Sukul Lakhpat Ram vs Raghu Koeri and Others

Mullick, Ag. C.J.

The plaintiff claims to be an occupancy raiyat since 1900. In 1914, defendant 1, while holding under a thika lease from the landlord dispossessed the plaintiff. The thika expired in 1915, and in 1918 the plaintiff made an application to the Deputy Commissioner u/s 71, Chota Nagpur Tenancy Act 1901, to be restored to possession. That application was dismissed, and the present suit was brought in 1921 for a declaration of title as occupancy raiyat and recovery of possession. Defendant 1 pleaded that he and not plaintiff was the occupancy raiyat. An issue was also raised on the ground of limitation and another on the ground of jurisdiction. The Munsif found that the plaintiff had proved his title as raiyat and that the defendant had no title at all.

On the question of limitation he found that the plaintiff had been dispossessed by defendant 1 in the capacity of thikadar, but that there was no special period of limitation such as under the Bengal Tenancy Act and that the ordinary period of limitation of 12 years would apply. With record to the plea of jurisdiction, the learned Munsif held that as this was a suit for declaration of title with consequential relief it did not come under the bar of Section 139, Clause (5), Chota Nagpur Tenancy Act (6 of 1908). He, therefore, decreed the suit with mesne profits.

In appeal the only point argued before the Subordinate Judge was that regarding title and possession. Both were found in the plaintiff''s favour and the appeal was dismissed. In second appeal to this Court the only point taken before Mr. Justice Kulwant Sahay was that of jurisdiction.

It was there argued that Section 139-A and Clause (5), Section 139, Chota Nagpur Tenancy Act as amended in 1920 and 1924, apply and that as the dispossession in this case was by the landlord, no suit is entertainable for the recovery of possession.

To determine this point an examination of the amending Acts of 1920 and 1924 is necessary.

Section 139-A was added in 1920. It states that no suit shall be entertainable concerning any matter in respect of which an application is cognizable by the Deputy Commissioner u/s 139. If Section 139-A applies and if the expression "suit" includes all suits and is not limited only to summary suits for recovery of possession, then the defendant is entitled to succeed.

But the general principle is that where vested rights are concerned an amendment has no retrospective effect unless it is so stated expressly in the Act. We must, therefore, hold that Section 139-A cannot have any retrospective operation over a right of action which accrued in 1914.

For the same reason Section 139, Clause (5) also as amended in 1924 cannot have any application. Here again (assuming that the word "suits" include all suits), the clause cannot have retrospective action in respect of a right which accrued before 1924, and this view is supported by Chaudhry Gursaran Das and Others Vs. Akhouri Parmeshwari Charan and Others., .

Reference was made to Section 46, Chota Nagpur Tenancy Act; but that section clearly shows that it is intended to be retrospective except as regards transactions after 1903.

Assuming, however, that Sections 139 and 139-A have retrospective operation, then the question is whether there was within the meaning of Clause (5), Section 139 an unlawful ejectment by the landlord or by any person claiming under the landlord or through the landlord. It is said that the learned Munsif has found, while deciding the issue of limitation, that the dispossession was made by defendant 1 as thikadar; and that on the question of jurisdiction the appellant is entitled to call that finding in aid. But the finding was liable to be revised by the Subordinate Judge in appeal and if the defendant had urged the plea of jurisdiction before the Subordinate Judge, that Court would have gone into the evidence on which the Munsif''s finding was based. By refusing to take the plea of jurisdiction before the Subordinate Judge, the defendant must be taken to have acquiesced in the position that Section 139, Clause (5) did not apply, and it was, therefore, too late to ask in second appeal that the question of jurisdiction should be re-considered.

It is urged that a point of law can always be taken in second appeal; but that proposition is limited to cases where the point of law does not require a finding of fact to support it. Here the learned Judge of this Court has pointed out that the point of law requires a finding on the question of dispossession, and in the circumstances we must assume that in the first appeal Court the defendant was unable to prove that dispossession was by the landlord.

Therefore, in the circumstances of this case, Section 139, Clause (5) will not apply in any event Dhuplal Sahu Vs. Bhekha Mahto, was cited for the purpose of showing that "suits" in Clause 5, Sections 139 and 139-A include all suits and are not limited as was held in Chaudhry Gursaran Das and Others Vs. Akhouri Parmeshwari Charan and Others., only to summary suits.

The learned Judge of this Court has not gone into that question and it is not necessary for the decision of this case to decide which view is correct.

It is sufficient to say that on the ground that the present Act does not apply to the subject-matter of the suit and also on the ground that if it does apply the suit is not barred under Clause 5, Section 139, the appeal fails and must be dismissed with costs.

Jwala Prasad, J.

I agree.