A transfer of a holding by a raiyat for a period exceeding five years is void ab initio under Section 46 of the Chota Nagpur Tenancy Act. The possession of the transferee cannot be regarded as adverse from the date of transfer.

Agarwala, J.

1. This is an appeal by the plaintiffs against the decision of the Court below reversing the decision of the Court of first instance. It arises out of a suit for the recovery of plot No. 1018 of Khata No. 10 in village Lakshmipur. The suit comes from Dhanbad in the district of Manbhum where the tenancy law in force is the Chota Nagpur Tenancy Act. The land in suit belonged to one Gorachand, father of plaintiff No. 1 and grandfather of plaintiff No. 2, and was recorded in his name. The plaintiffs alleged that in May 1944, while Gorachand was ill, the defendants took possession of the plot and constructed a house on it. As framed, therefore, the suit was one to eject a trespasser who was alleged to have trespassed the plaintiffs land. On the plaint the suit was governed by Article 142 of the Limitation Act and must have been dismissed as the plaintiffs failed to prove possession within twelve years of its institution. In fact, it has been dismissed by the appellate Court, and the plaintiffs have appealed against that decision.

2. The case has become rather complicated, however, because the defendants were not satisfied with, the plaintiffs case that they had been in possession within twelve years of the institution of suit. They pleaded that they were under-raiyats of the plot alleging that Gorachand had settled the land with defendant No. 1 and with Chunaram father of defendants 2 and 4 in consideration of a selami of Rs. 18 in 1335 B. S., that is to say, about 1928. The Court of first instance rejected this defence holding that the defendants had not proved the alleged settlement or that they had been in possession under it. The first Court held that the defendants were mere tenants-at-will and that the plaintiffs were entitled to eject without notice.

3. In appeal, the appellate Court had taken the view that since the defendants claimed to have entered into possession under a settlement from Gorachand, they and set up a plea of adverse possession, and that, although under the law prevailing in Chota Nagpur, it was beyond the power of Gorachand to make a settlement of the nature alleged by the defendants, the latter must be regarded as having obtained possession in 1928 and that possession must be regarded as adverse possession to the plaintiffs from its beginning, and, therefore, that the, defendants had acquired a title to the land by adverse possession. Against that decision the plaintiffs have now appealed.

4. Before dealing with the main point in the case, 1 propose to consider the contention of Mr. Mukherji for the respondents that this suit is barred by Sec.139A of the Chota Nagpur Tenancy Act. That section prohibits any Court from entertaining any suit concerning any matter in respect of which an application is recognizable by the Deputy Commissioner under Sec.139. Sec.139 makes the following applications cognisable by the Deputy Commissioner and not in any other Court, namely, (a) ail applications under the Act to eject a tenant of agricultural land or to cancel any lease of agricultural land, and (b) all applications in respect of which jurisdiction is conferred by the Act on the Deputy Commissioner. The first of these two applications to which I have referred falls within Sub-section (4) of Section 139. But the present is neither an application to eject a tenant or to cancel a lease, the plaintiffs allegation being that the defendants are not tenants, but trespassers. The second class of applications is governed by Sub-section (8) of Sec.139, and it is necessary to consider whether in the present suit an application would have laid to the Deputy Commissioner under the Act for the purpose of ejecting the defendants. Mr. Mukherji refers to Sub-section (5) of Section 46 of the Act as it stood before it was amended, after the institution of the present suit, in 1947. Sub-section (5) provides that if a raiyat transfers his holding or any portion thereof in contravention of the provisions of Sec. 46,