Thakur Chandra Mohan Singh vs Ahlad Mahato

Adami, J.—The opposite party filed a suit to recover possession of four plots of land Nos. 341. 344, 347 and 348 in mauza Sameidih. The plots 341 and 344 have been recorded in the settlement in 1924 as the jungle bari land of the defendant landlord, plots 347 and 348 were recorded as the raiyati land of defendants 5, 6, 7 and 8 under the landlord. Only three plots covering 21 bighas have been recorded in the opposite party''s name; those are plots 342, 343 and 346.

The opposite party, who was the plaintiff in the suit, claimed that all these lands had been made over to him for reclamation under a Chhar Sanad after payment of salami in 1313 by the landlord, and that he had been in possession for more than 12 years and that the landlord had in 1329, corresponding to 1922, given him a registered patta in respect of these lands.

Nevertheless, at the settlement the lands, the four plots 341, 344, 347 and 348, had been recorded as I have stated above, and, in spite of the fact that in 1925 the landlord had given him a Chhar sanad, the landlord''s servants had turned him out of the lands after making an application u/s 64, Chota Nagpur Tenancy Act for his ejection from plots 341 and 344. The case u/s 64 was decided against the opposite party on 19th July 1926. The defence was a denial that plots 341 and 344, 347 and 318 had ever been settled with the plaintiff opposite party. The landlord denied the Chhar Sanad of 1925, and it is asserted that the patta of 1922 covered only 10 bighas, forming the plots 342, 343, 346. The Sanad of 1330 was condemned as a forged document.

Now the lands comprising the four, plots, which are in dispute, aggregate an area of about 163 bighas. The learned Munsif first considered the question whether, having in view the fact that u/s 65, Chota Nagpur Tenancy Act the plaintiff had been ejected from plots 341 and 344, the civil Court could have jurisdiction to try the suit. He came to the conclusion that the Court would have jurisdiction if it was found that the plaintiff was a tenant of the lands and had a right of occupancy, as then it would be clear that the Deputy Commissioner could have no jurisdiction to make the order u/s 65. He then proceeded to determine whether the plaintiff was a tenant of the plots in suit. He found that Ex. 2, a registered patta, gave certain boundaries and described the area as 10 bighas by estimate or guess, and that it could not be imagined that, when 10 bighas were mentioned, the patta could be intended to cover the area of 163 bighas covered by the plots in dispute.

Furthermore, the earlier Chhar Sanad had mentioned the area as three bighas by guess, and he came to the conclusion that probably as the area of reclamation increased a fresh patta was given, and in 1922 the area was about 10 bighas. Ex. 2 stated further that the plaintiff within the boundaries given in the patta was in possession by cultivation of the lands which he had reclaimed. The salami to be paid in 1922 was only Rs. 100 and the yearly rent was to be only Rs. 5 and therefore the learned Munsif considered that the whole of the 163 bighas could not have been included in the patta. There were boundaries given in the patta, but the learned Munsif says that they are so vague that it is impossible to locate them with precision and that no commission had been taken out for the purpose of identifying them. The plaintiff had been present at the settlement operations, and still had made no claim to the plots in suit. He found that the plaintiff had failed to prove his title and to show that the khatian was wrong and dismissed the suit.

The learned Subordinate Judge on appeal found that the learned Munsif had formed his opinion as to jurisdiction on wrong grounds. He rightly found that the question whether the plaintiff required consent or not was a question which would be considered and determined by the Deputy Commissioner u/s 65. He noticed that u/s 258, Chota Nagpur Tenancy Act no suit could be entertained in any Court to vary, modify or set aside directly or indirectly an order of a Deputy Commissioner u/s 65 of the Act; but he came to the finding on the analogy of Section 139 of the Act that the word " suit " in Section 258 could only apply to possessory suits under the Specific Belief Act, and not to suits for recovery of possession based upon documents of title, and therefore the civil Court had jurisdiction to deal with the plots 341 and 344 in the present suit.

In my opinion the learned Subordinate Judge was wrong in this finding as to the jurisdiction of the Court to consider the question of plots 341 and 344 regarding which an order had been passed by the Deputy Commissioner u/s 65. Section 139 gives a list of suits and applications which are cognizable only by a Deputy Commissioner. That is a very different thing from the express provision u/s 258 that where an order has been passed by a Deputy Commissioner u/s 65 no suit shall be entertained in any Court to vary, modify or set aside directly or indirectly such order or decision. In my view the Court had no jurisdiction to enter into the question of title or possession to plots 341 and 344.

The learned Subordinate Judge then proceeded to look into the question whether Exs. 1 and 2 covered the plots in suit. He found that it was difficult to locate the lands settled under Exs. 1 and 2 without a map prepared by a commissioner, and says that it is a pity that the plaintiff did not move the learned munsif to issue a commission for the purpose of getting the boundaries of the block mentioned in the documents located on the spot and a map prepared. He held that justice demands that a commissioner should be appointed and he, therefore, passed an order that, on the plaintiff appellant paying Rs. 50 to the respondents, a survey knowing commissioner should be deputed to fix the boundary and prepare a map. It is against this order that the present application is made.

It is pointed out that it was for the plaintiff to prove that his documents covered the lands which he claimed, and that he took no steps in the trial Court to show by a map or otherwise that these lands were included within the documents, Exs. 1 and 2. I fully agree with the learned Counsel for the petitioner that this is not a case in which the appellate Court should have allowed additional evidence to be called in order to help the plaintiff to prove a claim which was very vague. There was no neglect by the Court itself; the neglect was on the part of the plaintiff who failed to produce evidence to make his case clear. He came with a claim that an area of 163 bighas was included within the boundaries shown in the two documents, Exs. 1 and 2, the latter of those two documents showing that the area settled was about 10 bighas. There was a great burden on the plaintiff to show that though only 10 bighas was mentioned, the boundaries really contained 163 bighas.

The order for the appointment of a commissioner must be set aside and on the findings it is quite clear that the plaintiff''s suit could not succeed, the Court having no jurisdiction to try the case with regard to plots 341 and 344, and the plaintiff having failed altogether to show that the other plots he claimed were included within Ex. 2. The application is allowed with costs, the order of the lower appellate Court is set aside and the order of the munsif dismissing the suit is restored. Hearing fee four gold mohurs.