Gobinda Bauri and Others vs Kristo Sardar

Kulwant Sahay, J.—These two appeals are by the plaintiffs and arise out of two suits brought by them for declaration of their title and for recovery of possession of certain lands set out in the schedules attached to the plaint. Their case was that the lands in dispute formed the ancestral jote jamai right of the plaintiffs and that the defendant, who is the ghatwal of the village where the lands are situated, forcibly dispossessed them in Agrahayan 1327 B.S. and that, therefore, they claimed recovery of possession on adjudication of their title to the land.

The defence of the defendant was that the Civil Court had no jurisdiction to entertain the suit and that the suit was triable in the Court of the Deputy Commissioner alone; that the suit was barred by limitation; that the plaintiff''s had no raiyati interest in the lands; that the said lands were granted to the ancestors of the plaintiffs by way of maintenance and that on the death of the maintenance-holders the defendant had resumed the lands and taken possession thereof; that during the settlement operations the plaintiffs tried to take possession thereof as tenants but that by an order of the Deputy Commissioner possession had been delivered to the defendant with the aid of the Police. It was contended that the suit was barred under the provisions of Section 258 of the Chota Nagpur Tenancy Act.

The learned Munsif who tried the suit held that the plaintiffs were raiyats with occupancy rights of the lands in dispute; that the suit was maintainable in the Civil Court; that it was not barred by Section 258 of the Chota Nagpur Tenancy Act; that the plaintiffs were in possession of the lands till they were dispossessed by the defendants through the help of the Police in Agrahayan 1327 B.S.; that although the lands in dispute were situated in a ghatwali village yet the plaintiffs could acquire occupancy right in the ghatwali lands. He believed the receipts for rent produced by the plaintiffs and decreed the suits for recovery of possession.

On appeal by the defendant the learned Subordinate Judge has set aside the decrees passed by the Munsif. He has held that the suit was barred under the provisions of Section 258, Chota Nagpur Tenancy Act, and that the plaintiffs had no right as raiyats in the lands in dispute. He further held that the plaintiffs could not acquire occupancy right in ghatwali lands. He has accordingly dismissed the suits.

The plaintiffs have come up in second appeal to this Court.

At the hearing of the appeals a preliminary objection was taken on behalf of the respondent to the effect that the suit was not maintainable in the Civil Court. The learned vakil relied upon the provisions of Section 139-A, Chota Nagpur Tenancy Act, and he contended that the suit being one for recovery of possession by a tenant against his landlord on the allegation that the plaintiffs as tenants had been unlawfully ejected by their landlord their proper remedy was by an application or a suit under Clause (5), Section 139, Chota Nagpur Tenancy Act, and under the provisions of Section 139-A of the Act the Civil Court had no jurisdiction to entertain the suit, The objection, in the form it has been taken here, does not appear to have been taken in the Court below; moreover it is not a preliminary objection to the hearing of the appeal but an objection on the merits of the case relating to the jurisdiction of the Civil Court to entertain the suit. Having regard, however, to the frame of the suit I am of opinion that this objection is not sound. Section 139 provides that certain suits and applications shall be cognizable by the Deputy Commissioner and shall be instituted and tried or heard under the provisions of the Chota Nagpur Tenancy Act and shall not be cognizable in any other Court except as otherwise provided in the Act; and Clause (5) of the section enacts that all suits and 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 is one of the suits which is so cognizable by the Deputy Commissioner. This section contemplates a case where the relationship of landlord and tenant is admitted to exist between the parties; it does not, to my mind, contemplate cases where there is a dispute as regards title. In the present case the relationship of landlord and tenant is not admitted; the plaintiffs expressly stated in their plaint that the defendant denied their tenancy right and that he has bean asserting that the plaintiffs had no right to the land in suit. There was a specific prayer in the plaint for an adjudication of the plaintiffs'' title as occupancy raiyats of the land. Such a suit, in my opinion, was not cognizable by the Deputy Commissioner, and Section 139 does not operate as a bar to the maintainability of the suit in the civil Court.

