiyat was that provided by Section 46 by the Deputy Commissioner. In my opinion no such general rule was laid down. It was assumed in Madhab Poddar''s case that the incidents of the tenancy were such as to attract the operation of Section 46. It would seem from the report that it was never questioned that the lease was for a term and that the landlord was seeking to eject on the expiry of that term. Here, however, the landlord is not basing his claim on any such ground and, in the circumstances, the jurisdiction of the civil Court is not ousted. Whether the landlord has any right to determine the tenancy of an under-raiyat by mere service of notice is a matter with which we are not concerned. That will have to be decided when the case comes for trial.

It is also to be noticed that here, as the landlord claims that he has determined the tenancy, the defendant being now in the position of a trespasser, the suit is taken out of the provisions of Section 46 and the general law must apply. This ground was not considered in Madhab Poddar''s case.

It was held by a Full Bench of the Calcutta High Court in the case of Jonardun Acharjee v. Haradhun Acharjee 9 W.R. 513, that a landlord could terminate a tenancy without recourse to Section 25, Act 10, 1859, the provisions of which are somewhat similar to Clause (4), Section 46, Chota Nagpur Tenancy Act. That case was followed in Nathuni Ram v. Raja Paresh Nath Singh 14 C.W.N. 297. In Bholanath Mandal v. Chhota Gunaram [1914] 28.I.C. 407, Mr. Justice Teunon held that, notwithstanding the provisions of the Chota Nagpur Tenancy Act, 1908, a raiyat is entitled to eject his under-raiyat for nonpayment of rent after service of notice to quit and that Section 46(4) did not apply to the case.

In my opinion, as Section 46 does not apply to the present case also, the civil Court has the right to take cognizance of it.

The result, therefore, is that the order of the learned Judicial Commissioner of Chota Nagpur will be set aside and the Munsif will be directed to take up the case from the stage at which it was left when he declined to exercise jurisdiction. The petitioners are entitled to their costs throughout. Hearing-fee two gold mohurs.