HADU MAHARANA Vs. RAMDULAL GHOSH

JUDGEMENT

(1.) This is an appeal by the defendant against a decision of the District Judge of Cuttack decreeing the plaintiff's suit for rent of the years 1341 to 1844 at the rate claimed by the plaintiff, that is to say, Rupees 12-12-0 per annum, whereas the defendant contended that the rate of rent stipulated for between the parties was Rs. 4-4-0 which had subsequently been raised by consent to Rs. 5-8-0 and could not be further enhanced. The defendant's contention was accepted by the Munsif, but the District Judge gave the plaintiff a full decree as claimed. One contention advanced in second appeal is that the civil Court had no jurisdiction to entertain the suit for rent; it should have been brought before a revenue Court, being a suit under the provisions of the Orissa Tenancy Act. The position of the parties must therefore be stated.

(2.) The plaintiff is a chandnadar and the defendant an under-tenant holding under him. The local expression for this tenancy is darpattadar. It is not disputed that the land is homestead and is neither a part of, nor held in connexion with an agricultural tenancy of any kind. That being so, I shall follow the decision of Ross J. Radhamohan Jiu V/s. Kasinath Das (34) 1 Cut. L.T. 28 where he says: Even if it (the suit land) falls within the area to which the Orissa Tenancy Act applies, it will not be governed by that Act unless it is agricultural land. And again: If the land is not agricultural land, then Section 236 would hardly be sufficient to oust the jurisdiction of the civil Court, because it would have to be shown that the homestead was held by a raiyat and also that it was held otherwise than as part of his holding as a raiyat. But if this is not agricultural land, then there is nothing to show that; the defendant is a raiyat at all and it is not suggested that he has any other holding.

(3.) The next point is whether the decree of the Munsif should be restored. The defendant was inducted on the land under an agreement to lease which was expressed in two registered documents dated 1931--a patta on the one hand and a kabuliat on the other. The patta was executed by the landlord and not by the tenant and the kabuliat by the tenant and not by the landlord. Before these documents were executed an amendment to Section 107, T.P. Act, had come into effect introducing a Sub-clause as follows: Where a lease of immovable property is made by a registered instrument, such instrument or where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee.