Deonandan Pande and Another vs Anhach Kahar and Others

Das, J.

These analogous appeals arise out of suits instituted by the appellants for declaration of their title as occupancy raiyats and recovery of possession of their holding, on the ground that they were dispossessed some time about 1914 by the landlord, who proceeded to settle the land with other tenants who are respondents in the appeals. The defendant-tenants contested the suits on the merits, and also on the ground that the civil Court had no jurisdiction to try them, and they also pleaded that The suits were barred by limitation because they had not been instituted within three years of the date of dispossession of the plaintiff. The Court of first instance decreed the suits substantially in accordance with the plaintiffs'' claim. In appeal the Judicial Commissioner of Chota Nagpur reversed the decrees on the ground that the suits were triable exclusively in the Court of the Deputy Commissioner, and returned the plaints to the plaintiffs for presentation in the proper Court.

The first question is whether the civil Court has any jurisdiction in these cases. In deciding that the suits could be entertained only by the revenue Court the learned Judicial Commissioner relied upon the provisions of Section 139-A of the Chota Nagpur Tenancy Act, which was extended to Palamau in 1920. In my opinion the decision of this Court in Chaudhry Gursaran Das and Others Vs. Akhouri Parmeshwari Charan and Others., is a complete answer to the arguments employed by the learned Judicial Commissioner. In these cases the amended Clause 5 of Section 139 has no application since Section 38, Act 6, 1920 (B. & O.C.) had not been extended to Palamau at the date of the institution of the suits. The only question that remains is whether there is anything in Section 139-A which prevents the civil Court from assuming jurisdiction in the cases. Section 139-A runs as follows:

No Court shall entertain any suit concerning any matter in respect of which an application is cognizable by the Deputy Commissioner u/s 139.

There is no doubt that Section 139-A bars the jurisdiction of civil Courts in suits for recovery of possession of land instituted u/s 9, Specific Relief Act, but not in suits for declaration of title in which possession is claimed as a consequential relief. The point has been fully discussed in the case to which I have referred, and as we agree with the decision in that case, it is not necessary for us to give our reasons in detail. These suits were clearly framed as suits for declarations with consequential relief of recovery of possession, they are title suits of a nature not cognizable by the Court of the Deputy Commissioner, and nothing in the Chota Nagpur Tenancy Act debars the civil Court from entertaining them.

It was contended before us that whether these suits are triable in the civil Courts or not, they are barred by limitation, and reliance was placed upon Sections 230 and 237 of the Tenancy Act in support of the argument. Section 230 provides:

The provisions for the Indian Limitation Act shall so far as they are not inconsistent with this Act, apply to all suits, appeals and applications under this Act.

Now, the Limitation Act provides for a period of twelve years in a suit of this nature. It is obvious, therefore, that Section 230 does not help the contention of the respondents. Section 237 is in these terms:

Applications for the recovery of possession of a holding, or any portion thereof from which an occupancy raiyat has been unlawfully ejected must be instituted within three years from the date of such ejectment.

The answer to the argument founded on Section 237 is that this is not an application for recovery of possession of a holding, but a suit for declaration of title and for recovery of possession as against persons who, according to the plaintiffs, are trespassers upon the land. The Calcutta High Court had to consider a similar point in Lahar Singh v. Johan Munda [1912] 16 I.C. 418. In dealing with this point their Lordships said as follows:

It has bean argued on behalf of the appellant that the term "application" in Section 237 includes a suit, but this is clearly unfounded. In Sections 231, 232 and 234 a clear distinction is observed between a suit and an application. In Sections 233 and 236 reference is made only to a suit, In Section 237 reference is made only to an application and not to a suit; that application is clearly an application as contemplated in Clause 5, Section 139, which provides that all applications to recover the occupancy or possession of any land from which a tenant has been unlawfully ejected by the landlord or any person claiming under or through the landlord, are cognizable by The Deputy Commissioner and not in any civil Court.

I have no doubt whatever that Section 139, Clause 5, has reference to an application which it was open to a tenant to present u/s 71, Chota Nagpnr Tenancy Act, and that Section 237 refers to such an application. There being no provision in The Chota Nagpur Tenancy Act to bar a suit in the civil Court for declaration of title with consequential relief, the general law of limitation must apply, and the suits having been instituted within twelve years of the dispossession must be held to be within time.

The learned Judicial Commissioner has not examined the cases on their merits, and it is necessary that he should do so now. We allow the appeals, set aside the judgments and decrees passed by the Court below and remand the cases to that Court for decision according to law. Costs will abide The result and will be disposed of by the learned Judicial Commissioner.

The plaints which were returned to the plaintiffs will not be re-filed in the Judicial Commissioner''s Court and will be placed on the record.

James, J.

I agree.