ABDUL AZIZ Vs. LIBO LOHAR

JUDGEMENT

(1.) This is an appeal from the decision of the Subordinate Judge of Hazaribagh in an action in which the plaintiffs set up their title to certain land over which it was ultimately shown that the defendants had attempted to exercise korkar rights. The first; point which emerged from the case was that the plaintiffs contended on the one hand that the land was in the village of which they were proprietors or part- proprietors, and the defendants on the other hand contended that the land was in another village with which the plaintiffs had no connection; and it would be idle therefore to suggest that no question of title arose: it clearly did.

(2.) But the other defence to the action was that the defendants had exercised korkar rights which prevented the success of the plaintiffs in an action for ejectment. Now what happened appears to have been this. The trial Court decided the question of title in favour of the plaintiffs as regards a part of the land the substance of the decision being that the land had been converted for more than two years, and therefore, the plaintiffs in any event were not entitled to succeed. As regards the remainder the finding was that the conversion had come within two years, and an order for ejectment with respect to that part was made. In the appellate Court the Judge declined to decide the question of title as he said it did not arise.

(3.) He then proceeded to consider the question of the korkar rights and came to the conclusion in substance that, as the defendants had korkar rights over the land in respect of which the trial Court had refused to give an order for ejectment, and as they were in the process of converting the remainder into korkar, the Court had no jurisdiction to eject them presumably by reason of Section 64(3) of the Chota Nagpur Tenancy Act. Section 139 of the Act sets out the jurisdiction of the Deputy Commissioner as regards the matters named therein, Section 64 of the Act makes provisions as regards the exercise by persons of korkar rights. This section provides in the first instance that written consent of the landlord is required unless in certain exceptions. Then Sub-section (2) raises a presumption of consent in certain circumstances. Sub. Section (3) which is of some importance in this action also provides that consent shall be deemed to have been given if no application is made by the landlord to the Deputy Commissioner to eject the person attempting to exercise korkar rights within a period of two years and, as I have already stated, it appears that on that sub-section the learned Judge has come to the conclusion that the civil Court had no jurisdiction.