Ruprani Debi vs Durga Mahto

Fazl Ali, C.J.—The question to be decided in this appeal is whether a suit to recover rent for homestead land held by a raiyat can be entertained by a civil Court or it should be instituted in the Court of the Deputy Commissioner. The Munsif held that such a suit could be entertained by the civil Court, but the lower appellate Court has held otherwise and dismissed the present suit:

Hence this appeal by the landlord. Section 139(2)(c) provides that

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

shall be cognizable by the Deputy Commissioner and shall not be cognizable in any other Court. This provision has no application to the present case, because here the land in regard to which the suit has been brought is not agricultural land but is homestead land. Alternatively it was contended by the learned Advocate for the respondent that this suit will be governed by Section 189(3)(c) which provides that

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

shall, be cognizable by the Deputy Commissioner.

In my opinion, however, this provision also has no application to the present case. The provision in question applies only to rights which are more or less in the nature of rights of easement, but for which something is payable to the owner of the land on which the rights in question are exercised. The learned Subordinate Judge in holding that the suit was not cognizable by a civil Court, but was cognizable only by the Deputy Commissioner, seems to have been greatly influenced by the provisions of Section 78 which provides as follows:

When a raiyat holds his homestead otherwise than as part of his holding as a raiyat, the incidents of his tenancy of the homestead shall be regulated by local custom or usage, and, subject to local custom or usage, by the provisions of this Act applicable to land held by a raiyat.

In the present case we are not enquiring as to what are the incidents of the homestead land in regard to which rent is claimed. If such a question arose, then this section would be relevant; but here the only question is what is the proper forum for a suit to recover rent in respect of homestead land. The only section which bars the jurisdiction of the civil Court to try such a suit is Section 139, but as I have already pointed out, none of the two provisions of that section upon which reliance is placed on behalf of the defendant-respondent is applicable to the present case. In my opinion the learned Munsif was correct in holding that the suit was cognizable by a civil Court and his view is supported by the decision of the Calcutta High Court in Midnapore Zemindari Co. Ltd. v. Muktakeshi Dasi (1913) 40 Cal. 402. The judgment of the learned Subordinate Judge which is based on the conclusion that this suit is not cognizable by a civil Court must, therefore, be vacated and he should be directed to try the suit on the merits.

I would, therefore, allow this appeal, set aside the decision of the learned Subordinate Judge and direct him to hear this appeal from the judgment of the Munsif on the merits and dispose of that appeal according to law. Costs will abide the result.

Chatterji J.

I agree.