Luthra Uraon vs Samua Uraon and Others

Bennett, J.—This is an appeal against the decision of the Subordinate Judge of Ranchi reversing a decision of the Additional Munsif at Gumla in a suit in which the plaintiffs, the respondents to this appeal, claimed a declaration of title and ejectment of the defendant from certain lands of which they claimed to be the owners as heirs of their deceased uncle, Nanda Uraon. It appears that in 1928 Nanda Uraon granted a five year zerpeshgi lease to one Baraik Anant Rai who later assigned the benefit of the zerpeshgi to the defendant and in the 1935 record-of-rights the defendant was recorded as being in possession of the disputed land.

The plaintiffs'' case was that their uncle, Nanda Uraon, had left the village some time about the year 1933 and had gone away to Bhutan, leaving the land in question in their custody and that Nanda Uraon had died in Bhutan without leaving any male issue. In para 4 of their plaint they alleged that it was clear from the khatian that the defendant had obtained possession of the land under the five year zerpeshgi lease of 1928. In para 6 they alleged that the defendant had been in possession for more than five years and that for 15 years he had been appropriating the produce of the land and bad by this means realised the zerpeshgi money several times over. They further alleged that the defendant was not, in any event, entitled to remain in possession of the land for over five years and that the plaintiffs were, therefore, entitled to recover khas possession. The plaintiffs also stated that they had filed a petition before the Deputy Commissioner under S. 46, Chota Nagpur Tenancy Act, and that the Sub-divisional Officer of Gumla, exercising the powers of a Deputy Commissioner rejected that petition on the ground that the period of three years mentioned in the old S. 46(4) of the Act had elapsed and that they, the plaintiffs, were not entitled to the benefit of the provisions of the new S. 46(5) of the Act, and referred the parties to the Civil Court.

The defendant denied the plaintiffs'' title and contended that the suit was time barred, alternatively that the plaintiffs were not entitled to possession of the land without paying the zerpeshgi money of Rs. 400 and also that, in any event, the Civil Courts had no jurisdiction to entertain the suit.

3a. The Courts below have arrived at concurrent findings on the question of title and I can find no sufficient reason to differ therefrom. There was no evidence other than that of D.W. 2 before the learned Munsif that Nanda Uraon ever had a son. P.W. 1, one of the plaintiffs, stated that when he left the village Nanda Uraon had only three daughters. The learned Munsiff, for sufficient reason, disbelieved D.W. 2. It was admitted that in the case of Uraon families, females'' have no right of inheritance. It follows that the plaintiffs were prima facie the heirs of Nanda Uraon and that the defendant did not discharge the burden upon him of disproving that prima facie inference.

The next point that was raised in the appeal was that, in any event, the suit was barred by limitation in that more than twelve years had elapsed since the execution of the zerpeshgi and it was suggested that that zerpeshgi transaction was nullified by the provisions of the then S. 46(1), Chota Nagpur Tenancy Act, and that time began to run against the plaintiffs'' predecessor-in-title immediately upon the execution thereof and the consequent adverse possession of the transferee. For some reason, which has not been explained, the original deed of the zerpeshgi was not put in evidence by either side and all we have about it is the description contained in the decision of the Sub-divisional Officer, Gumla, to the effect that it was a lease for five years. In the absence of any evidence that the zerpeshgi lease contained a clause entitling the zerpeshgidar to remain in possession after the expiration of the five year period of the lease, there is nothing to show that this transfer by way of zerpeshgi lease was, in fact, invalidated by the provisions of the old S. 46(1) of the Chota Nagpur Tenancy Act, which were in force in 1928. So far as the evidence goes, therefore, the zerpeshgi lease was a valid lease for a period of five years and the possession of the defendant and his predecessor-in-title did not become adverse to the plaintiffs or their predecessor-in-title until 1933. It follows that the appellant has not discharged the burden of the proof upon him of showing twelve years'' adverse possession prior to the date of the institution of the suit on 13-3-1943.

It was next contended by Mr. Ray Paras Nath, whose ability in the elucidation of some of the difficult points hereafter dealt with has been of considerable assistance to the Court, is that the suit was barred under the provisions of S. 258 Chota Nagpur Tenancy Act, by the decision of the Deputy Commissioner on the application to him under the old S. 46(4).

