Thakur Singh, Ramkhelawan Singh, Parmeshwar Singh and Zamindar Singh vs Pardip Singh

Chapman, J.—These appeals are on behalf of certain tenants against whom the Sub-Divisional Officer of Aurangabad passed an order u/s 70 of the Bengal Tenancy Act. The tenants, who were the plaintiffs in the suits out of which the appeals arise, asked for a declaration that the system of division of produce prevails and that the system of appraisement does not prevail and that the order passed by the Sub-Divisional Officer is contrary to law and fact, that it was without, jurisdiction and that the defendant-landlords should be enjoined against taking out execution of the order of the Sub-Divisional Officer.

The facts of the various cases are similar and will be understood by the recital of the facts of one, namely, Title Suit No. 295 of 1914. In that case the plaintiff recites that he is a cultivator of 20 bighas odd, which he holds under the balai system which has been prevailing from time immemorial; that he was recorded at the recent survey as holding under batai after a dispute between him and the landlord on the point; that thereafter the landlord brought a suit against him for arrears of rent and succeeded in obtaining a decree upon the basis of appraisement. The tenant thereupon appealed to the Court of the District Judge and during the pendency of his appeal to the District Judge he made an application to the Sub-Divisional Officer of Aurangabad for a division of his crops. The Sub-Divisional Officer ordered a division of the crops in March 1914, but subsequently, on the objection of the landlord, he altered the order into one for appraisement. After this order had been made the tenant succeeded in his appeal to the District Judge. The first Court decreed the suit upon the ground partly that there was no application before the Sub-Divisional Officer for appraisement of the crops, but that was not the ground upon which the plaint proceeded. If it had been specifically alleged in the plaint that the defendant, though he asked for a review of the order of division, did not make any application for appraisement, it is not improbable that the landlord would have been able to show that in his objection to the division he asked for appraisement. In any case it was not a ground upon which the plaintiff proceeded. The Pleader for the landlord stated in the Munsif''s Court that such an application had in fact been made.

The other ground upon which the Munsif proceeded was that the plaintiffs-tenants had not been given any opportunity of being heard in respect of the report filed by the officer deputed to make the appraisement. In appeal to the learned District Judge the decrees of the Munsif were set aside but with reference to the question whether there was a bona fide dispute within the meaning of the case of Nukheda Singh v. Ripu Mardan Singh 4 C.W.N. 239. With reference to the suggestion that there was only an application by the tenant for division, the learned District Judge held that that objection would not affect the validity of a final order u/s 70. I am of opinion that the learned Munsif was wrong in proceeding upon the ground of the absence of an application for appraisement, which was not a ground upon which the plaint proceeded. I am also of opinion that the dispute as to whether it was a case for appraisement or division was a dispute which the Sub-Divisional Officer could determine, vide Section 70, Sub-section (5) of the Act, I do not feel able to entirely assent to the decision in the case of Baluk Chand Lal v. Nathuni Singh 38 Ind. Cas 85 : 2 P.L.Z. 24, but I am of opinion that if the jurisdiction of an order u/s 69 or 70 is to be impugned it must be impugned upon a specific ground stated in the plaint; it cannot be held to be without jurisdiction merely upon researches made by the Court without reference to the pleadings of the parties and, as I have said, I am also of opinion that the Sub-Divisional Officer had jurisdiction under secion 70 to decide the dispute which took place in the present instance. The real grievance of the tenant was that since the Order u/s 70 was passed he had succeeded in his appeal before the District Judge. That real grievance did not provide any sufficient ground under the law for setting aside the order of the Sub Divisional Officer.

The appeal is dismissed with costs.

Roe, J.

I agree. The order of the Collector made u/s 73 of the Bengal Tenancy Act is u/s 70, Clause (5), declared to be final, subject to the Collector''s power to refer the matter in dispute to a Civil Court. It is open to the Civil Courts to enquire whether in the circumstances of the holding, as admitted or proved in the proceedings under Sections 69 and 70, the Collector had jurisdiction to take action under these sections. If it was common ground, for instance, that the holding bore a cash rental, a degree made u/s 70 would be without jurisdiction, and it may be (I do not venture to express a definite opinion on the point) that if it was common ground that the holding was a batai holding an order for appraisement might be held to be without jurisdiction; but where, as in the present case, the question whether the holding was a batai or a danabandi holding has been investigated by the Collector, his decision upon the question is undoubtedly final and the action taken on the basis of that decision cannot be said to have been without jurisdiction.