JUDGMENT
1. This is an appeal on behalf of the plaintiffs in a suit for bastee (homestead) rent. The defendant resisted the claim on the ground that as crops were cultivated on a part of the bastee and the ud bastee adjoining thereto, the suit was triable exclusively by the Revenue Court under Section 139, Sub-section (3), Clause (a), of the Chota Nagpur Tenancy Act, 1903. The Court of first instance overruled this objection and decreed the suit on the merits. Upon appeal, the District Judge has reversed that decision on the ground that the suit is not maintainable in the Civil Court. In our opinion, this view cannot be sustained. Section 139, Clause 3, provides that all suits for arrears of rent due on account of agricultural land, whether subject to the payment of rent or only to the payment of dues which are recoverable as if they were rent, shall be cognizable by the Deputy Commissioner and shall be instituted and tried under the provisions of the Act, and shall not be cognizable in any other Court. The question, therefore, arises whether this is a suit for arrears of rent doe on account of agricultural lands. Upon the pleadings, it is manifest that the rent is claimed in respect of bastee or homestead land. The circumstance that crops have been grown on a part of the land does not alter its character. This was pointed out in the case of Ramdhan Khan v. Haradhan Paramanick 12 W.R. 404 : 8 B.L.R. 107 note, where Mr. Justice Markby relied upon the observation of Mr. Justice Phear in the case of Kalee Kishen Biswas v. Jankee 8 W.R. 250 that to determine whether a case was governed by the provisions of Act X of 1859, what had to be considered was whether the main object was cultivation or habitation. In the case before us, the land, in respect of which rent is claimed, is bastee land, and, consequently, the suit is prima facie maintainable in the Civil Court.
2. The District Judge, however, has held that the suit is not so maintainable, because the bastee land forms part of a ghalwali property held by the defendant. This finding is open to criticism on the ground that it is based on evidence not adduced in the Court of first instance. As was pointed out by the Judicial Committee in the case of Kessowji Issur v. Great Indian Peninsular Railway Co. 31 B. 381 : 11 C.W.N. 721 : 6 C.L.J. 5 : 4 A.L.J. 461 : 2 M.L.T. 435 : 9 Bom. L.R. 671 : 17 M.L.J. 347 : 34 I.A. 115 which was applied in Krishnama Chariar v. Narasimha Chariar 31 M. 114 : 3 M.L.T. 308 “the legitimate occasion for Section 568 of the Code of 1832 is when on examining the evidence as it stands, soma inherent lacuna or defect becomes apparent, and not where a discovery is made, outside the Court, of fresh evidence and the application is made to import it; that is the subject of separate enactment in Section 623”. It has not been suggested before us that the documentary evidence, admitted by the District Judge at the appellate stage, was not available during the pendency of the trial in the Court of first instance. This additional evidence, therefore, ought not to have been received. But even if the evidence be received, how does it affect the case? The question in controversy is, what is the true character of the land for which rent is claimed; and not whether it is part of a ghatwali property which includes agricultural land. It has finally been suggested that the plaintiff has attempted to split up the rent payable in respect of the ghatwali property. If this objection were well founded, the suit, as framed, would not be maintainable in any Court. But the, previous litigation between the parties shows that the rent in respect of the bastee lands has been successfully claimed separately from the rent payable in respect of the other lands included in the ghatwali property. Consequently, the fact that the bastee land now in dispute forms part of a ghatwali property, does not affect the decision of the question raised before us. The truth appears to be that by some arrangement, the details whereof have not been disclosed in the present litigation, the defendants collected rent from the under-tenants, both in respect of the bastu lands and the agricultural lands and made them over to the plaintiffs, separately, in respect of the two classes of lands. The suit, therefore, is clearly maintainable in the Civil Court. Kumood Narain Bhoop v. Purna Chunder Roy 31 M. 114 : 3 M.L.T. 308.
3. The result is that this appeal is allowed, the decree of the District Judge set aside and that of the Court of first instance restored. This order will carry costs both here and in the Court of appeal below.
