1. These four appeals raise a common question. S. A. No. 1557 of 1965 is filed by the respondents in S. A. 1357 of 1965 to the extent to which the decisions of the courts below went against them.
2. The short facts, the narration of which is necessary for the purpose of appreciating the rival contentions of the parties, are that the village of Mathi in Tanjore Dt. is an estate to which the Madras Estates Land Act of 1908 and the Madras Estates Land (Reduction of Rent) Act 1947 applied; but not the Madras Estates (Abolition and Conversion into Ryotwari) Act 1948. The respondents to the first three appeals claimed that the lands with reference to which they filed the present suit for recovery of rent were private lands. It is the common case of the parties that a notification under the Madras Estates Land (Reduction of Rent) Act 1947 was made by the Government fixing reduced rates of rent for ryoti lands in the village of Mathi. However, the Madras Estates Land (Reduction of Rent) Act 1947, as originally passed did not contain any provision for deciding the question whether a particular piece of land is a ryoti land or a private land in an estate with reference to which a notification has been made under the said Act. Subsequently, by an amendment made in 1956, namely, Madras Act 29 of 1956, Section 3-A was introduced prescribing the machinery for the purpose of determining whether any land in a a village is or is not ryoti land. Under that section, provision was made for determining that question by the Collector and a right of appeal was provided to the Tribunal having jurisdiction over the village. Section 3-A (4) (b) of the Act states that the decision of the Tribunal on the appeal shall be final and shall not be liable to be questioned in any court of law.
3. In this case, the respondents herein filed an application before the Collector for determining the question whether the lands involved in these appeals are ryoti lands or private lands. The application was transferred to the Revenue Divisional Officer, Kumbakonam, who by an order dated 20-2-1959 made in M. A. 22 of 1957, decided that the lands are private lands. The appellants herein took up the matter on appeal to the Tribunal, and the Tribunal by its order dated 12-3-1960, dismissed the appeal thereby confirming the conclusion of the Revenue Divisional Officer that the lands are private lands and not ryoti lands. At that stage, the respondents herein filed suits for recovery of rent from the appellants herein. The appellants resisted the claim on several grounds, the most important of which is that the lands are ryoti lands situate in an Inam estate and therefore the respondents are not entitled to file the euit in the Civil Court for recovery of rent. After the Tribunal dismissed the appeal, the respondents preferred a writ petition on the file of this Court for quashing the order of the Tribunal. By an order dated 4-4-1962, Veeraswami, J., dismissed the writ petition in the following terms-
'The petitioner's proper remedy is to Institute a suit. The petition is dismissed. The rule is discharged. No costs'.
I must point out at this stage that the suits filed by the respondents herein were decreed by the learned District Munsif of Kumbakonam, and against the said Judgments and decrees, the appellant herein had preferred appeals to the learned Subordinate Judge of Kumbakonam, and during the pendency of the said appeals, the order above quoted in the writ petition was passed by this Court. Before the learned Subordinate Judge, the appellants put forward only two contentions, namely, the suit lands are not private lands of the plaintiff and the Civil Court had jurisdiction to go into that question and secondly there was no relationship of landlord and tenant between the parties. Except in the appeal which has given rise to S. A. 1357 of 1965, in all the other appeals, the learned Sub- ordinate Judge held that the relationship of landlord and tenant existed between the parties. With regard to the question as to whether the lands are private or ryoti lands, he came to the conclusion that the order of the Estates Abolition Tribunal holding that the lands are private lands was final and the Civil Court had no Jurisdiction to go into that question. Since the order in the writ petition had been passed by that time, an argument seems to have been advanced before the learned Subordinate Judge that in view of the terms of the order in the writ petition, the Civil Court had jurisdiction to go into the question as to whether the lands were private lands or ryoti lands. The learned Subordinate Judge dealt with this contention in his judgment in the following terms-
'The learned Counsel for the appellants also urged another aspect of the case. His contention is that inasmuch as in the writ petition No. 401 of 1960 filed by him to quash the order of the Estate Abolition Tribunal in this case, the High Court has been pleased to observe that the petitioner's proper remedy is to institute a suit, he is entitled to put forward a defence that the suit lands are not private lands of the plaintiffs and that they are ryoti lands. It is not possible for me to accept such a contention. No such right of defence is given to the appellants in the suit in question. His right to question the character of the land in the suit has been barred as already observed by me under the provisions of the Amending Act referred to above'.
With the result, the appeals preferred by the appellants herein were dismissed. The above facts arise in S. A. 345 of 1963 and the facts in the other appeals are similar with some immaterial differences in dates etc. With regard to the appeal which has given rise to S. A, 1357 of 1965 and 1557 of 1965, there was a further question that was decided by the learned Subordinate Judge. The learned Subordinate Judge applying the provisions contained in the Transfer of Property Act held that the defendants in the suit who were not the original lessees, but the sons of the original lessees, were not tenants and consequently, they were trespassers, and they were liable to pay damages for use and occupation. In S. A. 1357 of 1965, preferred by the tenants, the decision of the learned Subordinate Judge is challenged not only on the ground that the Civil Court had jurisdiction to decide the question whether the suit land is. ryoti land or private land, but also on the ground that the finding of the learned Subordinate Judge that the appellants were only trespassers was illegal. S. A. 1557 of 1965 filed by the landlord against the same judgment, in addition to challenging the finding of the learned Subordinate Judge that the respondents therein were not tenants, but trespassers also challenges the quantum of the amounts awarded by the Subordinate Judge as damages for use and occupation. Therefore, the common question that arises in all these appeals is whether the Civil Court has jurisdiction to go into the question whether the suit lands are ryoti lands or private lands. The additional question that arises for consideration in S. A. 1357 of 1965 and 1557 of 1965 is that whether the conclusion of the learned Subordinate Judge that the appellants in S. A. 1357 of 1965 were only trespassers is correct or not. I shall first dispose of the additional ground arising in S. A. 1357 of 1965 and 1557 of 1965.
