G.K. Misra, J.
1. Bauribandhu (Plaintiff) and Hadibandhu (defendant 1) are brothers. Defendants Nos. 2 to 4 are the sons of defendant No. 1. Plaintiff's case is that the disputed property belonged to the ex-Intermediary Satyabadi Ota and his brothers and that it was their private land. He is separate from defendant No. 1 and his sons for more than 25 years. Originally, he cultivated the disputed land as bhag tenant under Satyabadi Ota and his brothers. While he was a bhag tenant, the ex-Intermediary conferred occupancy right on him by commuting the produce rent into cash rent and in evidence thereof accepted rent from him on 11-4-46. Plaintiff thus acquired occupancy right with effect from that date. He was in khas cultivation on payment of rent In 1956. the estate of the ex-Intermediary vested in the State Thereafter plaintiff continued in possession on payment of rent to the Anchal Defendants Nos. 2 and 3 were bhag tenants under Satyabadi Ota in respect of other lands There were ill-feelings between the plaintiff and defendants. The latter were acquitted in a criminal case filed by the plaintiff. On 12-9-60. they threatened to dispossess the plaintiff. The suit was filed for declaration of title, confirmation of possession and in the alternative for pecovery of possession.
Defendants admit that they are separate from the plaintiff for about last 20 years, They also claim bhag tenancy under Satyabadi Ota before 1946. On 6-4-1946. defendant No. 1 claims to have taken a yearly lease for cultivation of the suit plots. They claim occupancy right in the disputed land as they are settled raiyats of the village.
2. The learned Munsif held that the plaintiff failed to prove his title and possession, and that the transaction dated 11-4-46 by which plaintiff claimed right of occupancy in the suit land was hit by Section 4(1) (i) of the Orissa Communal, Forest and Private Lands (Prohibition of Alienation) Act, 1948 (Orissa Act I of 1948). On the aforesaid findings, he dismissed the plaintiff's suit. In appeal, the learned Addl. Subordinate Judge held that plaintiff succeeded in proving his title and possession within twelve years of the suit. He accordingly decreed the plaintiff's suit. He. however, expressed no view as to whether the lease in favour of the plaintiff creating occupancy right on 11-4-46 was hit by Act T of 1948. Against the appellate decree, the second appeal has been filed.
On 26-8-66, an application was filed by the appellants Under Section XLR Rule 27 C. P. C. accompanied by a certified copy of the application filed by Hadibandhu before the competent Revenue Officer for recognition of his bhag tenancy right. Appellants prayed that the certified copy might be admitted as piece of additional evidence and on the basis thereof it be held by this Court that the suit is not maintainable. Though the application was served on Mr. Misra appearing for the plaintiff, no counter has been filed. Mr. Misra does not dispute the fact that defendant No. 1 has filed an application before the competent Revenue authority of which the certified copy has been filed.
3. Mr. Mohapatra raised the following contentions:
(a) The lease in favour of the plaintiff creating occupancy right on 11-4-46 is hit by Act I of 1948 and cannot create any title in favour of the plaintiff.
(b) The learned lower appellate court committed a substantial defect in the procedure provided by the Civil Procedure Code, inasmuch as, it did not discuss the relevant materials on record and that this defect affects its decision on merits The appellate judgment is to be set aside Under Section 100(1)(c) C. P. C.
(c) The appellant filed an application on10-3-66 before the competent Revenue Officerunder the Orissa Land Reforms Act, 1960(Orissa Act XVI of 1960) for declaration ofhis bhag-chasi rights over the suit propertieswhich is pending disposal The civil court hasno jurisdiction to further hear the suit of theappeal.
4. The disputed land has been recorded as Nijchas in the Current Settlement Khatian. Section 3(1) of Act I of 1948 lavs down that notwithstanding anything contained in any other law for the time being in force or any express or implied agreement, but subject to the provisions of Sub-section (2). no landlord shall, without the previous sanction of the Collector, sell, mortgage. lease or otherwise assign or alienate or convert into raiyati land any communal, forest or private land or create occupancy rights therein. Under Section 4(1), any such transaction of the nature prohibited by Section 3 which took place on or after the 1st of April, 1946. shall be void and inoperative and shall hot confer or take away or deem to have conferred or taken away any right whatever on or from any party to the transaction; provided that nothing contained in this sub-section shall be deemed to invalidate any such transaction in respect of private land or forest land entered into prior to the 30th day of November 1947, in favour of any person in good faith and for valuable consideration. It is conceded that no sanction of the Collector was taken for creation of the occupancy right in favour of the plaintiff on 11-4-46 Mr. Mohapatra accordingly contends that even if the lease is genuine and for consideration, it creates no title in favour of the plaintiff. This argument is based on the assumption that the disputed land can constitute private land within the meaning of Section 2(b) of this Act whereunder it shall have the same meaning as assigned to that expression in the Orissa Tenancy Act. Whether all lands recorded as Nijchas in the Current Settlement khatian are private lands or not. was fully discussed in (1966) 32 Cut LT 329, Puma Chandra v. Haribandhu. It was held therein that only those lands which are recorded as Nijchas both in the Provincial and Revisional Settlements would alone be regarded as proprietor's private lands In this case, there are no materials to show that the disputed land was recorded as Nijchas of the landlord in the Provincial and Revisional Settlements. The onus was on the defendants to plead and prove such a case. In the absence of any materials, the disputed land cannot be held to be private land and Act I of 1948 cannot be a bar for alienation of such land without the sanction of the Collector. The first contention is untenable and must be rejected.