In considering the alleged bar to the jurisdiction of this Court both under S. 258 above-mentioned and under Ss. 139 and 139A, Chota Nagpur Tenancy Act, hereafter mentioned, we have to bear in mind that the CPC confers jurisdiction upon the civil Courts to hear and determine all civil suits. The right of every individual to have his suit determined by the ordinary Courts is an inherent part of the rule of the law and is, therefore, one of the fundamental liberties of the subject. When, therefore, the Legislature takes away that right, it is to be presumed that it does not intend to do so to any greater extent than the effect of the words used and the apparent object of the particular enactment necessarily require.

In S. 258, Chota Nagpur Tenancy Act, there are, for our purpose, two separate and distinct provisions which affect the jurisdiction of the civil Courts. They are:

(a) the provision that--

No suit shall be entertained in any Court to vary, modify or set aside, either directly or indirectly, any decision, order or decree of any Deputy Commissioner or Revenue Officer in suit, application or proceeding under .... S. 46 sub-S. (4). . . except on the ground of fraud or want of jurisdiction.

and (b) the provision that--

every such decision, order or decree of any Deputy Commissioner or Revenue Officer shall have the force and effect of a decree of the civil Court in a suit between the parties.

Whilst the effects of these two provisions overlap to a great extent, they are quite distinct from each other and require separate consideration.

In regard to the provision under (a) above, the plain wording thereof indicates clearly that what is intended is to bar suits whose object is "to vary .... the decision .... of any Deputy Commissioner.....", and the word "indirectly" must be construed in the light of this intention. Where the whole effect aimed at in the suit will be "to vary .... the decision.... of the Deputy Commissioner ....", that will ordinarily be taken as its indirect object even though it be not so expressed in the plaint, and such a suit will be barred but where the main object of the suit is otherwise than "to vary the decision of the Deputy Commissioner. . .", the mere fact that the suit, if decreed, will incidentally vary the effect of the decision will not suffice to bar the suit. In this connection I would quote the following extract from the judgment of Fazl Ali. J. (as he then was) in 15 pat. 229: Gobardhan Sahu Vs. Lalmohan Kharwar and Others,

there is nothing in S. 258 of the Act to bar a suit for declaration of title and possession and other reliefs, which the Revenue Officer could not grant though it may be to some extent to vary, modify, or even indirectly set aside a decision or decree of a Deputy Commissioner.

In order to judge whether the object of the subsequent suit in a civil Court is "to vary.... the decision.... of the Deputy Commissioner ...", the substance and scope of the actual decision of the Deputy Commissioner must he carefully ascertained and then compared with the substantial scope and object of the suit.

Thus, if following a transfer validated by sub-sections (2), (3) or (4) of the present S. 46, Chota Nagpur Tenancy Act, a rayat, after the expiration of the period of transfer, applies to the Deputy Commissioner under the present 8. 46(5), Chota Nagpur Tenancy Act, for ejectment of the transferee and the Deputy Commissioner after hearing the parties on the points at issue, namely, the fact that the applicant is or is not the rayat, the fact that the transfer is or is not valid and the fact that the application has or has not been made within the period prescribed by the sub-section, orders the ejectment of the transferee then, since the period of limitation prescribed by the present sub-S. (5) of S. 46, Chota Nagpur Tenancy Act, is the same as that prescribed by the general law of limitation, the sub-stance and scope of his decision is the same as would be the substance and scope of a civil Court in a suit in which the rayat claims a declaration of his title as such and of the validity and subsequent expiration of the transfer and also the ejectment of the transferee, and it follows that such a suit will thereafter be barred by the decision of the Deputy Commissioner.

But, if the Deputy Commissioner on an application under the old sub-S. (4) of S. 46, Chota Nagpur Tenancy Act, refused to order the ejectment of the transferee on the ground that the application has been made to him after the period of three years mentioned in the old sub-S. (4) of S. 46 his decision will not under, S. 258, Chota Nagpur Tenancy Act., bar a subsequent suit in the civil Court for a declaration of the rayat''s title and ejectment of the transferee, because the substance and scope of his decision will be quite different to that demanded from the civil Court and the decision of the civil Court will not, therefore, vary, modify or set aside the Deputy Commissioner''s decision, though of course, in such a case it will be a matter for consideration whether in the particular circumstances the suit is or is not barred by some other provision of the Chota Nagpur Tenancy Act.

