(E.A.) Moore and others vs Rai Babu Gulab Chand Saheb

Das, J.—The disputed lands having an area of 66 bighas 8 cattahs and 9 dhurs were recorded in the finally published Record-of-rights as appertaining to Mauza Bhagwanpur. The Record-of-rights further stated that the land was in the possession of the proprietor of mauza Manpurwa as a tenure-holder. The plaintiff is the proprietor of mauza Manpurwa and he instituted a suit under the provisions of S. 106 of the Bengal Tenancy Act in the Court of the Settlement Officer of North Bihar for the following reliefs:-

(1) That it may be held that the 66 bighas 8 kathas 9 dhurs of land in suit appertains to mauza Manpurwa and it is, as milik (proprietary interest), in possession of the plaintiff. It bears khesra Nos. 3, 26, 32, 2, 9, 1, 10, 11, 33, 14, 15, 4, 27, 33, 7, 29, 30, 31, 34, 36, 5, 12, 22, 23, 18, 19, 13, 28, 35, 24, 37, 6, 16, 17, 20, 21, 8 and 25.

(2) That it may be held that the defendants have no connection and concern whatever with the land in suit and that it does not appertain to Bhagwanpur.

(3) That it may be held that there is a custom prevailing in both the mauzas and the neighbouring villages that whatever land accrues to whatever mauza on account of (change of current of) the river Sikarahana, is declared as appertaining to that mauza and the other mauza has no connection with the same.

(4) That the Court may be pleased to decide that the maliks of both the mauzas have right to fishery of the aforesaid river Sikarahana, in shares of halves and it may be held that a red line (on a map) should be fixed in the middle of the said river Sikarhana, so that the maliks of both the mauzas may have their boundary limits fixed with respect to their share of halves.

(5) That it may be held that the proprietor''s khewat with respect to the aforesaid land in suit should be prepared in the name of the plaintiff and the entry made in the case under S. 103, stating him (the plaintiff) as raiyat, should be struck off.

(6) That a decree for the above (reliefs) may be passed and costs in Court, interest pendente lite and future interest up to the date of realisation may be awarded against the defendants.

The learned Settlement Officer before whom the suit came up for hearing thought that there was no question of possession raised in the suit, but that it involved a question of right and title. He considered that the question was important because it would affect other considerable areas in the locality. He accordingly under S. 106 of the Bengal Tenancy Act read with R. 40. para. D of the Government Rules directed that the record of the case be sent to the District Judge for trial by such competent Civil Court as he may direct. The learned District Judge directed that the suit should be heard by the Subordinate Judge of Muzaffarpur. The learned Subordinate Judge accordingly heard the suit. He considered that he had no jurisdiction to decide the question of title. But nevertheless he held that the disputed lands appertained to the plaintiff''s village Manpurwa.

The defendants appeal to this Court and on their behalf it is argued by Mr. S.M. Mullick that the learned Subordinate Judge had no jurisdiction to take cognizance of the case or to decide the question at all. S. 106 of the Bengal Tenancy Act provides that a suit may be instituted before a Revenue Officer at any time within three months from the date of the final publication of the record-of-rights under sub-S. (2) of S. 103-A by presenting a plaint on a stamped paper for the decision of any dispute regarding any entry which a Revenue Officer has made in, or any omission which the said officer has made from the record, whether such dispute be between landlords and tenant or between landlords of the same or neighbouring estates, or between tenant and tenant, or as to whether the relationship of landlord and tenant exists, or as to whether land held rent free is properly so held, or as to any other matter and the Revenue Officer shall hear and decide the dispute.

It is contended on behalf of the respondents that there was a dispute regarding an entry which was made by the Revenue Officer although it may be that the dispute was between the landlords of neighbouring estates. It was also contended that in so far as the entry recorded the plaintiff as the tenant of the appellants it was clearly within his power to maintain the suit under S. 106 of the Bengal Tenancy Act which expressly authorises a suit raising a question whether the relationship of landlord and tenant exists. It has been held in numerous cases that a Revenue Officer in deciding disputes between rival proprietors under S. 106 is confined to the question of possession alone and is not competent to decide the question of title. It is quite true that the Revenue Officer is competent to decide the question whether the relationship of landlord and tenants exists, but, in my opinion, he is only competent to decide that question provided the question is not between neighbouring estates. The question for our determination then is does the suit raise a question of title between neighbouring proprietors. The learned Settlement Officer himself took the view that it raised the question of title and in that view, and in that view only, he has sent the ease for trial to the Civil Court. A careful perusal of the plaint leaves no doubt whatever in my mind that the plaintiff in this suit raised a question of title for trial by the Settlement Court. In the first prayer he claims that he is in possession of the disputed land in proprietary interest. The record-of-rights shows that the proprietary interest was in the defendants and in so far as he claims by prayer 1 that the proprietary interest is in himself, he has clearly raised the question of title as between him and the defendants. The second para, in my opinion raised the same question. He asks that it may he held that the defendant had no connection and no concern whatever with the land in suit. The Record-of-rights shows that the defendants have connection and concern with the land in suit. In so far as he asked the Court to hold that the defendants had no connection or concern with the land in suit, he invited the Court to determine that the defendants had no title whatsover. The third prayer invites the Court to hold that there is a custom prevailing in mauzas and the neighbouring villages that whatsoever land accrues to whatever mauza on account of the change of current of the river Sikarahana is declared as appertaining to that mauza and the other mauza has no connection with the same. He is in this paragraph inviting the Court to determine that the custom of the mid stream prevails in the mauza. That again can by no stretch of language be held to raise a question of possession and not a question of title. Mr. Sen strongly relies upon the fifth prayer of his plaint. In that prayer he asks that it be held that the proprietors'' khewat respect to the aforesaid land in suit should be prepared in the name of the plaintiff and the entry made in the case under S. 103 stating him (the plaintiff) as raiyat should be struck off. I am unable to see how it can be said that this prayer raises a question of possession. Mr. Sen has insisted before us that all that he is asking the Court to do is to strike off the word "tenure holder appearing as against his name but if the Court strikes off the word tenure-holder" it is obliged to record the plaintiff either as the proprietor or as something else. In asking the Court to determine that he ought to be recorded not as a tenure-holder but as a proprietor and that the proprietor''s khewat with respect to the aforesaid land should be prepared in his name, he is definitely asking the Court to decide a question of title as between him and the defendants. In my opinion, it is impossible to contend that the suit does not raise a question of title as between rival proprietors. I hold that the Settlement Officer had no jurisdiction to entertain this suit. That being so he had no jurisdiction to make any order under S. 106 transferring the case to a competent Civil Court for trial. The Civil Court accordingly had no jurisdiction to try the suit.

I must allow this appeal and set aside the judgment and the decree of the Court below and dismiss the suit. I would make no order as to costs.

Bucknill, J.

I agree.