Judgment

GAJENDRAGADKAR, J. : This is an appeal by a certificate granted by the High Court of Orissa and it raises a short question about the scope and effect of the provisions of S. 7 (1) of the Orissa Tenants Protection Act, 1948 (Act III of 1948) (hereafter, called the Act.) The appellant Magiti Sasamal sued the respondent Pandab Bissoi and others in the Court of the District Munsiff, Berhampur, for a permanent injunction restraining them from entering the suit lands belonging to the appellant. The appellant s case was that the suit lands belonged to him and were in his personal cultivation for many years. In the year of the suit the appellant had cultivated the said lands as usual, manured and raised paddy crop thereon after spending a large amount in that behalf. According to the appellant the respondents had no manner of right or title to the said lands and had never cultivated them. From the notice given by them to the appellant, however, it appeared that the respondents wanted to enter upon the lands forcibly and to remove the standing crop therefrom. This they desired to do by setting up a false claim that they were the tenants of the lands and as such were entitled to the protection of the Act. The appellant alleged that the respondents were local rowdies and were known for their highhanded action in the neighbourhood. On these allegations the appellant claimed a permanent injunction against the "respondents."

2. The respondents admitted the title of the appellant to the lands in suit but pleaded that they were the tenants in respect of separate portions of the said lands. Their version was that they had cultivated their holdings and raised the paddy crop thereon in the year in question. According to them they had been in cultivating possession of their respective holdings as tenants long before September 1, 1947, and so they were entitled to remain in possession as such tenants under the Act. It was also alleged by the respondents that they had filed petitions under the Act before the Sub-Collector, Berhampur, claiming appropriate relief against the appellant. They urged that they were ever ready and willing to pay the Rajabhag as provided by the Act and they contended that the suit was not maintainable in a civil court.

3. On these pleadings the learned trial judge framed appropriate issues. Three issues of law had been framed by him on the pleas raised by the respondents. These issues were, however, not pressed at the hearing. One of them, namely issue 5, refers to the jurisdiction of the Court to try the suit in view of the provisions of the Act. Thus, it is clear that the issue of jurisdiction was not pressed by the respondents at the trial. On the merits the learned trial judge considered the evidence and held that though the appellant was the owner of the property the respondents had proved that they were the tenants in possession of their respective holdings and that their possession was long before September 1, 1947. On these findings the learned judge came to the conclusion that the appellant was not entitled to claim an injunction against the respondents and so he dismissed his suit.

4. The matter was then taken by the appellant before the District Judge, Ganjam, Nayagarh. The learned District Judge considered the evidence led by the parties and reversed the conclusions of the trial court. He held that the onus was on the respondents to prove their possession of their respective holdings as tenants on or before the specified date, and according to him they had failed to discharge that onus. The question of jurisdiction was not raised before the appellate court by the respondents. Having held against the respondents on the merits the learned District Judge allowed the appeal, set aside the decree passed by the trial court and directed that an injunction should be issued against the respondents as claimed by the appellant.

5. The respondents then moved the High Court by second appeal; and the main point which the