In my opinion, therefore, the first provision of S. 258, Chota Nagpur Tenancy Act, does (not operate to bar the present suit.

In regard to the second provision of S. 258, Chota Nagpur Tenancy Act, set out under (b) above, the effect of this provision, for the purposes of the matter in issue in this appeal, is to bring into play the ordinary principles of res judicata as if the decision of the Deputy Commissioner were that of a civil Court. This provision, in so far as it bars a suit in a Civil Court founded upon substantially the same cause of action as that relied upon in the proceedings before the Deputy Commissioner, largely overlaps the first provision in S. 258, Chota Nagpur Tenancy Act, but it goes further and has the effect of barring the trial in the civil Court of any issue which was or which might and ought to have been raised in the proceedings before the Deputy Commissioner: provided, of course, that such issue in the civil Court arises in a suit which the Deputy Commissioner was competent to try.

The question whether this second provision of S. 258, Chota Nagpur Tenancy Act, operates to bar the present suit depends, therefore, upon whether the Deputy Commissioner had the jurisdiction to entertain the present suit. His jurisdiction, if any, must arise from the old S. 46, because the present S. 46(5) of the Act applies only to transfers made after the amendment of 1938 came into force and though the old S. 46(4) was repealed by the Amending Act of 1938, it remains in force for the purpose of enforcing any right or remedy granted thereunder by virtue of the provisions of S. 8, Bihar and Orissa General Clauses Act, 1917. But, whatever may be the true construction of the old S. 46(4), it is perfectly clear that in 1942 the period of three years mentioned in that sub-section had elapsed and that the Deputy Commissioner could no longer entertain any application thereunder. In those circumstances, it lis impossible, in my opinion, to say that in 1942 the Deputy Commissioner was competent to try the present suit within the meaning of S. 11, Civil P.C., unless the opening words of the old S. 46(4) can properly be understood, not as affecting the jurisdiction of the Deputy Commissioner to hear the application therein authorised, but as imposing merely a limit of time and demonstrating an intention on the part of the Legislature to limit the enforcement of the prohibition of transfers contained in the old S. 46(1), Chota Nagpur Tenancy Act, to cases where the transferor applied for relief under sub-S. (4) thereof. This latter question also arises in relation to the bar created by Ss. 139 and 139A, Chota Nagpur Tenancy Act.

I turn, therefore, to the alleged bar to the present suit under Ss. 139 and 139A, Chota Nagpur Tenancy Act which constitutes the real substantive point in the appeal. The appellant relied upon the decision of a Division Bench of this Court in 6 Pat. 69 : Madhab Poddar Vs. Lall Singh Bhumij, which appears to be the only direct authority on the point raised before us and where it was held that:

No suit for the ejectment of an under-tenant by his immediate landlord lies in the civil Court under S. 139A read with S. 46(4), Chota Nagpur Tenancy Act, 1908.

I have read and re-read the record of this case and it is to my mind perfectly clear that the learned Judges who decided that case never had in mind and never purported to decide the question that arises here, namely, whether the jurisdiction of this Court is ousted by Ss. 139 and 139A, Chota Nagpur Tenancy Act, although at the date of the institution of the suit, it was not open to the plaintiff to have recourse to the Deputy Commissioner under the old S. 46(4), Chota Nagpur Tenancy Act. Adami J. in the course of his judgment stated:

Before us the only point taken is that the suit was in fact not maintainable by the civil Court; it should have been instituted in the Court of the Deputy Com-missioner. It is true that there is no specific section in the Chota Nagpur Tenancy Act providing for the ejectment of an under-tenant, though there are provisions for the ejectment of occupancy raiyats and non-occupancy raiyat. There is, however, a provision, namely, S. 46, sub-S. (4), which allows a tenant to approach the Deputy Commissioner with an application to eject an under-tenant at any time within three years after the expiration of the period for which the raiyat has transferred his right in the holding or any portion thereof. The section allows the Deputy Commissioner in his discretion, on the application of a raiyat, to put the raiyat into possession of such holding or a portion thereof in the prescribed manner. It was open, therefore, to the plaintiff in this case to have applied to the Deputy Commissioner to take action under S. 46, sub-S. (4).

