JUDGMENT
Anwar Ahmad, J.
1. The suit giving rise to this appeal was originally filed under Section 106 of the Bihar Tenancy Act, hereinafter referred to as the Act, before the Assistant Settlement Officer Furnea, on the 2nd July 1958. On the 13th December 1958, the Assistant Settlement Officer found that complicated questions of inheritance, survivorship and title were involved in the case. He, therefore, transferred the suit to the Civil Court for disposal.
2. The case of the plaintiff-appellants was that Tabloo Mandal, father of the plaintiffs, had a brother Lahsun Mandal. Lahsun died leaving a son Parsan. Both the brothers were members of a joint Hindu family. Parsan died leaving a son Chalbal. Chalbal died unmarried and the plaintiffs came in possession of the entire lands by survivorship. During the recent survey operation, these lands came to be recorded under Khata No. 61; but the Kha-tian showed that the defendant-respondent also had got 8 annas interest in this Khata and his possession over some other plots was also recorded while some other plots were recorded in the joint possession of the parties. On the case of the appellants, the respondent had no title whatsoever to the lands in dispute nor was he related to them in any way. He was a labourer and had been wrongly set up by the enemies of the appellants.
3. The case of the respondent was that Piar Chand. father of Tabloo, had three sons, namely, Tabloo, Lahsun and Lachh-man. The lands in dispute were acquired by Tabloo and Parsan jointly. Parsan died leaving his son Chaibal. They were separate. On the death of Chalbal, Manglu, son of Lachhman, came in possession of his eight annas share and, on his death, the respondent, the son of Manglu, came in possession thereof and, as such, the survey record-of-rights was correctly prepared.
4. The trial Court found that the respondent was not the grandson of Piar Chand and he did not belong to the family of the appellants. It further found that the respondent had no title to the lands nor was he in possession of the same, and, as such, the survey entry was wrong. On these findings, the suit was decreed.
5. On appeal by the respondent, the Court of appeal below, on a scrutiny of the evidence on record, affirmed these findings but dismissed the suit on the ground that, as the disputed question of title was involved in the case, the Assistant Settlement Officer had no jurisdiction to entertain the plaint.
It further held, following the Bench decision of this Court in E. A. Moore v. Rai Babu Gulab Chand Saheb, AIR 1923 Pat 213, that, if the Assistant Settlement Officer had no jurisdiction to decide the question of title under Section 106 of the Act, he could not entertain the plaint nor could he transfer it to the Civil Court and, as such, the decision given by the learned Additional Munsif was without jurisdiction.
6. Mr. Raghunath Jha for the appellants has, in the first instance, seriously contended that the suit as framed was a suit falling under Section 106 of the Act. This argument of learned counsel is without any force. The scope of such a suit is limited by the words of Section 106 of the Act. It is a suit for “the decision of any dispute regarding any entry made in or any omission” from the record. Thus, the only relief which a plaintiff can obtain in a suit under Section 106 is the correction of the record on the basis of possession. A reading of the plaint as a whole leaves no room for doubt that complicated questions of inheritance, survivorship and title have been raised therein. So far as the reliefs are concerned, the first relief claimed by the plaintiffs is that it should be declared that the disputed lands are their ancestral property and the defendant has no interest therein. The second relief, which is for correction of the survey entry, has been
made dependent on the first relief. It is, thus, clear that the main relief claimed by the appellants was a declaration of title in their favour as against the respondent who, according to them, had no title whatsoever. The Court of appeal below was, therefore, right in holding that the suit as framed did not fall under Section 106 of the Act, and, as such, the Assistant Settlement Officer had no jurisdiction to entertain the plaint or to transfer it to the Civil Court.
It will be useful to quote the following lines from the Bench decision in E. A. Moore’s case, AIR 1923 Pat 213:
“In my opinion, it is impossible to contend that the suit does not raise a question of title as between rival proprietors. I hold that the Settlement Officer had no jurisdiction to entertain this suit. That being so he had no jurisdiction to make any order under Section 106 transferring the case to a competent Civil Court for trial. The Civil Court accordingly had no jurisdiction to try the suit.”
The facts of that case were very much similar to those of the present case and I respectfully follow the principles laid down by their Lordships.
7. It is next contended by learned counsel for the appellants that, even if the order of the Assistant Settlement Officer transferring the suit to the Civil Court was an irregularity, no sooner had the plaint been admitted by the Civil Court than the irregularity was cured. This submission of learned counsel has no force. It overlooks the provisions of Sub-rule (1) of Rule 1 of Order IV of the Code of Civil Procedure, which runs as fallows:
“Every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf.”
This sub-rule lays down that every suit has to be instituted by “presenting a plaint”. The expression “presenting a plaint”, in its ordinary dictionary meaning, connotes that it should be handed over to the Court by some human agency. It cannot include the transfer of a plaint from one Court to another. The Code of Civil Procedure, although it provides for the transfer of an execution makes no provision for the transfer of a plaint.
Learned counsel relied on Wali Mohammad Khan v. Ishak Ali Khan, AIR 1931 All 507 (SB), Kanhaiya Lal v. Panchayati Akhara, AIR 1949 All 367 (FB), and Shiv Narain v. Deputy Collector (C) Mathura, AJR 1959 All 487. In none of these cases, however, the plaint was transferred from one Court to another. In these cases, there were irregularities in the presentation of the plaint, but in the instant case there was no defective presentation but a
transfer of the plaint from the Revenue to the Civil Court.
Reliance has also been placed on Nathulal v. Shivnarayan, AIR 1955 NUC (Madh B.) 3774. In that case, the plaint was sent to the Court by post. It was held to be a proper presentation. I am, however, unable to subscribe to this view on the ground that, under Rule 10 of the Preliminary Chapter of this Court’s General Rules and Circular Orders (Civil), Volume I, no document or proceeding required to be presented to or filed in Court, which is sent by post or telegraph, can be received or filed in Court.
8. Both the points raised on behalf of the appellants having failed, the appeal is dismissed; but there will be no order for costs.