Dhuplal Sahu vs Bhekha Mahto

Adami, J.—In the suit giving rise to this second appeal the plaintiff sought to recover possession of a certain holding on the ground that he has been dispossessed by the defendant who had been put in possession of the holding by the landlord. He also asked for a declaration that he had right of occupancy in the holding. In the trial Court the question was considered whether under the provisions of Section 139 A the suit could lie in a civil Court. The Munsif decided that it Could, because it was not merely a suit u/s 139, Sub-section 5, but was a suit for a declaration of the plaintiff''s title as an occupancy raiyat. Therefore the Munsif held that the suit would lie in the civil Court, it not being a suit exclusively of the nature mentioned in Sub-section 5 of Section 139 and therefore Section 139 A would not apply. In the appellate Court this question does not seem to have been raised. Before us the question was raised again and it was contended that no suit would lie in the civil Court. Section 139 A was added to the Chota Nagpur Tenancy Act in 1920 and was extended to the District of Palamau in which the land in dispute lies, in 1920. Therefore it was in force at the time the present suit was instituted. Under that section the civil Courts are precluded from entertaining any suit.

concerning any matter in respect of which an application is cognizable by the Deputy Commissioner u/s 139.

u/s 139, Sub-section 5, as it stood at the time of the institution of the suit, it was provided 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 would only be brought before the Court of the Deputy Commissioner. Therefore it would seem that the present suit which was based on the allegation that the plaintiff had an occupancy right in the land but had been dispossessed by the defendant, whom the landlord set up as a tenant in order to get rid of the plaintiff, would seem to be clearly barred by the provisions of Section 139-A.

It is argued, however, that, since in the plaint a declaration was asked of the plaintiff''s title as an occupancy raiyat, the suit was not merely a suit of the nature mentioned in Section 1.39, Sub-section 5, but involved a question of title, so the provisions of Section 139-A would not apply. As a matter of fact the point whether the plaintiff had an occupancy right or not in this land was merely a point in the evidence. It was not necessary really to ask for that relief; for in order to recover possession the plaintiff would have to show that he was an occupancy raiyat. In my opinion the case is not excluded from the operation of Section 139-A by the mere fact that the declaration was asked for.

I would hold that this suit was in fact barred under the provisions of Section 139-A, and Section 139, Sub-section 5. of the Chota Nagpur Tenancy Act and that the plaint should have been filed in the Court of the Deputy Commissioner. I would therefore allow the appeal with costs, and dismiss the plaintiff''s suit costs in all the Courts.

Das, J.

I agree.