KABIR RAM Vs. GIRO MAHTO

JUDGEMENT

(1.) This is an appeal form the decision of the Judicial Commissioner of Chota Nagpur arising out of an action in which the plaintiffs claimed possession of a holding treating the defendants to be under-raiyats within the meaning of Section 4, Chota Nagpur Tenancy Act (6 of 1908). I mention the definition in Section 4, although it is one of the contention of Mr. De appearing on behalf of the appellants that the Act of 1908 does not apply to the circumstances of this case.

(2.) There are two substantial points for determination. The first is whether the defendants, as they pleaded, were occupancy raiyats; and, secondly, whether the Civil Court had jurisdiction. The latter question was not raised in the Courts below but it is raised here. A decision of Adami and Das, JJ. reported in Madhab Poddar V/s. Lal Singh Bhumji A.I.R.1926. Pat. 403 is relied upon for contending that the Civil Court had no jurisdiction. A further decision of this Court in Mt. Jageshwar v. Tilakdhari to the same effect is also relied upon. In this latter case the plaintiff sought to eject a non-occupancy raiyat and the learned Chief Justice in the course of his judgment said as follows: The suit as framed was one to eject trespassers, but on the facts found the defendants were not trespassers but non-occupancy raiyats. As no suit to eject non-occupancy raiyats could be tried in the Civil Court the question of the plaintiff's right against them could not be determined in the present suit; and he held accordingly. Now the sections to be considered in this regard are Secs.46 and 139, Chota Nagpur Tenancy Act. I should have mentioned also Section 68 with Rule 139, which by Clause (4) provides: all suits, and applications under this Act to eject any tenant of agricultural land or to cancel any lease of agricultural land and by (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.

(3.) These are two classes of cases which under the Act are excluded from the jurisdiction of the Civil Court. Then we come back to Section 68 of the Act which provides: 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.