Churabati and Others vs Suru Devi and Others

Nagendra Prasad Singh, J.—Defendants are the appellants in this second appeal. The suit in question had been filed by the plaintiff for declaration of title and confirmation of possession, in the alternative, for recovery of possession, of the lands fully described in the schedule of the plaint. The plaintiff claimed to have title and possession of the suit land which had been recorded in the name of her father. It was alleged that in the present survey operation some of the lands were recorded under a new khata in the names of defendant Nos. 1 to 3 and 7 to 14. This was wrong and erroneous according to the plaintiff. It was asserted that merely on basis of that entry the defendants have acquired no title because the entry had been made as a result of collusion between the defendants and the survey Amins. The defendants contested the suit denying the title and possession of the plaintiff.

Learned Munsif, on a consideration of the materials on record, held that the plaintiff had title to the suit property and she was in possession thereof. On that finding, he decreed the suit of the plaintiff.

On appeal being filed on behalf of the contesting defendants, learned Subordinate Judge affirmed the finding recorded by the learned Munsif. The appeal filed on behalf of the defendants was dismissed.

Mr. S.B. Sinha, learned counsel appearing for the defendant-appellants, did not challenge the findings of the two courts below on merit. He, however, urged that the suit filed by the plaintiff itself was not maintainable in view of Section 87 of the Chotanagpur Tenancy Act (hereinafter to be referred to as ''the Act'') The relevant part of Section 87 of the Act is as follows:--

Institution of suits before Revenue-officer--

(1) In proceedings under this Chapter a suit may be instituted before a Revenue Officer, at any time within three months from the date of the certificate for the final publication of the record-of-rights under Sub section (2) of Section 83 of the decision of any dispute regarding any entry which a Revenue Officer has made in, or any omission which he has made from, the record, except any entry of a fair rent settled under the provisions of Section 85 before the final publication of the record-of-rights, whether such dispute be-

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(ee) as to any question relating to the title in land or to any interest in land as between the parties to the suit:

or

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and the Revenue Officer shall hear and decide the dispute.

According to Mr. Sinha, a suit for declaration of title and recovery of possession was maintainable before the revenue court in view of Clause (ee) of sub-section (1) of Section 87, and, as such, the learned Munsif should not have entertained the suit filed on behalf of the plaintiff. At the outset I may point out that this objection was taken for the first time during the hearing of the appeal. No such stand was taken in the written statement filed on behalf of the defendants. This point was not urged before the courts below. From the record of this appeal it appears that no such grievance has been made in the memo of appeal filed before this court. This appeal was admitted after coming into force of the CPC (Amendment) Act, 1976 by which Section 100 of the CPC has been amended. This Court is required by Section 100(4) to formulate the substantial questions of law at the time of admission on which the appeal is to be heard. Even at that stage no such question has been formulated because it was never urged before the learned Judge who was hearing this appeal for the purpose of admission. Learned counsel for the appellants, however, submitted that as this question goes to the root of jurisdiction it can be urged for the first time during the hearing of the appeal. It is true that under some special circumstances an objection, which has not been taken in the pleading or in the courts below, can be allowed to be taken for the first time before this court in a second appeal. But, in my opinion, the objection which has been taken on behalf of the appellants is not one of such objections which, if allowed to be taken, shall render the judgments of the courts below nullity. In my view, it will not be a proper exercise of the discretion vested in this Court to allow the appellants to urge this point after lapse of 17 years, because the suit had been filed by the plaintiff in the year 1967. Accordingly, this appeal fails and it is dismissed, but, in the circumstances of the case, there shall be no order as to costs.