I do not think that his Lordship could possibly have used this language if he had in mind any possibility that at the date of the institution of that suit it was not open to the plaintiff in that suit to obtain relief from the Deputy Commissioner. There is no mention throughout the report of any question as to the lapse of the three year period. Moreover, the permanent leases there in question were granted in 1894 and 1897 respectively and, so far as I have been able to ascertain, were (not?) invalidated by any legislation prior to the Chota Nagpur Tenancy Act (Amendment) Act, 1903. They were certainly not invalidated by S. 5 of that Act nor by S. 46(1), Chota Nagpur Tenancy Act, 1908, neither of which had any retrospective effect, and, on the face of the report it is difficult to understand what recourse it was that the plaintiffs in that suit in fact had to the Deputy Commissioner.

In my opinion, therefore, the decision in 6 Pat. 69 is not binding upon us for the purposes of the point raised in this appeal.

It appears from the decision of the Deputy Commissioner that the zerpeshgi in question was, a lease for five years. If that was a valid lease, then in 1933 at the expiration of the lease, the plaintiffs'' predecessor-in-title could at any time during the following three years have applied to the Deputy Commissioner for an order of ejectment under the old S. 46(4).

We do not have to consider the possible alternative in which the zerpeshgi lease was invalid by reason of some clause therein entitling the tenant to retain possession after the expiration of the five years, because, firstly in that hypothesis this suit is, in any event, time-barred and secondly because I cannot read the old S. 46(4), Chota Nagpur Tenancy Act, as having any possible application to the case of any invalid transfer. That sub-section falls to be read with the operative part of sub-S. (1) of old S. 46 as follows:

46.(1) No transfer by a rayat of his right in his holding or any portion thereof--

(a) by mortgage or lease, for any period, expressed or implied, which exceeds or might in any possible event exceed five years, or

(b) by sale, gift, or any other contract or agreement, shall be valid to any extent:. ...

(4)At any time within three years after the expiration of the period for which a rayat has, under this section, transferred his right in his holding or any portion thereof, the Deputy Commissioner may, in his discretion, on the application of the rayat, put the rayat into possession of such holding or portion in the prescribed manner.

The words in the sub-section "a rayat has, under this section, transferred his right" can only properly be construed as referring to a transfer authorised by the section and not to a transfer prohibited by the section. To hold otherwise would be to deprive the rayat of his otherwise immediate right of recourse to the civil Court and postpone his remedy to the expiration of the transaction which the section forbids and this would, in any event, be absurd, since it would defeat the whole object of the legislature as demonstrated by sub-section (1). It follows, therefore, that unless a rayat chose to add a claim in the alternative for a fair rent and so bring himself within sub-S. (4A) of S. 189, Chota Nagpur Tenancy Act, his only means of obtaining the ejectment of a person whom he had let into possession of his holding under a transfer rendered invalid by S. 46(4), Chota Nagpur Tenancy Act, was by suit in the civil Court. This position is not without significance in relation to the true construction of the old S. 46 and Ss. 139 and 139A, Chota Nagpur Tenancy Act.

The provision in S. 139(4) as to "suits and applications under this Act to eject any tenant of agricultural land" would not appear to have any application to the ejectment of a person let into possession under a valid lease, as, at the expiration thereof, he is no longer a tenant.

The provision in S. 139(4) which envisages suits or applications "under the Act" to cancel any lease of agricultural land appears to refer solely to the provisions of S. 178 of the Act and to have no relevance for our purpose.

The relevant provisions of S. 139, Chota Nagpur Tenancy Act, therefore, for the purposed of this appeal are as follows:

The following suits and applications shall be cognizable by the Deputy Commissioner, and shall be instituted and tried or heard under the provisions of this Act, and shall not be cognizable in any other Court, except as otherwise provided in this Act, namely:

* * * * *

(8) all suits and applications in respect of which jurisdiction is conferred by this Act on the Deputy Com-missioner.

