CHAIRMAN, DISTRICT BOARD Vs. JAGATPAT SINGH DUGAR, PRINCIPAL

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit under Section 106, Ben. Ten. Act. The plots of land in dispute are the O. S. plots Nos. 9 and 11 of Mouza Badarganja, P. S. Badarganja, District Rangpur. These plots were recorded in the khas khatian of she defendant as appertaining to his putni. The plaintiff's case is that these are borrow pits of the District Board Road No. 3 and have been wrongly recorded in the defendant's khatian. They should be recorded in the plaintiff's khatian No. 647. The defendant's ease is that the disputed plots recorded in his khas khatian really appertain to his putni and that he has been in possession of the same all along. Since the O. S. record, these plots have been settled with one Dwarika Prosad Saha, (pro forma de-fondant 3) and this Dwarika is now in possession. The character of the disputed land is not such as to admit of continuous occupation by either party. Both the parties claim title to it and both parties assert their respective possession of the same by reason of some occasional acts of enjoyments. In these circumstances the learned Assistant Settlement Officer took into consideration the evidence of title adduced by the parties and having come to the conclusion that the title was with the plaintiff found possession with him and granted him the relief claimed. On appeal by the defendant the Court of appeal below refused to go into the question of title, being of opinion that the same could not be gone into in a proceeding under Section 106, Ben. Ten. Act, and dismissed the plaintiff's suit, finding the possession with the defendant and leaving the question of title open.

(2.) In the present appeal it is contended on behalf of the appellant that in view of the character of the property in dispute and in view of the admitted fact that the property admits of only sporadic acts of enjoyment and that both parties asserted such acts of enjoyment the Court of appeal below was wrong in refusing to determine the question of title. Mr. Gupta contends that in the circumstances of the present case the determination of the question of possession itself depends upon the decision on the other question, The finding that the acts of enjoyment exercised by the defendant constituted his possession in preference to the acts of enjoyment exercised by the plaintiff is not a finding of fact but is an inference of law drawn from the facts sound and as such can be assailed in this second appeal. The learned advocate appearing for the respondent contended that the scope of a suit under Section 106, Ben. Ten. Act, is very much limited and that in such a suit no question of title can be gone into. He further contended that the finding as to the possession amounted to the rejection by the Court of appeal below of the plaintiff's case of his exercise of some acts of enjoyment and consequently should not be interfered with in second appeal. It cannot be denied that the scope of a suit under section 106, Ben. Ten. Act, is very much restricted. Section 106, Ben. Ten. Act, lays down that a suit may be instituted before a revenue officer....for the decision of any dispute regarding any entry which a revenue officer has made in. or any omission which the said officer has made from the record... The revenue officer shall hear and decide the dispute, whether such dispute be between landlord and tenant, or between landlords of the same or of neighbouring estates, or between tenant and tenant, or as to whether the relation-ship of landlord and tenant exist or as to whether land held rent-free is properly so held, or as to any other matter.

(3.) The suit contemplated by Section 106, Ban. Ten. Act, must be in respect of a dispute regarding any entry made or regarding any omission from the record. When an entry has as a matter of fact been made in the record of rights and that entry is disputed a suit regarding that will be maintainable irrespective of the question whether or not such an entry comes within any of the clauses of section 102, Ben. Ten. Act. When, however, the suit is regarding any omission, it necessarily follows that the omission complained of must be of something required to be recorded by S.102, Ben. Tan. Act. It cannot be said that anything has been omitted unless and until it is established that the same was required by law to be recorded. The revenue officer is thus constituted a tribunal of limited authority and the tribunal being of statutory origin, the conditions and qualifications annexed to the provisions conferring jurisdiction upon it must be strictly complied with. The suit contemplated by Section 106 is for decision of a dispute regarding any entry made in or omission from the record. It is obvious that a revenue officer is not invested with power to entertain a suit for recovery of possession : Nilmony Kumar V/s. Kedarnath Ghosh ( 13) 17 CWN 750; Chandi Charan V/s. Lal Bewa and Brojomohan V/s. Darsan <JGN>Pal</JGN> . The suit under this section is in the nature of a declaratory one and the whole object is only to secure a prompt correction of an erroneous record: Kalisundari V/s. Girija Sankar ( 11) 15 CWN 974. But whatever investigation may be required in order to give effect to the relief [regarding any entry in or omission from the record shall be within the scope of a suit under this section. If investigation of title necessary for such a purpose it will certainly be within the competence of the (revenue officer exercising jurisdiction under this section to do that: see Umedullah V/s. Ram Chandra ( 10) 14 CWN 812. that in a suit under this section the revenue officer has primarily to go on the question of actual possession. But there may be cases where the determination of the question of possession itself may be dependent on the question of title and in my judgment the present case is one of that type.