Under-raiyats can acquire a permanent tenancy right in the land by adverse possession, and tacking of possession periods is permissible if the defendants derived their interest from each other. A notice to quit or demand of possession is necessary for instituting a suit for ejectment, even in the case of tenancy at will.

Kanhaiya Singh, J.

1. This is an appeal by the plaintiffs from the decree dated 5-3-1949, of Mr. B. S. Tripathi, Additional Subordinate Judge, affirming the decree dated 24-7-1948, of Mr. M. M. Sahay Munsif. The suit was brought by the plaintiffs as raiyats for eviction of the defendants from 1,66 acres of land comprised in khata No, 12 in village Idalhatu substantially on the ground that the defendants were under-raiyats and had refused to vacate the land and give the plaintiffs khas possession even on service of notice to quit.

The defendants resisted the suit on the ground that they had acquired permanent occupancy right in the suit land by adverse possession. Their additional plea was that the suit was incompetent as they had not been given any notice to quit the land.

2. The learned Munsif held that the defendants had not acquired any occupancy. right in the suit land. He further held that the question of acquisition of any tenancy right in the land by adverse possession did not arise as the defendants in the capacity of under-tenants could not prescribe against the landlord. He further found that there was no demand for possession, and after so holding he dismissed the suit.

3. On appeal, the learned Subordinate Judge held that the defendants had acquired a permanent tenancy right in the suit land by adverse possession and set aside the finding of the learned Munsif to that extent. He, however, held, in agreement with the learned Munsif, that there was no demand for possession of the land by the plaintiffs and, therefore, the suit was not maintainable. He accordingly affirmed the decree passed by the learned Munsif and dismissed the appeal.

4. Before I deal with the questions raised in this appeal. I would like to dispose of one short point taken by the respondents. One of the contentions of the respondents was that by reason of Sec.139, Chota Nagpur Tenancy Act the jurisdiction of the Civil Court was barred. This section provides, inter alia, that all suits and applications under this Act to eject any tenant of agricultural land or to cancel any lease of agricultural land shall be cognizable by the Deputy Commissioner & shall be instituted and tried or heard under the provisions of this Act, and shall not be cognizable in any other Court, except as otherwise provided in this Act. This section has no application to the present case for two reasons, first, as I shall show below, the defendants are under-raiyats of the. disputed land.

There is no provision in the Chota Nagpur Tenancy Act for eviction of an under-raiyat. Sec.139 postulates procedure for institution and trial of the cases. If the Chota Nagpur Tenancy Act does not contain any provision as to how a suit will be instituted and disposed of in order to eject an under-raiyat from his land, Sec.139 of the Act does not come into play at all. The jurisdiction of the Civil Court is ousted only when some special provision for a particular kind of suit has been made in the Chota Nagpur Tenancy Act. If there is no such provision, the aggrieved party cannot be said to be without remedy and, therefore, the remedy must be sought in the civil Court. Sec.139 emphasises that suits and applications which are not entertainable in the Civil Courts must be suits and applications under the Act, that is, under the Chota Nagpur Tenancy Act. A suit to evict an under-raiyat cannot be said to be a suit under the Chota Nagpur Tenancy Act for the simple reason that this Act does not contemplate the institution of such a suit. Necessarily, therefore, the Civil Court must have jurisdiction over such a suit.

Secondly, this was not a pure suit by a landlord for ejectment of a tenant, in this suit, the plaintiff claimed declaration of title and possession, and a suit of this nature does not fall under the Chota Nagpur Tenancy Act. A Full Bench of the Patna High Court held in the case of Pokhan Dusadh V/s. Mt. Manoa, AIR 1937 Pat 117 (A) that Sec.139 (5), Chota Nagpur Tenancy Act bars t