Hemat Ram and Others vs Karu Sahu

John Bucknill, J.—This was a second appeal from a, decision of the Subordinate Judge of Ranchi, dated the, 13th of March, 1923, by which he affirmed a judgment of the Munsif of Giridih, dated the 29th of November, 1921.

The matter is a very trifling one; and there are only two points of any substance which have been raised in the argument before us. The dispute relates to a small piece of land which is adjacent to a house in which the plaintiff lives. It would seem that many years ago the third defendant, a Goal Company, (or its predecessor-in-title) got a permanent mukarrari lease of (at least) 4 kathas of land situated in what is now known as the Municipality of Giridih; the land is apparently in the town and there are houses all about it., For all purposes material here the history of this matter commences in 1914. On that date a house existed on these 4 kathas of land or a major portion thereof and a lady, Musammat Eadhia, was then the dar-mukarraridar; in that year she sold half the interest in her tenure toone Nazir Ali and the remaining moiety to one Ramlal. In 1915 Ramlal sold what he had bought to Nazir Ali; and in 1916 Nazir Ali sold the entire tenure to the plaintiff. The plaintiff says that he obtained possession of all the property which, he alleged, included the patch of ground in dispute which lies to the westward of his house. On the 25th of January, 1921, however, the third defendant, who is the mukarraridar of all this property, purported to settle the land in dispute with the first and second defendants who have a house very close to the plaintiff''s house. The plaintiff alleges that in consequence of this settlement he was dispossessed. He, therefore, brought a suit claiming, (a) an adjudication of title that it might be held that the defendants had no right whatever to the disputed land and that it had been purchased by him (the plaintiff), and, (b) that a decree might be given awarding him khas possession over the disputed land. Now the next step which seems to have been taken was that a Commissioner was appointed to ascertain what were the boundaries of the property which had been purchased by the plaintiff. He returned his report to the effect that of this land in dispute, the major portion, some 10 chataks odd, was included within the boundaries and the area of the property which had been purchased by the plaintiff; but that the remainder, namely, some 5 chataks odd, was outside the confines of the plaintiff''s property.

The matter went before the Munsif who apparently, sympathising with the plaintiff, thought that he (the plaintiff) should recover possession of the whole land in dispute. In his view, (although the Commissioner had found that some of the land in dispute was outside the property which the plaintiff had actually purchased), the excess in some way appertained to the plaintiff''s property; and he thought that, although the third defendant might be entitled to claim some extra rent, still the plaintiff was entitled to recover possession of this extra piece of land. He, therefore, decreed the suit in favour of the plaintiff.

When the matter came up on appeal before the Subordinate Judge, the Subordinate Judge appears, to have affirmed the Munsif''s judgment on two grounds. He observes that "the boundaries as given attract the excess." I do not quite understand what the learned Subordinate Judge means by this phrase; unless he implies, that, although the Commissioner found that some of the disputed land was not within the confines and area of the property which the plaintiff had bought, yet, equitably, it should be attached to the plaintiff''s property. This does not seem to me to be very cogent reasoning. The Subordinate Judge, however, also finds that for many years the plaintiff and his predecessors had in fact been throwing rubbish and house-sweepings on to the land in dispute and he, therefore, thinks that the plaintiff and his predecessors-in-title had in this way obtained some form of title to the land by adverse possession. I do not think, however, that this a proposition which can well be supported. In the case of Framji Cursetji v. Goculdas Madhowji 16 B. 338 : 8 Ind. Dec. (N.S.) 703 it was held in the Bombay High Court by Sargent, C.J., and Bayley, J., that much more substantial user than the mere throwing of rubbish on to a piece of land must be proved in order to establish any sort of title by adverse possession. Their Lordships even went so far as to indicate that where a privy and sheds for cows, goats and fowls and a coachman''s hut (all, however, of a flimsy and non-permanent nature) had been constructed on the land in dispute, even such user did not lay a foundation for a claim of title by adverse possession. The Subordinate Judge, therefore, upheld the Munsif''s decision.

The matter has now come before us; and the learned Advocate, who has appeared on behalf of the appellants, has raised, as a preliminary; point, an argument that under the provisions of the Chota Nagpur Tenancy Act, 1908, a Civil Court has no jurisdiction to try the case. This point was not raised up till now. The learned Advocate bases his argument upon the provisions of Section 139(5) and Section 139 A of the Act. Section 139(5) reads:

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 shall be cognizable by the Deputy Commissioner and by no other Court". I should however, point out that the word suits in this section was not introduced into tins section until 1924. Section 139-A however, which was in existence prior to the date of the institution of the suit reads:

Subject to the provisions of Chapter XII no Court shall entertain any Suit concerning any matter in respect of which an application is cognizable by the Deputy Commissioner u/s 139.

Although it might be said that the second relief here claimed, (that is to say, recovery of possession of the land in dispute by one who claimed to be a tenant and wrongly to have been ejected there from) might conceivably fall within the above quoted provisions of the Act, yet as has been pointed out by the learned Advocate who has appeared for the respondent, the real question in this case was a question of title could not have been entertained as capable of being heard before the Deputy Commissioner. Although it is suggested that the question of title having been decided by the Civil Court, it might then be incumbent upon the plaintiff to proceed to obtain recovery of possession through the medium of the Deputy Commissioner I cannot think that if the title suit had to be decided by the Civil Court, it would not be possible for the Civil Court to give all and every relief. The matter has however, been dealt with in the case of Gobinda Bauri and Others Vs. Kristo Sardar, . In that case Kulwant Sahay, J., held that Section 139 of the Chota Nagpur Tenancy Act would not contemplate a case where there was a dispute with regard to title; and that, where the relationship of landlord and tenant was not admitted, a suit for possession of an occupancy holding on the ground of the defendants'' denial of the tenancy right is not cognizable by the Deputy Commissioner at all I am myself satisfied that the Deputy Commissioner would not have contemplated adjudicating in a case such as the present one, if it bad been put before him. I think, therefore, that the first contention must fail.

With regard to the second point, I must admit that I have felt very great difficulty in understanding how the piece of land, which was found by the Deputy Commissioner not to belong to the property which the plaintiff had purchased, could be allotted to him. Whilst I am satisfied that the Munsif and the Subordinate Judge were right in allotting to the plaintiff and giving him relief in respect of such land as was found by the Commissioner to be part of what the plaintiff had purchased, I am not satisfied with regard to the remainder. The learned Advocate, who has appeared for the respondent, has not been able to put forward any intelligible theory upon which legally his client can claim this property. He suggested, however, that although the boundaries in. the kabala may have in fact included the whole of the land in dispute, yet, when assessed by measuring 4 kathas, there was found a surplus. But an examination of what the Commissioner reported shows that this was not the case; but that neither the boundaries nor the area included the portion which the, Commissioner found to be outside the plaintiff''s property.

Under these circumstances I think that the appeal must be allowed so far as that portion of the land in dispute is concerned which lies outside the boundaries of the plaintiffs property as determined by the Commissioner. The amount which the plaintiff will not be entitled to recover is, I understand, 5 chataks 19� sq feet. The appeal will, therefore, be thus allowed in part with half costs.

Ross, J.

I agree.