Jharkhand High Court
Tulas Kuer And Ors. vs Parsuram Singh And Ors. on 25 April, 2007
Equivalent citations: [2007(3)JCR280(JHR)], 2007 (2) AIR JHAR R 831, 2007 A I H C 2765 (2007) 3 JCR 280 (JHA), (2007) 3 JCR 280 (JHA)
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
Page 2181
1. This appeal by the defendants-appellants is directed against the judgment and decree dated 13.10.1988 passed by 4th Additional District Judge, Palamau at Page 2182 Daltonganj in Title Appeal No. 73/78 dismissing the appeal and confirming the judgment and decree dated 30.6.78 passed by Additional Munsif, Daltonganj in Title Suit No. 215/68.
2. Plaintiff-respondents filed Title Suit No. 215/68 against the defendants for declaration that they are raiyats of the suit land and entitled to recover possession and also mesne profits. Plaintiffs' case is that the vendors of the plaintiffs and the defendants are descendants of one Jainath Singh who had 3 sons, namely, Ramlal Singh, Sundar Singh and Shyam Narain Singh. Ramlal Singh had three sons, namely, Damodar Singh, Bhagirath Singh and Jaisar Singh. Sundar Singh had one son Lochan Singh and Shyam Narain Singh had two sons Adhin Singh who died issue-less and Halkhori Singh. Plaintiffs' further case was that Jainath Singh had held Milkiat share and Raiyati land in village Mahuliya which was sold by Jainath Singh during his life time and the land of village Sakaldipi remained in the family of defendant/appellants which was inherited by them. Plaintiff purchased the suit land from Halkhori Singh who was the owner of the suit property and was paying rent to the State of Bihar. However, in the proceeding of 144 Cr.P.C. which was converted into 145 Cr.P.C. Since possession was wrongly decided in favour of the defendants/appellants, the necessity of filing the suit.
3. Defendants/appellants contested the suit denying all the averments made in the plaint and claiming title in themselves.
4. The main issue that fell for consideration by the trial Court and the Appellate Court was whether suit lands are the raiyati lands of the plaintiffs and they are entitled to recover possession and also whether family of Ramlal and his two brothers Shyam Narain Singh and Sunder Singh were joint. Both the trial Court and the Appellate Court, after considering all the evidence both oral and documentary, recorded finding that the plaintiffs have acquired valid right title and interest in the suit property and they were in possession of the land till initiation of the proceeding under Section 145 Cr.P.C. Accordingly, the suit was decreed.
5. The only substantial question raised by the appellant at the time of hearing of this case under Order 41 Rule 11 C.P.C. was as to whether suit for declaration as occupancy tenant and for possession is barred under Section 139 A of the C.N.T. Act. The order dated 16.2.94 passed by this Court reads as under:
This appeal will be head.
As respondent No. 1 and 2 have appeared through Mr. Manjul Prasad, no notice need be issued to the said respondents.
Call for the lower courts records.
The substantial question of law as urged by Mr. Debi Prasad, involved in the present case is as to whether a suit for declaration as occupancy tenant and for possession is barred under Section 139A of the Chotanagpur Tenance Act? In this regard he referred to the decision of a Division Bench of this Court in the case of Dhuplal Sahu. v. Bhekha Mahto AIR 1926 Patna 363. However, the appellants will be at liberty to raise other points also, if this Court hearing the matter feels satisfied on it.
Let this appeal be placed for hearing on 11th April, 1994.