As regards the bar of Section 258, Chota Nagpur Tenancy Act, the facts appear to be as follows: One Manu Bauri had five sons. The eldest son was Haru Bauri who was the father of the defendant Krishna Sirdar. The second son was Nafar Bauri who was the ancestor of the plaintiffs in Suit No. 986 which gave rise to S. A, No. 950. The third was Gokhul Bauri the father of the plaintiffs in Suit No. 985 giving rise to S.A. No. 943. The remaining two sons were Gopal and Mansaram, According to the plaintiffs their ancestors first came and began to live in village Dhakya and acquired lands there as tenants. Manu and his eldest son Haru subsequently became ghatwals of the village; but before the acquisition of the ghatwali interest, the plaintiffs assert that their ancestors had already acquired raiyati interest in the lands. During the khanapuri operations the plaintiffs were first recorded as tenants of the lands in dispute under the defendant; but subsequently, during attestation proceedings the names of the plaintiffs were removed from the category of tenants and recorded in the remarks column as being in possession of the lands with the share of rent and cess payable by them. The defendant thereupon went to the Deputy Commissioner of Manbhum and complained that he was the ghatwal of the lands in dispute and that he had been wrongfully dispossessed by his relations, namely, the present plaintiffs, and asked him for help to recover possession of the lands. The Deputy Commissioner by his parwana dated 16th July 1920, directed the officer-in-charge of the Police Station to oust the plaintiffs from the plots in dispute and to put the defendant in formal possession thereof. The defendant accordingly with the help of the police obtained possession of the lands in dispute and the plaintiffs were thus dispossessed therefrom. The defendants thereafter want before the Settlement Officer. The learned Settlement Officer by his order dated 31st January 1921, directed that the possession of the plaintiffs in respect of the lands in dispute in the khatian as made under orders of the Attestation Officer be cancelled. This last order of the Settlement Officer purports to be u/s 89, Chota Nagpur Tenancy Act, and it is contended that u/s 250 of the Act no suit can be entertained in any Court to vary, modify or set aside either directly or indirectly any decision order or decree of the Deputy Commissioner or Revenue Officer in any suit, application or proceeding u/s 89 of the Act except on the ground of fraud or want of jurisdiction, and that every such decision, order or decree has, the force and effect of a decree of a civil Court in a suit between the parties and subject to the provisions in the Act relating to appeals, the order is final. The learned Munsif came to the conclusion that the order of the Settlement Officer dated 31st January 1921 was not an order u/s 89 of the Act inasmuch as Section 89 pre-supposes a proceeding under Sections 83, 85 or Section 86 of the Act, and as there was no proceeding under any of these sections prior to the order of 31st January 1921 and, therefore, according to the Munsif the order purporting to be u/s 89 was ultra vires and without jurisdiction and that section did not apply to the present case. The learned Subordinate Judge, however, has held that there was nothing in the record to show that there was no previous case u/s 83 but that even if it were so, it would make no difference inasmuch as by the Amending Act, 6 of 1920, (Bihar and Orissa) any entry in the draft Record of Rights can be revised by the Revenue Officer if application be made to him within 12 months from the making of the entry.

He was of opinion that the entry made by the order of the Attestation Officer was an entry made in the draft Record of Rights within the meaning of Section 89, and that therefore, the settlement officer had jurisdiction to revise that entry under the provisions of Section 89 of the Act and, therefore, Section 258 which provides that such an order of revision will be final and shall have the force and effect of civil Court, operates as a bar to the present suit. In my opinion the view taken by the learned Subordinate Judge appears to be sound. The order of the Attestation Officer must be taken to be an order u/s 83 of the Act. All orders whether by khanapuri officers or by Attestation Officers have to be made during the preparation of the draft Record of Rights and all such orders passed before final publication of the Record of Rights are subject to revision under the provisions of Section 89 of the Act. It is contended that the Revenue Officer can revise the entries in the draft Record of Rights within 12 months from the making thereof and in this case there is nothing to show whether the order of 31st January 1920, was made within 12 months of the order of the Attestation Officer. Now, it must be presumed that the Revenue Officer acted regularly and if the bar of 12 months as provided in Section 89 is to be availed of, it has to be shown by the party pleading such bar that there was a bar of limitation and that the order had been passed beyond 12 months. There is nothing in the record to show that this was the case. The present suit therefore, was barred u/s 258 of the Act.

Having regard to the suit being barred by Section 258 the other points raised in the appeal do not really arise. As regards the title get up by the plaintiffs the learned Subordinate Judge has come to the finding that there was absolutely no evidence on the record to show that the ancestor of the plaintiffs had acquired any tenancy right before the acquisition of the ghatwal interest. He finds on a consideration of the evidence that the lands in dispute were held by the ancestor of the plaintiffs by way of maintenance; and that after the death of the maintenance-holders the defendant, who is the ghatwal was entitled to take khas possession of the lands. He moreover finds that the rent receipts produced by the plaintiffs were not genuine documents and there was no relationship of landlord and tenants between the parties. These are findings of fact which are conclusive in this second appeal. As regards the question as to whether occupancy rights can be acquired in ghatwali lands the cases relied upon by the Subordinate Judge supports his contention. In Upendra Nath Hasra v. Ram Nath Chowdhury (1906) 33 Cal 630 it was held that occupancy rights could not be acquired in ghatwali lands. The same view was taken in Mohesh Majhi v. Pran Krishna Mandal (1905) 1 CLJ 138. The cases relied upon by the munsif do not relate to ghatwali lands but to chaukilari chakran lands and have no application to the present case.

The appeals must be dismissed with costs.