1. This second appeal arises out of execution proceedings. The appellant, who is the proprietor of the Balrampur estate, is the decree-holder, and he filed an application in the Court of an Assistant Col lector of the First Class for the execution of a decree which had been passed in his favour by that Court on 31st May 1985, for the recovery of a sum of money which was in excess of Rs. 500. The Assistant Collector granted the application and ordered execution to proceed. The judgment-debtors, respondents before us, then filed an appeal in the Court of the District Judge in accordance with the provisions of the Agra Tenancy Act of 1926. The learned Additional District Judge, who heard the appeal, held that the revenue Court, which had passed the decree sought to be executed, 'had no jurisdiction to pass such a decree and only a civil Court was competent to pass a decree like that' and that 'the decree in that respect was a nullity,' and could not, therefore, be executed. He accordingly allowed the judgment-debtors' appeal and dismissed the application for execution.
2. The material facts are these : It is common ground that one Amir Mahton had been the the kadar of village Phulpur, Mahal No. 1, on behalf of the zamindar, viz., the appellant or his predecessor-in-interest. On the death of Amir Mahton, the respondents, who are the surviving members of his family, remained in possession of the Mahal in question and continued to realise the rents from the tenants and to make payments to the zamindar. The suit, which resulted in the decree now sought to be executed, was instituted on 18th July 1934, against Maula Baksh, a brother of Amir Mahton, and Abdul Karim, a grandson of Amir Mahton. It was for the recovery of RS. 1976-11-0 on the allegation that that was the balance of the theka money due from the defendants in respect of the years 1339, 1340 and 1341 faslis. It was alleged in the plaint that a fresh deed of lease had been executed in favour of the defendants after the death of Amir Mahton, and reliance was placed upon a deed purporting to be such a lease. The defendants contested the suit on certain grounds bat did not question the jurisdiction of the Court. The issues framed by the learned Assistant Collector, who tried the suit, so far as the question raised by this appeal is concerned, were as follows:
(1) Are the defendants thekadars of the plaintiff of village Phulpur?
(2) Is rent for the years in suit (1339, 1340 and 1341), due from the defendants as thekadars?
He took up these issues together. He said in his judgment that it was admitted by the parties that Amir Mahton was thekadar of the disputed Mahal in 1336 fasli (1928-9 A.D.) and that Amir died at the end of 1336 fasli. He said further that the defendants' case was that, after the death of Amir Mahton, proceedings had been taken by the zamindar for the cancellation of the theka and that since then they, the defendants, had; had nothing to do with the plaintiff's Mahal in suit. The finding of fact arrived at by the Assistant Collector was thus expressed:
It is clear from the evidence of these witnesses that the defendants and their sons and Karinda had realised rent from the tenants in the years in suit and that they had been in exclusive use and occupation of the entire Mahal in those years. The registers of the Balrampur estate are kept in a very regular and systematic way. The plaintiff had filed the following registers and papers which prove satisfactorily that the defendants had been in possession of the disputed Mahal as the thekadars of the estate in the years in suit.
He then gave a list of the registers filed by the plaintiff and discussed the entries in those registers. He also found that the amount claimed by the plaintiff was due to him from the defendants. He, however, held that the deed relied upon by the plaintiff, though genuine, was not valid under the law and gave certain reasons for that view into which it is not necessary for the purposes of this appeal to enter. He next held that as no valid deed of lease had been executed in favour of the defendants, the basis on which he could decree the suit was that the defendants were liable to pay to the plaintiff the sum claimed by way of compensation for use and occupation of the plaintiff's property. He accordingly decreed the suit. The defendants did not appeal, although, if they chose so to do, they could have appealed to the District Judge in accordance with the provisions of Section 242, Tenancy Act of 1926. The result was that the decree became final.
3. The application for execution out of which this appeal has arisen was filed in June 1939. The application was admittedly filed within time. Maula Baksh had by that time died and the decree-holder took the proceedings against Abdul Karim, who was one of the original defendants and against the other members of Amir Mahton's family who were, on the decree-holder's application, brought on the record as representing the interest of Maula Bakhsh deceased. It is common ground that the present respondents represent the interests of the original defendants-judgment-debtors. The respondents contested the application for execution on various grounds but did not allege or contend that the Court which had passed the decree had no jurisdiction to entertain the suit and that the decree was consequently a nullity and could not be executed. The substantial plea which they raised was that by an order of Government all rents for the years 1339, 1340 and 1341 faslis had been remitted and that the decree-holder was, therefore, not entitled to recover anything from them. The Assistant Collector overruled the judgment-debtors' objections and, as has been stated above, ordered execution to proceed. The judgment-debtors, as we have said above, appealed against the order of the Assistant Collector and it was then that for the first time they stated in their memorandum of appeal that the decree was not executable as it had been passed by a Court which had no jurisdiction to entertain the suit and was, therefore, a nullity. The learned Judge of the lower appellate Court considered that point alone and, accepting the judgment-debtors' contention, held that the decree could not be executed. The ground of his decision was that the Assistant Collector had held on the evidence that the defendants 'were in use and occupation of the land and passed a decree by way of compensation.'
