Patna High Court
Narain Singh vs Baba Alias Gabhrail Uraon And Anr. And ... on 5 February, 1918
Equivalent citations: 44IND. CAS.262, AIR 1918 PATNA 633
JUDGMENT Dawson Miller, C.J.
1. In this case defendant No. 1 appeals from a decision of the Subordinate Judge of Ranchi and he contends that the decision ought to be set aside on two grounds. The first is that the Court had no jurisdiction to try the case, although neither before the Munsif nor before the lower Court of Appeal was any such objection taken. The second ground upon which he asks us to allow this appeal is that the learned Munsif who tried the case originally went himself and inspected the locality concerning which the dispute took place and although it is not contended that he had no power to go and make an inspection of the locality, it is contended that in the course of that inspection, the Munsif took evidence by asking questions from an old man called Chilgu and based his decision entirely or at all events largely upon the evidence so obtained. The facts of the case quite shortly appear to be these:
The plaintiff many years ago, about the year 1901 I think it is, settled upon certain waste lands described in the survey as plot No 613 in Mauza Saheda with the intention of converting them into his korkar. No objection was apparently taken by the malik at that time nor indeed for many years afterwards and, therefore, he contends that no objection having been taken for two years he is entitled to occupancy rights in respect of that land, he having a few years ago converted it into cultivable land. The original malik appears to have died and was succeeded by defendant No. 2. In the year 1908 a Survey and Settlement took place in which the lands in question were entered in the Record of Rights as the ghair mazrooah khas of the malik and no objection was apparently taken to that by the plaintiff. The reason given in the judgment of the Court below for the plaintiff taking no objection is that at that time the land had not been entirely brought under cultivation and the plaintiff did not think that it was necessary that he should assert his rights at that time or that he was entitled to get his name entered in the survey record as having any right or title to the land. Then according to the plaintiff he grew crops on the land and shortly before this suit was instituted in 1915. Defendant No. 1, who claimed to have taken settlement from the present malik defendant No. 2, appears to have destroyed the crops and disputed the plaintiff's right or title to any occupancy at all. The Munsif at the trial having heard evidence upon the application of the plaintiff made a personal inspection of the land in question with a view to ascertaining how far the plaintiff's evidence was accurate, to the effect that he had erected bunds on the land and had carried out other works with a view to reducing the land to a state fit for cultivation. Daring the course of that inspection according to the Munsif's report of what took place, it appears that both parties asked the Munsif to question this old man Chilgu who was either the headman of the village or one of the oldest inhabitants, and from the evidence given by Chilgu the learned Munsif was confirmed in the impression, which he seems from his judgment to have arrived at apart from this evidence, that the plaintiff had erected a bund or embankment whereby the land in this plot No. 613 was materially assisted in being redeemed to a state of cultivation. Now where the parties themselves request either that certain evidence, which is not in itself admissible as evidence if objections are taken, should be considered by the Court or where they request that the Judge should himself put questions to witnesses, I cannot see that it lies in the mouth of either of the parties, who ask that that course should be taken, afterwards to question it on appeal if it should turn out that the result of the evidence is against them, and therefore in my opinion this part of the appeal must fail.
2. The next objection which is taken is that this being a suit to recover possession the Court, that is to say, the Court of the Munsif in which the suit was originally brought, had no jurisdiction to try it because under the Chota Nagpur Tenancy Act of 1908 which applies to suits with respect to the land in question it is provided in Section 71 that if any tenant is ejected from his tenancy or from any portion thereof in contravention of Section 68, he may within a period of one year from the date of such ejectment present to the Deputy Commissioner an application praying to be replaced in possession of such tenancy or portion; and the Deputy Commissioner may, if he thinks fit, after making a summary enquiry replace him in possession in the manner described in Section 68. That section says that no tenant shall be ejected from his tenancy or any portion thereof except in execution of a decree, or in execution of an order of the Deputy Commissioner passed under this Act. Then Section 139 of the same Act provides as follows: "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," and then follow eight different classes of suits or applications which it is said shall be tried only by the Deputy Commissioner. No. 5 is "All 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 or through the landlord." It is said that Sub-section 5 applies to the present case and therefore the suit is barred, because it could only be tried under that sub-section by the Deputy Commissioner. Reliance was placed upon the earlier legislation, both the Act of 1859, Section 23 (6) and the Chota Nagpur Procedure Act of 1879, Section 37, Clause 6, in which suits of this nature were only cognizable by the Deputy Commissioner and it is said that there is no difference between the word suits and the word applications used in Section 139 of the present Act and that it was intended merely to re-enact the law as it previously existed. In construing a Statute I think one is certainly entitled to look and see the course of legislation up to that time and if the words of the previous Statute are re-enacted, it; may be assume that it was intended that the law should be continued as it previously existed. But in the present case Section 139 of the Act of 1908 seems to my mind clearly to draw a distinction between suits and applications and the reasons seem to me to be clear. The word application in the section merely refers to certain summary procedure, at all events in Sub-section 5 which provides that in case where tenants are ejected they may at once and without the delay and expense of bringing a suit be--if they make out their case--put in possession of the disputed property. But having regard to the fact that the word suits is also used in many of the subsections in the same section, I cannot believe that it was intended in the present Act that not only applications such as those I have described should be confined to the Deputy Commissioner's Court alone but also suits which claimed not only to be put in possession but also included claims for declarations and matters of that sort. In the present case it is noticeable that not only did the plaintiff seek the relief of being put in possession of the disputed land, but he sought a decree adjudicating upon his korkar rights and claimed also any other reliefs to which he was entitled in the opinion of the Court. In any case I do not think that Section 139, Sub-section 5, of the Act in question was intended to bar a suit being brought in some other Court besides that of the Deputy Commissioner. The matter has already been the subject of judicial decision in a case which came before the High Court of Calcutta in 1910 and the judgment of Woodroffe and Carnduff, JJ., appears in Khetra Nath v. Paru Beuri 9 Ind. Cas. 478 : 15 C.W.N. 387 : 13 C.L.J. 250. Both these learned Judges were agreed that the word application in the section under consideration did not include and was not meant to include suits such as that which has been brought in the present case. I think on both grounds this appeal must fail and must be dismissed with costs. The costs, which the respondents have to pay in respect of their unsuccessful application for security, will be set off against the costs they recover in the appeal. We assess the appellant's costs of that application at one gold mohur.
Mullick, J.
3. I agree.