Secretary of State vs Natabar Mangraj

Kulwant Sahay, J.—The first question for determination is whether the suit was cognizable in the civil Court.

The suit really consists of two arts: one against the Defendant No. 1 and the other against the Defendant No. 2. In so far as the claim against the Defendant No. 1 is concerned it is based on the transfer of a non-transferable tenure without the consent of the landlord. Such a claim is clearly cognizable in a civil Court. A suit of this nature is not a suit contemplated or provided for in the Orissa Tenancy Act, and Section 193 of the Act does not apply to such a suit. I am, therefore, of opinion that the claim of the plaintiff as against the Defendant No. 1 was rightly brought in civil Court and that the Munsif had jurisdiction to entertain it.

As regards the claim against the Defendant No. 2, the question as to whether the suit was cognizable in the civil Court would depend upon the naiure of the title under which the Defendant No. 2 held the lands in dispute. It appears from the Settlement memorandum of Mr. Mills of the year 1844 that there was a grant in perpetuity to the ancestor of the, Defendant No. 2 at half rent to be held during goad behaviour. The Settlement khatians of 1905 and 1920 described the status of the Defendant No. 2 as that of a tenure-holder. The Settlement khewat of 1920 described the tenures as non-transferable interests resumable for misbehaviour. Having regard to the findings arrived at by the Courts below, it seems clear that the status of the Defendant No. 2 is that of-a tenure-holder. If that is so, then the relation between the parties must be governed by the provisions of the Orissa Tenancy Act, and the suit as against the Defendant No. 2 was cognizable by the Collector and not in the civil Court. The Subordinate Judge was therefore right in holding that the suit against the Defendant No. 2 was not cognizable in the civil Court. Having come to this finding the proper procedure to adopt in the case| was to return the plaint for presentation; to the proper Court. Instead of doing that he dismissed the suit. In this he was clearly wrong. The provisions of Order 7, Rule 10, of the CPC are clear. The plaint therefore must be returned to the plaintiff under Order 7, Rule 10, Civil Procedure Code. In this view of the case it is not necessary to express any opinion on the other issues raised in the case in so far as the Defendant No. 2 is concerned.

As regards the claim against the Defendant No. 1, I am of opinion that the transfers in question, although in the garb of permanent leases, are really out and out sales. The interest reserved to the Defendant No. 2 is the receipt of a nominal rent which appears to be the proportionate amount of rent which Defendant No. 2 himself had to pay in respect of the tenures.

I am of opinion that the Munsif was right in his view that the transfers to the Defendant No. 1 were transfers which would entitle the plaintiff to eject the Defendant No. 1. The learned Subordinate Judge, however, has found that the tenures were transferable. In coming to this finding the learned Subordinate Judge merely referred to the terms of the grant as evidenced by the rubakari of 1844 (Exhibit B). This rubakari makes no mention of the fact as to whether the tenures were or were not transferable. The learned Munsif, however, considered the question in his decision on Issue No. 3 and he relied on the Settlement Reports of 1917-1920. He found that the transferees of tenures, like the one under consideration, were treated by the plaintiff has new tenants and only on their agreeing to give up their right as tenure-(holders and accepting the status of a raiyat assessed with double the rent the transferrer used to pay, that is to say, there was invariably imposition of a new status and new terms. The finding of the learned Munsif was, therefore, based on, custom.

The learned Subordinate Judge has not considered this aspect of the case. No doubt, u/s 12 of the Orissa Tenancy Act every permanent tenure is capable of being transferred and bequeathed, subject to the provisions of the Act, in the same manner and to the same extent as other immovable property; but u/s 13 the right of the landlord to resume a resumable tenure is not affected, nor do Sections 11 and 12 of the Act validate the transfer of a tenure or portion thereof which by the terms upon which they are held or by local custom are not transferable. The learned Munsif held in effect that by local custom the, tenures were not transferable. If that is so, then the plaintiff was entitled to eject the Defendant No. 1. The learned Subordinate Judge however, has not considered the evidence of custom of non-transferability of the tenures. The question must therefore be considered by the learned Subordinate Judge.

The result is that in so far as the Defendant No. 2 is concerned the plaint must be returned for presentation to the proper Court. As regards the claim of the plaintiff against the Defendant No. 1, it must be held that the transfers in question are transfers of a nature which would entitle the plaintiff to eject the Defendant No. 1, provided the tenures are non-transferable, and the learned Subordinate Judge must decide the question as regards the non-transferability of the tenures on a consideration of the evidence of custom produced in the case. Appeal No. 25 of 1925 is allowed and the decree of the Subordinate Judge is set aside and the case remanded to him for decision on the question of custom of non-transferability and disposal according to law. Costs will abide the result.

Appeal No. 26 of 1925 is allowed in part, the decree of the Subordinate Judge is set aside and it is ordered that the plaint be returned under Order 7, Rule 10, Civil Procedure Code. As there is only one plaint against both the defendants, a copy thereof will be retained on the record of the suit and the original will be returned with the necessary endorsement. There will be no order for costs in Appeal No. 26.

Macpherson, J.

I agree.