4. The first point raised by Mr. Shambhu Prasad on behalf of the appellant is that, in this case, it was not open to the lower appellate Court to go behind the decree and to consider the question whether the Court which had passed it had jurisdiction to entertain the suit. He has stated that it is not necessary for his purpose to raise the wider question whether an execution Court can in any circumstances go behind the decree. The manner in which Mr. Shambhu Prasad has put his point is this. He points out that the defendants never appealed against the decree which was passed against them on 31st May 1935, and urges that, if they had filed an appeal in the Court of the District Judge, as the law allowed them to do, and had raised the objection that the suit had been instituted in the wrong Court, the District Judge would have applied Section 268, Tenancy Act of 1926, and would have disposed of the appeal as if the suit had been instituted in the right Court. He contends that, when the District Judge, if he had heard an appeal from the original decree, could not, have given effect to the objection of want of jurisdiction in the trial Court and would have been bound to dispose of the appeal as if the suit had been instituted in the right Court, he a fortiori could not, when hearing an appeal arising out of proceedings for the execution of that decree, entertain such a contention. The second point raised by Mr. Shambhu Prasad is that even on the merits of the question the view taken by the learned Additional District Judge is erroneous. He points out that it is well settled that the jurisdiction of a Court is determined by the allegations in the plaint and not by any allegations made in the written statement, much less by any observations made by the Court in its judgment as to the legal position emerging in its opinion, from the facts found by it. The argument is that on the plaint of the suit filed in July 1934, the suit was clearly cognisable by the revenue Court and the Court of the Assistant Collector in which it was filed admittedly was the revenue Court which had jurisdiction over the subject-matter of the suit.
5. The third and last point raised by the learned Counsel is that the learned Additional District Judge is wrong in thinking that a revenue Court can never pass a decree on the ground that the plaintiff is entitled to compensation for use and occupation. Having heard learned Counsel for the parties, we have come to the conclusion that the decision of the lower appellate Court is wrong and that this appeal must be allowed. The first point raised on behalf of the appellant-decree-holder must, in our opinion, be accepted. Section 268, Agra Tenancy Act, 1926, is clear and the learned Counsel is indubitably right in contending that if the defendants had appealed from the decree passed on 31st May 1935, the appeal would have lain to the District Judge and that the District Judge would have been bound - if any contention as to jurisdiction had been raised before him - to hold that the contention could not be entertained and to proceed to dispose of the appeal as if the suit had been instituted in the right Court for, as already stated, the defendants had not raised in the trial Court any objection to the jurisdiction of that Court. If that had happened, it would not have been open to the defendants subsequently to raise that objection in proceedings for the execution of the decree; we are clearly of the opinion that the defendants in this case cannot be allowed to improve their position by failing to raise the objection at the time 'when they should have raised it, if they thought that there was any substance in it. As has been stated above, the defendants did not question the jurisdiction of the Court which tried the suit and passed the decree of 31st May 1935. We then have the facts that they submitted to that decree and never appealed and that they did not raise any such contention in the execution Court of first instance. We have no hesitation in coming to the conclusion that, in the circumstances mentioned above, the learned Additional District Judge was wrong in entertaining this contention of the judgment-debtors.
6. We agree with the learned Counsel for the appellant that it is not necessary in this case to consider the wider question whether an execution Court can, in any circumstances, go behind the decree and decline to execute it on the ground that the Court which pass-ed the decree had no jurisdiction to pass it. A number of rulings were referred to by learned Counsel for the parties. In the view that we have taken, we do not consider it necessary to deal with them in detail. We shall content ourselves by merely stating that, of the rulings cited, the only one which is really of assistance in this case is the Full Bench decision Cantonment Board Muttra v. Kishan Lal : AIR1934All609 . Learned Counsel for the respondents cited the case in Cantonment Board Agra v. kanhaiya Lal : AIR1933All163 . It will be sufficient to point out that the judgments of the learned Chief Justice as well as Mukerji J., in Cantonment Board Muttra v. Kishan Lal : AIR1934All609 show that the Full Bench was not prepared to endorse the decision in Cantonment Board Agra v. kanhaiya Lal : AIR1933All163 . In any event the decision in that case must, in our opinion, be confined to the facts of that particular case and should not be taken as laying down the broad proposition that an execution Court is entitled to go behind the decree and to consider the question whether the Court passing the decree had jurisdiction to entertain the suit, whenever such a question is raised by the judgment-debtor. The case in Sarabjit Pratab v. Inderjit Pratab : AIR1933All751 was also cited on behalf of the respondents. The ultimate decision there was in favour of the decree-holder and it was held that the objection of the judgment-debtor that the Court which had passed the decree had no jurisdiction to entertain the suit was not well founded. The learned Judges, however, in the course of their judgment, when stating the first objection taken by the judgment-debtor, observed as follows:
But there can be no doubt that it is open to judgment-debtor even at this stage to raise the plea that the Court which passed the decree had no jurisdiction to try the suit.
7. With great respect to the learned Judges who decided that case, we are of opinion that this is too broadly put. No reasons are given and no authorities are referred to. In our opinion that case cannot be accepted as laying down the broad proposition that it is always open to an execution Court to go-behind the decree, particularly in view of the judgments pronounced in the Full Bench case in Cantonment Board Muttra v. Kishan Lal : AIR1934All609 mentioned above. The case in Tahir Hassan v. Chander Sen : AIR1935All678 , cited on behalf of the respondents, is really not in point. What was decided in that case was that the execution Court was debarred, by a certain provision in a certain statute, from selling the property which was sought to be sold. In this connection reference may also be made to the decision in Katwari v. Sitaram ('21) 8 A.I.R. 1921 All. 118. Decisions of that type are of no assistance to the-respondents in the case before us. In view of our conclusion on the first point raised on behalf of the appellant, it is not necessary to consider the second and third points raised on his behalf. For the reasons given above we allow this appeal, set aside the-judgment, decree and order of the lower appellate Court and remand the case to that Court with the direction that it will reinstate the appeal filed there as its original number in the register of pending appeals and will proceed to hear and decide it on the merits. The appellant is entitled to his. costs in this Court. The costs in the Courts below will abide the event.