5. The third contention is that the defendant No. 1 has filed an application on 10-3-66 before the competent Revenue Officer under the Orissa Land Reforms Act for declaration of his bhag-chas rights over the suit property and that as the matter is pending disposal, the civil court has no jurisdiction to go into the same. Mr. Mohapatra places reliance on Sections 16 and 67 of this Act. Both the sections may be quoted.
'16. If any dispute arises as to the identity of the tenants in cultivation of any land such dispute shall after such enquiry as may be prescribed be decided by the Revenue Officer on his own motion or on the application of the landlord or any person claiming to be in such cultivation and the Revenue Officer may pass such order as he may deem necessary.'
'67. Save as otherwise expressly provided in this Act. no civil court shalll have jurisdiction to entertain any suit or proceeding so far as it relates to any matter which any officer or other competent authority is empowered by or under this Act to decide.'
It can hardly be disputed matters coming within the scope of Section 16 would be outside the jurisdiction of the civil court. That necessitates an examination of the scope and ambit of Section 16. If the dispute in the present suit relates to the determination of the question as to whether plaintiff or the defendants were the tenants of the disputed land, clearly it would be cognizable by the revenue court and the jurisdiction of the civil court would be ousted. That necessitates an examination of the meaning of the expression 'tenant',
6. Section 2(31) defines a tenant as follows:
'2(31). 'tenant' means a person who has no rights in the land of another but under the system generallv known as Bhag, Sanja or Kata or such similar expression as under any other system, law. contract, custom or usage, personally cultivates such land on payment of rent in cash or in kind or in both or on condition of delivery to that person-
(a) the estimated value of a portion of the crop raised on the land, or
(b) either a share of the produce of such land, or
(c) a fixed quantity of produce irrespective of the yield from the land; or
(d) produce or its estimated value partly in any of the ways described above and partly in another.'
It would thus be clear that neither the plaintiff nor the defendants come within the ambit of the expression of 'tenant'. Both the parties claim occupancy rights, though they trace the origin of their tenancies as being on bhag possession. An occupancy tenant cannot be said to be a person who has no right in the land of another The dispute between, the parties is not one coming within the scope of Section 16, If the expression 'tenants' in Section 16 would be construed in the light of the definition given in Section 4 of the Orissa Tenancy Act, Mr. Mohapatra's contention would be unassailable. Therein, occupancy raivats constitute a class of tenants The expression 'tenant' in Section 16 must be construed in the light of the definition given in Section 2(31) of the Land Reforms Act. The dispute between the parties each claiming occupancy tenancy is not excluded from the jurisdiction of the civil court Under Section 67 of the Land Reforms Act. The third contention has no force and must be rejected.
7. The learned trial court, after full discussion of the oral and documentary evidence, held that the evidence of possession adduced by the plaintiff was worthless and plaintiff failed to prove his title over the suit land. It was of opinion that the documentary evidence produced on behalf of the defendants was not at all satisfactory but the oral evidence was satisfactory. On the aforesaid findings, it dismissed the plaintiff's suit. The substantial portion of the judgment reversing the finding of trial court may be extracted :
'In this connection, the evidence of D.W. 3 the defendant himself may be seen wherein he has stated that the rent receipts obtained by him are from Satyabadi who has no right to the land This supports the plaintiff's version that it is Balamakunda who has subsequent to the separation was the owner of the land in question and as the plaintiff has secured rent receipts from him and from Anchal. no adverse view need be taken for non-production of other rent receipts Suffice it to say that the defendant having admitted no right of Satyabadi over suit land their paying rent to him has no meaning I may also say that not believing the evidence of some of the P.Ws. as they could not give the name of the Ghak and other minor details while speaking of plaintiff's possession is not fatal.'
I confess my difficultv in following the reasoning given by the learned Addl. Subordinate Judge. It was the dutv of the first appellate court to go through the entire oral and documentary evidence and to state clearly his own view on each item of evidence. The learned Addl Subordinate Judge exercised his jurisdiction with material irregularity in hot referring to each individual piece of evidence. So far as documents are concerned, he should have discussed about their genuineness and reliability. In the circumstances the case should go back After hearing the Advocates for both the parties, the learned lower appellate court would dispose of the case in accordance with law and the observations made above.
8. In the result, the judgment of thelower appellate court is set aside and the caseis remanded to it for disposal in accordancewith law and the observations made above. Thefirst and the third contentions advanced byMr. Mohapatra are concluded by this judgmentand cannot be reopened before the lower appellate court