Page 2183
6. Mr. L.K. Lal, learned Counsel for the appellants drawn my attention to Section 139(5) and 139 A of the C.N.T. Act and submitted that suit for declaration of occupancy raiyati interest and for recovery of possession is barred inasmuch as Deputy Commissioner has the exclusive jurisdiction to decide the disputes. Learned Counsel relied upon the decision of the Patna High Court in the Case of Dhuplal Sahu. v. Bhekha Mahto AIR 1926 Patna 363
7. On the other hand, Mr. Manjul Prasad, learned Counsel for the respondents submitted that both the courts have appreciated evidence in detail and found that plaintiffs-respondents purchased the suit land from the rightful owner and got their names mutated and paid rent to the State of Bihar after vesting and to the ex-landlord before vesting. On the question of jurisdiction, learned Counsel relied upon the Full Bench decision of the Patna High Court in the case of Paritosh Maity v. Ghasiram Maity and Anr. .
8. Section 139 of the C.N.T. Act reads as under:
Certain suits and applications cognizable only by the Deputy Commissioner- 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-
(1) all suits for the delivery of leases or counterpart engagements;
(a) all suits and applications for the determination of the rent payable by a tenant for;
(b) all suits and applications not otherwise provided for in this Act for the assessment of rent upon, or for alteration of rent payable by a tenant for;
(c) all suits for arrears of rent on account of- agricultural land, whether subject to the payment of rent or only to the payment of dues recoverable as if they were rent;
3(a) all applications to determine the existence, non-existence nature or extent of;
(b) all applications for determination of the sum payable by any person in respect of;
(c) all applications for assessment of the sum fairly payable by any person, or for alteration of the sum payable by any person, in respect of;
(d) all applications for damages in respect of exceeding, or in respect of interference with the enjoyment of;
(e) all suits for arrears of anything payable in respect of-
[any of the following rights (not being rights created by a registered contract), namely, rights of pasturage], rights to take forest produce, rights of fishery or other similar rights;
(4) all suits and applications [under this Act] to eject any tenant of agricultural land or to cancel any lease of agricultural land;
(4-A) all suits for ejectment of a trespasser where the plaintiff claims as alternative relief that the defendant be declared liable to pay for the land in his possession a fair rent;
Page 2184 (5) all suits any applications to recover the occupancy or possession of any land from which a tenant has been unlawfully ejected by the landlord or any person claiming under through the landlord;
(6) subject to the provisions of Sub-section (5) of Section 74-A all suits by or against a village headman for a declaration of title in, possession or ejectment rom a recovery of his office or land comprised in his village-headman's tenancy, whether based or not on an allegation of the existence or non-existence of the relationship of landlord and tenant and whether brought or not by or against the landlord of such land;
(7) all suits by landlords and others in respect of the rent of land, against any agents employed by them in the management of land or the collection of rents, or the sureties of such agents for money received or accounts kept by such agents in the course of such employment, or for papers in their possession; and (8) all suits and applications in respect of which jurisdiction is conferred by this Act on the Deputy Commissioner:
[Provided that the Deputy Commissioner may subject to such rules as may be made in this behalf under Section 264 transfer any particular suit or application or any class of suits or application cognizable by him under this Section to a competent Civil Court for trial]
9. From bare perusal of the aforesaid provisions, particularly Clause 5 it is clear that in a suit to recover possession of land from which tenant has been unlawfully ejected by the landlord is cognizable by Deputy Commissioner. This Clause does not say that even a dispute raised by the tenant with regard to his title over the land by virtue of purchase from the rightful raiyat is also to be adjudicated by Deputy Commissioner. If that is so, Section 139 A, in my opinion shall have no application.
10. Be that as it may, a Full Bench of Patna High Court in Paritosh Maity case (Supra) has settled the issue by holding that Civil Court jurisdiction cannot be ousted merely because of the provision made under Section 139A and 258 of the Act.
11. Besides the above, it appears from the pleadings of the defendants that question of jurisdiction was never raised either before the trial Court or before the Appellate Court. It is well settled that question of jurisdiction must be taken at the earliest possible opportunity. In my opinion, therefore, at the stage of second appeal, appellant cannot be allowed to raise an issue that the Civil Court, has no jurisdiction to decide dispute between the parties.
12. In the aforesaid premises, I do not find any merit in this appeal, which is, accordingly, dismissed.