For our purposes therefore the operative parts of S. 139 may be correctly paraphrased as follows: No ''suit'' or ''application'' in respect of which jurisdiction is conferred by this Act on the Deputy Commissioner shall be cognizable in any other Court. It is convenient immediately to compare this provision with the provisions of S. 139A which runs as follows:

Subject to the provisions of Chapter 12, no Court shall entertain any suit, concerning any matter in respect of which an application is cognizable by the Deputy Commissioner under S. 139, and the decision of the Deputy Commissioner on any such application shall, subject to the provisions of this Act relating to appeal, be final.

It appears at once that the first part of S. 139A is designed to fill the lacuna in S. 139 that though a civil Court might be debarred from taking cognizance of an application in respect of which jurisdiction was conferred by the Act on the Deputy Commissioner, it would not be debarred from taking cognizance of a suit concerning the same subject-matter. Thus if S. 139A did not exist, a person though debarred from proceeding by way of a mere ''application'' therefore in a civil Court, might nevertheless have been allowed to bring a ''suit'' in a civil Court for the ejectment of a transferee on the same grounds and in the same circumstances as an ''application'' for that purpose might have been brought before the Deputy Commissioner.

It is clear, therefore, that, apart from the remedial distinction between "a suit" and "an application" the scopes of Ss. 139 and 139A in relation to the jurisdiction conferred upon the Deputy Commissioner by the old S. 46(4), Chota Nagpur Tenancy Act, are the same and "the matter" excluded by way of suit from the jurisdiction of the civil Courts under S. 139A is the same as what is excluded therefrom by way of application under S. 139.

In relation to the old S. 46(4), Chota Nagpur Tenancy Act, what is excluded from the jurisdiction of the civil Courts is the application in respect of which jurisdiction is thereby conferred upon the Deputy Commissioner, that is to say, the jurisdiction "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 portion thereof" to put the raiyat in possession. It is not very easy on the face of this section to determine whether the period of three years therein mentioned relates to the act of the Deputy Commissioner of putting the raiyat in possession or to the application therefore by the raiyat, but happily this question, in the view which I have taken, is immaterial.

What we have to determine is whether the Legislature in the old S. 46(4), Chota Nagpur Tenancy Act, has placed the whole subject of the ejectment, at the instance of a raiyat, of a transferee, after the expiration of a valid transfer, within the jurisdiction of the Deputy Commissioner and, having done so, has thereafter imposed a limitation upon the raiyat''s right of action or whether it is only the ejectment of such a transferee within the period of three years from the expiration of a valid transfer that has been so placed within the Deputy Commissioner''s jurisdiction. In other words, does the opening phrase in the old S. 46(4), Chota Nagpur Tenancy Act, "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 portion thereof" go to the jurisdiction of the Deputy Commissioner or not.

In my opinion, this opening phrase in the old S. 46(4), Chota Nagpur Tenancy Act, must be construed as going to the jurisdiction of the Deputy Commissioner for the following reasons:

(1) The sub-section starts off with the provision as to time and the words used therefore are quite inapt to describe a prior conferring of jurisdiction followed by a limitation of the right of action conferred by the old S. 46(1).

(2) In the absence of the old S. 46(4), Chota Nagpur Tenancy Act, the old S. 46(1) would have entitled the raiyat to go to the civil Court and obtain the ejectment of the transferee at any time within twelve years after the expiration of the transaction, if it was a valid transaction. Having regard to the considerations above set out which, in my opinion, are always applicable to the construction of any provision by which the Legislature purports to restrict the jurisdiction of the civil Courts, there is, I think, provided that the words used are capable of construction in that sense, a presumption that the Legislature in allowing the raiyat the more summary and simple remedy by way of application to the Deputy Commissioner during the period of three years in question, did not intend to debar him of his right of recourse to the civil Courts during the remaining nine years which would otherwise have been open to him.

(3) As I have already stated, the old S. 46(4) did not apply to invalid transfers and, therefore, nothing in the Chota Nagpur Tenancy Act operated to debar the raiyat from putting the right of action conferred upon him by the old S. 46(1), following such an invalid transfer into suit in the civil Courts. It would be really extra-ordinary if the Legislature in those circumstances had decided to deprive a raiyat of his similar right of recourse in relation to a valid transfer. The whole of chap. 8, Chota Nagpur Tenancy Act, if not indeed the whole Act, is intended to benefit raiyats and not to prejudice them. The Legislature understandably benefited a raiyat who had entered into a valid transfer of his holding by giving him a special, simple and summary remedy to obtain re-possession of his holding at the expiration of the transfer. It would be quite inconsistent with the Legislature''s intention to benefit the raiyat to suppose that it thereafter intended to deprive him of the rights already conferred upon him by the old S. 46(1).

