Lal Man Naik and Others vs Kanhaya Lall Pandey and Another

Mullick, J.—In the Record of Rights published u/s 84 of the Chota Nagpur Tenancy Act the lands in suit were shown as the raiyati holding of the defendants. The plaintiffs, who are mortgagees, thereupon brought a suit u/s 87. of the Act before the Revenue Officer for a declaration that the entry in the Record of Rights was wrong and that the lands were their zerait lands and that the defendants had no right of occupancy therein.

The Revenue Officer dismissed the suit. There was then an appeal to the Judicial Commissioner who reversed the decision of the Revenue Officer and decreed the suit. The present second appeal is preferred by the defendants.

The first question that has to be determined is whether or not a second appeal lies to this Court. On behalf of the respondents it is urged that the suit was one u/s 87 of the Chota Nagpur Tenancy Act for the decision of a dispute regarding an entry in the Record of Rights under Chapter XII of the Act and by Notification No. 786 T.R., dated the 24th of May 1909 made by the Local Government under powers conferred by Section 264 of the Act, an appeal from the Revenue Officer''s decision lay to the Judicial Commissioner. It is urged that although a first appeal lies to the Judicial Commissioner, there is no provision of law which all ws a second appeal to this Court.

Now the matter turns upon the interpretation of Section 224(2) of the Act. The Judicial Commissioner, by the Notification above mentioned, was not following the procedure prescribed by the Civil Procedure Code. He was following the special procedure prescribed under Sections 220 to 223 of the Act. What the object of the Legislature was in thus restricting the Judicial Commissioner in the trial of the appeal is cot for me to say. But it is quite conceivable that these sections, which deal with the power of dismissing an appeal for default, hearing it ex parte, re-admitting an appeal if so dismissed, and delivering judgment in the manner provided by Section 170 of the Act, may be found in practice to be quite insufficient for the satisfactory trial of an appeal. For instance, the Judicial Commissioner may consider it desirable to take additional evidence or to remand or the parties may desire to file cross-appeals and objections. In the absence of definite provisions for these matters it is difficult to see what procedure the Appellate Court should follow. However that may be, the question is whether the Judicial Commissioner, when he pronounces judgment in an appeal, makes an appellate decree within the meaning of Section 224(2). If he does, then there is a second appeal from his decree to the High. Court and the provisions of Chapter XLII of the CPC apply to such a second appeal.

The word "the decree" is not defined in the Chota Nagpur Tenancy Act. Section 224, Clause (1), gives a right of appeal to the Judicial Commissioner or the High Court against a "judgment" of the Deputy Commissioner. The notification published u/s 87 and referred to above gives the right of appeal against the "decision" of the Revenue Officer. What then is the meaning to be assigned to the word "decree" in Section 224, Clause 2? In my opinion "decree" means nothing more than decision." Therefore if the decision is one made under Chapter XVI of the Act, then a second appeal lies. Next what is the meaning to be attached to the words "decree passed by the Judicial Commissioner under this Chapter?" Do they mean a decree passed in exercise of the jurisdiction conferred by this Chapter? or do they mean also a decree passed in compliance with the procedure ordained by this Chapter ? I think the words ought to be given a wide meaning and made to bear the latter meaning also. And as the Judicial Commissioner was following the procedure prescribed by Sections 220 to 223 of this Chapter, his decision was a decree under this Chapter and, therefore, a second appeal lies to this Court

But the learned Vakil for the appellant contends that the Judicial Commissioner had no jurisdiction to hear the appeal at all and he relies upon a Notification of the 29th of October 1909 prescribing that in respect of decisions u/s 87 of the Act, arising out of a Survey made u/s 119 of the Act, an appeal from the decision of the Revenue Officer lies either to his immediate superior in the Settlement Department or to the Commissioner of the Division, as the case may be.

It is true that the course of appeal against a decision u/s 87 of the Act is different according as the Survey is one under Chapter XIV or one under Chapter XII. But in this case there is no evidence whatsoever that the Survey was under Chapte XIV. The later Chapter empowers the Local Government, on the application of parties, to direct by notification that a Survey and Record be made of lands in any specified local area which are landlords'' privileged lands within the meaning of Section 118 of the Act. The learned Judicial Commissioner before whom this point appears to have been taken clearly states that it has not been shown that any Survey u/s 119 was ordered by the Local Government. Therefore, upon the facts, the Record of Rights was one under Chapter XII and an appeal from the decision of the Revenue Officer u/s 87 lay to the Judicial Commissioner and, as I have already held, a second appeal lies to this Court.

There remains the question of the merits of the second appeal. The learned Judicial Commissioner has found that the lands in suit have never been settled with the defendants; that the defendants were in possession in 1960 and 1969 on payment of half the produce but that no tenancy in respect of that possession had been proved. This is a finding of fact which must conclude the matter. The learned Vakil for the appellants urges that sufficient reason has not been given for holding that the presumption arising from the entry in the Record of Rights has been rebutted. The learned Judicial Commissioner had evidence before him upon which he could come to a finding and in second appeal it is incompetent for me to interfere with his decision on findings of fact; The learned Judicial Commissioner, however, while declaring that the defendants have no right to a tenancy, has made a declaration that the lands are zerait. Now, this term is not known to the Chota Nagpur Tenancy Act and if the learned Judicial Commissioner intended to find that the lands were the privileged lands of the landlord within the meaning of Chapter XIV, he should have clearly stated that custom as required by Section 118 had been proved, but there is no clear finding in his judgment as regards any such custom. The learned Vakil for the respondents, however, agrees to accept a decree merely declaring that the defendants have no tenancy in the lands in suit.

The order, therefore, that I will make is that the decree of the learned Judicial Commissioner be set aside and in lieu thereof let a decree be made declaring that the defendants have no right of tenancy in the lands in suit. The appeal is, therefore, decreed in this modified form. The respondents will get their costs in all the Courts.