Janki Chowdhury and Another vs Sambodh Kurmi and Others

Adami, J.—The plaintiffs instituted a suit for sajha rent against the defendants who denied the plaintiffs'' title to receive rent and stated that they had paid rents to one Tribeni Sahu. u/s 177 of the Chota Nagpur Tenancy Act, Tribani Sahu was joined as a party intervenor, and claimed that he was entitled to receive rent and had received rant from the defendants. The Deputy Collector who tried the suit found that Mussammat Bimla Kuar, wife of the plaintiff No. 1 and mother of the plaintiff No. 2, was recorded in the record-of-rights, that Tribani and his father ware not proved to have bean collecting rents in respect of these lands previously and that Tribani Sahu was not entitled to collect rants. He disbelieved the defendants'' plea of paymant and decreed the suit as against the defendants.

An appeal was made to the Judicial Commissioner who reversed the finding of the Deputy Collector and found that the plaintiffs had given no evidence of possession and Tribani was in possession and was in the habit of receiving the sajha rents from the under-raiyats. He held that rent was paid by the defendants in good faith to Tribani Sahu for the year in suit and allowed the appeal and dismissed the suit.

The first contention of the learned Vakil for the appellants is that no appeal lay to the Judicial Commissioner and that the appeal should have been made to the Deputy Commissioner.

Now the value of the suit was below Rs. 100 and it was tried by a Deputy Collector. The learned Vakil refers to Sections 218, 224 and 177 of the Chota Nagpur Tenancy Act. Under Clause (b) of Sub-section (1) of Section 224, suits which ware tried and decided by a Deputy Collector and in which trader Section 218, Sub-section (2) an appeal is allowed to the Daputy Commissioner, are not appealable to the Judicial Commissioner and Section 218, Sub-section (1) in the first place says that the judgment of the Deputy Commissioner, is final where the value of the suit is Rs. 100, unless in the suit a question relating to a title to land, or to some interest in land, as between parties having conflicting claims thereto, has been determined by the judgment, and Sub-section (2) states that when any such suit, in which, if triad and decided by a Deputy Commissioner, the judgment of the Deputy Commissioner would be final, is tried and decided by a Deputy Collector, an appeal from the judgment of the Deputy Collector shall lie to the Deputy Commissioner. Where proceedings were taken u/s 177, that is, where a payment to an intervenor is claimed and asserted, the only question which has to be decided in the suit is whether the payment has in fact been made to such intervenor in good faith, and the decision in a suit under that Section cannot affect the right of any party who may have a legal title to the rent to establish that title by a suit in a Civil Court. It is argued therefore that as this is not a casein which a question of title to the land or interest in the land could be decided and the value was below Rs. 100, the appeal should under Sub-section (2) of Section 218 be filed before the Deputy Commissioner and not the Judicial Commissioner.

Now it is quite true that where proceedings are taken u/s 177, the Court will not come to a decision as to the respective title of parties to the suit, but in this case the Deputy Collector has decided a question regarding the interest in land as between the parties. One of the issues framed was whether Tribeni Sahu was entitled to the rent from the land, and he has decided that Tribeni is not entitled to rent from the defendants. Thus there has been a question of title or interest in land determined by the Deputy Collector and therefore an appeal will lie to the Judicial Commissioner and not to the Deputy Commissioner. I need only refer to the case of Lall Bhim Singh v. Guman Ghanjhu 1 CWN 341. There it was held that the decision of a Deputy Collector as to whether an intervenor had been actually and in good faith receiving and enjoying rent before and up to the time of the commencement of the suit, is a decision upon the question whether the intervenor is entitled to collect rent and therefore it is a decision upon a question relating to some interest in land as between parties having conflicting claims thereto.

Then it is contended that in this suit a decision was necessary as to whether Tribeni received the rend from the defendants in good faith, and that there has been no definite finding by the Judicial Commissioner on this point. It is true that there is no definite finding but the Judicial Commissioner has found that Tribeni had been in possession and had been receiving the sajha rent from the under-raiyats, and he states that he has no reason to believe that it was not paid in good faith. He found that there was no evidence that the plaintiffs had ever been in possession of the land. I think that this is equivalent to a finding that Tribeni had been in the habit of receiving rents and that he received the rents on this occasion in the ordinary course and bona fide.

Another contention is that the Judicial Commissioner has relied upon the order passed by an Assistant Settlement Officer during the khanapuri proceedings and has been influenced by this order in his findings as to Tribeni''s possession. It is urged that this order was inadmissible in evidence and it may be taken that an order passed during the khanapuri proceedings is not good evidence; but it is quite clear that the Judicial Commissioner has not based his finding on this document, nor do I think has he been influenced by it. All he presumes from the order is that Tribeni and his father probably managed the land for the wife of plaintiff No. 1 during her girlhood. He merely says that considering the order of the Assistant Settlement Officer it does not sound at all improbable that Tribeni did manage the property for the plaintiff''s wife. What the Judicial Commissioner had to determine was whether payment of rent had been made by the defendants to Tribeni and whether that payment was made in good faith and the rent was received in good faith, and the Judicial Commissioner has come to findings on this point and his findings are findings on this point and he findings as between Tribeni and the plaintiffs is one which can be settled in a separate suit. It was not the duty of the Judicial Commissioner to come to any finding which could be taken as a decision as to title. Accordingly the appeal is dismissed with costs.