For these reasons I am of opinion that the appeal should be dismissed with costs.

I ought to mention in conclusion that this appeal came, in the first instance, before Shearer J. who referred it to a larger Bench on the ground that it raised the question of law as to whether the possession of the defendants, which was admittedly originally taken with the permission of Nanda Uraon, became immediately adverse to him or only became so adverse on a demand for possession from Nanda Uraon. Having regard, however, to the fact, as already mentioned, that the defendants failed, in any event, to prove that they were in adverse possession for more than twelve years prior to the institution of the suit, we were of opinion that this actual point of law did not arise although, in the result, other points of law of equal difficulty have in fact arisen.

Beevor, J.

I was at first doubtful whether the suit, out of which this appeal arises, was maintainable in the civil Court, but I am now satisfied that the conclusion reached by my learned brother is correct. I should, however, like to set out shortly my own reasons for accepting this conclusion.

The section to which my learned brother has referred as the old S. 46(4), Chota Nagpur Tenancy Act, is the section in the form in which it stood from 1924 to 1938 and that was the section in force in 1928 at the date of the transfer now in question and continued in force until beyond three years from the expiry of the five year period of the zerpeshgi created by the transfer. Although that section was repealed in 1988 and a new S. 46 substituted for it, the effect of S. 8 of the Bihar and Orissa General Clauses Act, 1917, was to maintain the rights and liabilities which had accrued under that section and also the remedies for enforcing such rights. It follows, therefore, that the validity of the transfer in question is governed by that old S. 46, Chota Nagpur Tenancy Act, and any rights in respect of the transfer which were created by that section would be unaffected by its repeal in 1938.

As my learned brother has pointed out, there is nothing in the pleadings or the evidence in this case to show that the transfer in question was for a period which exceeded or might in any possible event exceed five years. It must, therefore, be taken that the transfer was a valid transfer for the period of five years Section 46(4), therefore, gave the raiyat, the transferor, a right to apply to the Deputy Commissioner within three years from the expiry of that five year period to recover possession. At present I see no reason to doubt the view of my learned brother that the old S. 46(4) did not apply in the case of an invalid transfer, but for the purposes of this appeal it is unnecessary to make any decision on the point. I agree with the finding of my learned brother that the plaintiffs are the heirs of Nanda Uraon and S. 6(1), Chota Nagpur Tenancy Act, defining the word "raiyat" specifically provides that it shall include the successors-in-interest of the person who originally acquires such a right. Therefore, after the death of Nanda Uraon, the plaintiffs had the right to make that application under S. 46(4), Chota Nagpur Tenancy Act, provided it was made within the time allowed.

Actually no application was made within the period of three years from 1938 in which year the five year period of the transfer expired, and although the plaintiffs did present at a later date a petition purporting to be under S. 46(4) it was rightly rejected by the Revenue Officer as being barred by limitation. Section 46(5) of the Act, as it now stands after the amendment of 1938, allows a period of 12 years for an application to the Deputy Commissioner, but that section will apply only to transfers made subsequent to the amendment,

Section 139 of the Act, so far as it is material to the present appeal, runs as follows:

The following suits and applications shall be cognizable by the Deputy Commissioner, and shall be instituted and tried or heard under the provisions of this Act, and shall not be cognizable in any other Court, except as otherwise provided in this Act, namely; * * * *

(4) all suits and applications under this Act, to eject any tenant of agricultural land or to cancel any lease of agricultural land;

* * * *

(8) all suits and applications in respect of which jurisdiction is conferred by this Act, on the Deputy Commissioner; and

Provided that the Deputy Commissioner may, subject to such rules as may be made in this behalf under S. 264, transfer any particular suit or application or any class of suits or applications cognizable by him under this section to a competent Civil Court for trial.

