Madhab Poddar vs Lall Singh Bhumij

Adami, J.—The plaintiff in this suit sought to eject the defendant from the lands asserting that he was an occupancy raiyat and the defendant was an. under-raiyat under him. The defendant set up a claim of occupancy right on the basis of two leases, each of a permanent nature, granted by the father of the plaintiff and the mother of the plaintiff, respectively, in the years 1301 and 1304.

The Munsif decreed the suit in part but on appeal to the District Judge the appeal was dismissed.

A point was taken before the lower Appellate Court that no suit was maintainable, having in view the provisions of Section 139, Clause (4) of the Chota Nagpur Tenancy Act. The learned District Judge found that Clause (4) of Section 139 only bars suits which are under the Act and that there was no section in the Act providing for the ejectment of an under-tenant. The Courts have found that the defendant was merely an under-tenant.

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 Commissioner. 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 raiyats. There is, however, a provision, namely, Section 46, Sub-section (4) which allows a tenant to approach the Deputy Commissioner with an application to eject an undertenant 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 u/s 46, Sub-section (4). At the time the suit was instituted Section 139 had not been amended by Section 38 of the Act of 1920. That Section 38 only came into force in 1924, and Clause (4) of Section 139, at the time that the suit was brought, referred only to suits under the Act to eject a tenant from agricultural land; there was no mention in that clause of applications.

The Court below, however, has failed to notice Section 139A which was introduced into the Act by the Amending Act of 1920 and came into force before the suit was instituted. u/s 139A no Court may entertain a suit concerning a matter in respect of which, an application is cognizable by a Deputy Commissioner u/s 139. Now, Section 46 gives the Deputy Commissioner jurisdiction to deal with an application for ejectment of an under-tenant. This has been held by Teunon, J. In the case of Bhola Nath Mandal v. Chhota Gunaram Mighi 23 Ind. Cas. 407. At the time when that judgment was passed the Act of 1908 had not been amended by trie1 Act of 1920, so that the provisions of Section 139A could not be taken into consideration by Teunon, J., and those provisions altogether alter the position. It was, however, decided in that case that Section 46 Sub-section (4) covers the case of the ejectment of an under-tenant by a tenant.

u/s 46, then, an application for the ejectment of an under-tenant was cognisable by the Deputy Commissioner and under Clause (8).of Section 139, as it stood before the amendment and as it still stands, an application u/s 46 is an application cognizable by the Deputy Commissioner. Thus it seems clear that under the terms of s 139A, no suit could be brought in the Civil Court for the ejectment of an undertenant by his immediate landlord. In this view, then, this appeal must succeed and the decree of the lower Courts must be set aside with costs in all the Courts.

Das, J.

I agree.