1. This rule raises a point of jurisdiction. The petitioner has instituted the suit in order to recover possession of a four annas share in a certain tea garden together with mesne profits. The point in dispute is whether the suit should be tried in the Court of the Subordinate Judge or in the Court of the Deputy Collector in view of the provisions of Act 10 of 1859. The Subordinate Judge returned the plaint for presentation in the proper Court. An appeal by the petitioner was dismissed by the District Judge. Both the Courts below have held that the defendants are raiyats. The foundation of the plaintiff's claim is that the lease of the defendants has been terminated. The Subordinate Judge held that he was entitled to go behind the plaint and see what the claim really was. Having taken this view he held that the plaintiff's case that the lease has been terminated fails and that the suit is really one for rent and not for mesne profits. I must confess that I should find it difficult to say that a suit for ejectment is really a suit for rent. This appears to me to be quite meaningless. The plain fact of the matter is that, if the plaintiff fails to prove that the lease has terminated, his suit will fail on the merits.
2. It is a matter of common experience that plaints are often inartistically drafted. Courts are always careful to see that in construing them an attempt should be made to ascertain what the plaintiff's case really is and that he should not be defeated merely because he has used unhappy phraseology. But that is quite a different thing from saying that the Court must decide whether the claim is good or bad before determining whether there is jurisdiction to try the case. I have not been shown any authority which goes to that length. The case in Issur Chunder v. Assan Sirdari ('68) 10 W. R. 134, to which the learned District Judge refers might however appear to give some support to the view taken by the learned Subordinate Judge. It is impossible to ascertain the facts from the report. Indeed the decision appears to have been made solely upon the averments in the plaint and no disputed question of fact appears to have been investigated. It is not clear upon what the plaintiff's claim to ejectment was based and it may well be that the ease came within the terms of Section 23(5). On the other hand, Dr. Pal put his case so high as to maintain that in determining the question of jurisdiction the Court cannot travel beyond the averments in the plaint; for example, he said that, if in the present case the plaint avers that the defendants are tenure-holders, no question of jurisdiction could arise; if it is proved at the trial that the defendants are raiyats, the suit Will fail on the merits.
3. By Section 23 of the Act the jurisdiction of the civil Courts to try certain suits is excluded. Certain suits to eject raiyats are included in this category. The wording of this sub-section is 'all suits to eject any raiyat' and not 'all suits to eject any person whom the plaintiff admits to be a raiyat.' On the other hand, Dr. Pal's contention might lead to strange results. To take his example let us assume that both a tenure-holder and a raiyat may be ejected on one common ground. If the Court found that a defendant, wrongly described as a tenure-holder, was really a raiyat, but that he was liable to be ejected, a good case would be dismissed on the merits for want of jurisdiction. In my judgment the true view has been stated by the learned District Judge when he said that the Court must determine all facts upon which the jurisdiction depends. The judgment delivered in Hurree Persad Malee v. Koonjo Behary Shaha (1862-64) 1862-64 W. R. (Special) 29 (P. B.), makes this point quite clear. The learned District Judge, however, omitted to notice that the Subordinate Judge went much farther than that. Although it might be necessary for him to determine whether the defendants are raiyats, it is quite unnecessary to go into the merits of the plaintiff's claim for ejectment.
4. Dr. Basak attempted to support the order of the Subordinate Judge on the ground that every suit to eject a raiyat comes within the terms of Section 23(5). It does not appear that this point was taken in either of the Courts below. It depends upon whether the words; 'all suits to eject any raiyat' are unqualified j by anything that follows. I am not prepared to accept this interpretation. Although there does not appear to be any authority directly bearing upon the meaning of Section 23(5), it is quite clear from the decision of the Pull Bench in Muddun Mohan Roy v. Gourmonee Goopto (1862-64) 1862-64 W.R. (Special) 126: Beng. L.R. Sup. Vol. 31 (F. B.), that some such ejectment suits can be brought in the civil Court. In my judgment the suit to eject a raiyat on the termination of his lease is not within the terms of Section 23(5). The rule must accordingly be made absolute, the order of the Subordinate Judge is set aside and he is directed to hear and determine the suit in accordance with law. The opposite party will pay the costs of the petitioner in this Court and in the lower appellate Court--hearing fee in this Court three gold mohurs.