No form of suit is provided under the Act to eject an under-raiyat, and even if the zerpeshgi in question was "a lease" for five years, it is not shown that the defendants were tenants after 1933. Therefore, cl. (4) of this section has no application to the facts of the pre-sent case. Clause (8) however, will apply so far as an application under S. 46(4) by the raiyat to recover possession from the defendants is concerned. This section, however, would not bar the institution in Civil Court of a suit in respect of the matter in respect of which the Act merely provides for an application before the Deputy Commissioner. It seems that it was for this very reason that S. 139A was introduced into the Act by the amendment of 1920. That section runs as follows:

Subject to the provisions of Chapter 12, no Court shall entertain any suit, concerning any matter in respect of which an application is cognizable by the Deputy Commissioner under S. 139, and the decision of the Deputy Commissioner on any such application shall, subject to the provisions of this Act relating to appeal, be final.

Now for three years after some date in 1983 an application under S. 46(4) by the raiyat to recover possession of the property transferred by the zerpeshgi of 1928 was cognizable by the Deputy Commissioner, but the old. S. 46(4) shows clearly that after that period no such application was cognizable by him. There is no doubt that if the present suit is maintainable in the Civil Court, the period of limitation for such a suit will be 12 years from 1933. The question for decision really seems to be whether the words "is cognizable" in S. 139A meant "is cognizable at any time" or "is cognizable at the date when the suit is filed."

I was at first inclined to the view that in the absence of any restrictive words in the section itself the former interpretation should be accepted, but I am now satisfied that this is wrong. My reasons for this conclusion are two-fold. My first reason is that the Legislature is not to be presumed to have excluded the jurisdiction of the Civil Courts in any matter unless there is a clear statutory provision excluding such jurisdiction, and any statutory provision which excludes the jurisdiction of the Civil Court is to be construed strictly and should not be understood as excluding such jurisdiction in any case which is not clearly covered by the wording of that statutory provision.

My second reason is that if S. 139A is restricted to cases in which an application is cognizable by the Deputy Commissioner at the date of suit, this interpretation not only seems to fit in with an intelligible scheme for distribution of functions between the Deputy Commissioner and the Civil Courts but also seems to fit in with the wording of S. 258 of the Act. In order to explain this reason I must deal with the matter in somewhat greater detail. It seems quite reasonable to think that the Legislature might allow the raiyat to proceed by the summary remedy by way of an application to the Deputy Commissioner provided he makes his application within three years; whereas, if he delays the matter, he will have to adopt the more expensive and usually slower remedy provided by a suit.

My learned brother has set out the two separate provisions embodied in S. 258 of Chota Nagpur Tenancy Act and has pointed out that they are quite distinct from each other. I agree with him for the reasons which he has given in holding that the first provision of S. 258 does not bar the present suit and it is only necessary for me in the present connection to consider the second of those provisions. This is the provision which applies to S. 46, sub-s. (4) among other sections of the Act; "every such decision, order or decree of any Deputy Commissioner or Revenue Officer shall have the force and effect of a decree of the Civil Court in a suit between the parties. If the view is accepted that S. 139A applies only so long as an application to the Deputy Commissioner is still cognizable by him, then the effect of this provision embodied in S. 258 is quite easy to understand, namely, that if the raiyat avails himself of the summary remedy provided by S. 46(4), then the result of this application will be exactly the same as if there had been no provision for such a summary remedy and he had proceeded by way of a suit in the Civil Court. If, however, S. 139A is construed as meaning that no Civil Court shall entertain a suit concerning any matter in respect of which an application was at some date cognizable by the Deputy Commissioner, then I should find it difficult to attribute any definite meaning to this provision of S. 258.

As regards the decision in 6 pat. 69, I agree with my learned brother in finding considerable difficulty in discovering on what basis it could be held that any application under S. 46(4) was at any time open to the plaintiff of the suit then in question. It seems to me clear, however, that that case did not decide any proposition of law regarding the circumstances in which an application would lie under S. 46(4) to the Deputy Commissioner. The decision proceeded on the basis that as a matter of fact such an application did lie in that case, and then it proceeded to lay down and apply the legal principle that where such an application lay to the Deputy Commissioner, the suit in the Civil Court was barred by S. 139A. That proposition is in no way inconsistent with the decision at which we have arrived. For these reasons I agree that this appeal should be dismissed with costs.