Jyotirmoy Mandal and Others vs Banamali Patar and Others

Wrot, J.—This appeal comes before this Court after remand for the determination of the question whether the defendants were the under-tenants of the plaintiffs. A large number of questions have been argued by Mr. C.C. Das on behalf of the defendants including the question whether in the circumstances he was estopped from raising the question of title of the plaintiff landlords; but in the circumstances of the case it becomes unnecessary to determine any question relating to those matters having regard to the fact that a point is taken that the Courts in this case had no jurisdiction by reason of the provisions of the Chota Nagpur Tenancy Act. The case of Madhab Poddar Vs. Lall Singh Bhumij, is relied upon in this connexion.

The proposition of law established in that case was that no suit for ejectment of an under-tenant by his immediate landlord lies in the civil Court u/s 139-A read with Section 46, Sub-section 4, Chota Nagpur Tenancy Act, 1908.

Undoubtedly, if I may be allowed to say so, that proposition of law is now well established, but Mr. P.K. Sen on behalf of the plaintiff-appellants answers the point by contending that on the true construction of Section 46, Chota Nagpur Tenancy Act, the jurisdiction of the civil Court is not precluded. The facts which are necessary to be stated in this connexion are simply these : that in 1917 the plaintiff was a purchaser at a Court sale in execution of a decree and in the year following the land was let out or settled with the defendant-respondents, but at the time no definite term was stated.

Now Mr. P.K. Sen''s argument is that the jurisdiction of the Deputy Commissioner is confined to those eases in which the lease or tenancy is for a time certain. Reference is made first of all to Section 46, Sub-section (a) by which it is provided:

that no transfer by mortgage by a raiyat of his right in his holding or any part thereof by mortgage or lease, for any period, expressed or implied, which exceeds or might in any possible event exceed five years.

shall be valid, etc. Reference is also made to Sub-section 4 of the same section to the effect that at any time within three years after the expiration of the period for which a raiyat has, under this section, transferred his right in his holding or any part thereof, the Deputy Commissioner may, in his discretion, on the application of the raiyat, put the raiyat into possession of such holding or portion in the prescribed manner.

Now the argument shortly is this: that if a period is fixed for the tenancy incidentally a time within which it is not contrary to the provisions of Sub-section (a), then the Deputy Commissioner has under Sub-section 4 jurisdiction to give the raiyat possession in a suit which is in substance a suit for possession; but in cases in which, as in this case, no period is mentioned and therefore the period is uncertain, the civil Court has jurisdiction. In my judgment, that is, if I may be allowed to say so, a somewhat artificial argument. It is quite clear from the provisions of the section to which I have already referred that the raiyat is not entitled to create a lease for a period of more than five years. The expression used in Sub-clause (a), Section 46 is for any period expressed or implied or might in any possible event exceed five years.

That being so, the matter can be shortly stated in this way that when a party, that is to say a landlord on the one hand and the tenant on the other contract with regard to tenancy in connexion with land which is subject to the Chota Nagpur Tenancy Act they commence their negotiations having one term of the tenancy already fixed by statute, at any rate, so far as the maximum is concerned.

There is one other fact in this case which it is also necessary to mention, that is, that this suit was commenced is the year 1925, that is to say within three years after a period of five years had elapsed after the commencement of the tenancy. Now the matter can be stated in other words in this way that where, as in this case, no specific period was mentioned, then at any date after a lapse of five years and within three years thereafter the raiyat could have gone to the Deputy Commissioner and sought possession. He could have claimed possession by reason of the allegations which he would have supported, namely, that in the absence of any definite period named by him or agreed to between the parties, the time as fixed by the statute must govern the case in other words, that as the five years, the period for which he was entitled to create the lease, had elapsed, he was thereafter entitled to possession.

In my judgment there is no difference between the illustration which I have given and the facts of this case: in other words although no time was agreed to between the parties in this case, it was a lease governed by Section 46, Chota Nagpur Tenancy Act. It was legal only for a period of five years and it must be inferred therefore that the tenancy was for the period as provided by the statute.

In my judgment the point which is taken on behalf of the tenant-respondents succeeds. The tenancy was of such a character as would give the Deputy Commissioner jurisdiction and the jurisdiction of the civil Court is ousted; and consequently the appeal fails and is dismissed with costs.

Das, J.

I agree.