4. The common case of the parties is that the lands are agricultural lands and the leases were agricultural leases. If that was the case, the provisions of the Transfer of Property Act as such will not apply. If the case of the landlord that the lands are private lands is accepted, then the provisions contained in the Madras Cultivating Tenants Protection Act 1955, will apply. Section 2 (a) of the Act defines 'cultivating tenant' In relation to any land as meaning a person who carries on personal cultivation on such land, under a tenancy agreement, express or implied, and includes any such person who continues in possession of the land after the determination of the tenancy agreement and the heirs of such person, but does not include a mere intermediary or his heirs. In view of this definition, the appellants in S. A. 1357 of 1965 as heirs of the original lessee, will be cultivating tenants within the scope of the Act. Consequently, the conclusion of the learned Subordinate Judge that the appellants in S. A. 1357 of 1965 are trespassers cannot be supported. On this question, there was no dispute before me between the two parties.
5. With regard to the amount awarded to the appellant in S. A. Ho. 1557 of 1965, that being a finding on a pure question of fact, its correctness cannot be canvassed in the second appeal. Therefore, S. A. 1357 of 1965 and 1557 of 1965 will be allowed to the extent of vacating the finding of the learned Subordinate Judge holding that the appellants in S. A. 1357 of 1965 are trespassers and not tenants.
6. Then remains the common question arising in all the appeals as to the jurisdiction of the Civil Court to determine whether the suit lands are private lands or ryoti lands. I have already referred to the provision contained in Section 3-A (4) (b) of Madras Act (30 of 1947). That provision makes it abundantly clear that the decision of the Tribunal whether a particular land is a ryoti land or not is final and the correctness of that decision cannot be canvassed in any Court of law. If authority is needed in support of such a conclusion, reference can be made to the decision of the Supreme Court in Desikacharyulu v. State of A. P., : AIR1964SC807 dealing with a similar provision contained in the Madras Estates (Abolition and Conversion into Ryotwarl) Act, 1948. Mr. K. Parasaran, learned Counsel for the appellants in these cases did not contend that notwithstanding the provision already referred to by me, a Civil Court has got jurisdiction to decide whether a particular land in an estate 13 ryoti land or not. On the other hand, in view of the express provision contained in Section 3-A (4) (b) of the Act, no such contention is possible. The contention of Mr. Parasaran is that the order in the writ petition constitutes res judicata as between the parties so as to prevent the respondents from raising the contention that the Civil Court had no jurisdiction to determine whether the lands in question are private lands or ryoti lands. It is unfortunate that the express provision contained in Section 3-A (4) (b) of the Act was not brought to the notice of the learned Judge who disposed of the writ petition. I must also point out one further fact. Against the order in the writ petition, the appellants preferred a writ appeal to this Court; but they have chosen to withdraw the same, Under these circumstances, the contention of the learned Counsel Mr. K. Parasaran, is that the statement contained in the order in the writ petition, namely, the petitioner's proper remedy is to institute a suit, constitutes the determination of the question whether the Civil Court has jurisdiction to decide whether the lands in question are private lands or ryoti lands or not and that determination has been rendered by this Court in the presence of both the parties and hence binding on both the parties, and consequently it is not open to the respondents to raise the plea of want of jurisdiction in the Civil Court on this point in the suits for recovery of rent instituted, by them. On the other hand, the contention of Mr. R. Kesava Aiyangar, the learned Counsel for the respondents, is that the dismissal of the writ petition would operate as a res judicata preventing the appellants herein from raising the contention that the suit lands are ryoti lands and not private lands. Mr. R. Kesava Aiyangar in support of his contention relied on the decisions of the Privy Council in Watson v. Collector of Rajashya, (1869-70) 13 M. L A. 160 and in Fateh Singh v. Jagannath Baksh Singh , the decision of the Calcutta High Court in Abdul Hamid v. Bijoychand : AIR1932Cal108 , the decision of the Patna High Court in Ganesh v. Baidyanath, AIK 1958 Pat 270 and the decisions of this Court in Krishnaswami v. Manikka : AIR1931Mad268 and Veeraragu v. Manikkavasagam : AIR1934Mad68 . In reply, the contention of Mr. K. Parasaran is that none of these decisions will prevent him from putting forward the contention that the lands are ryoti lands, because the writ petition filed by the appellants was not dismissed after considering the merits, but summarily, on the ground that the alternative remedy of a suit was available to the appellants.
7. In the view I am taking in relation to the first contention of Mr. K. Parasaran, it is unnecessary for me to decide whether the dismissal of the writ petition would constitute res judicata, so as to prevent the appellants from raising the contention that the suit lands are ryoti lands.
8. So far as the mam question argued by Mr. K. Parasaran, I must point out that the learned Counsel was not able to bring to my notice any decision which has taken the view that a Civil Court whose jurisdiction has been expressly taken away by the statutory provision can get iurisdiction by having recourse to the principle of res judicata. Mr. Parasaran relied on the decision of the Supreme Court in State of West Bengal v. Hemant Kumar, : 1966CriLJ805 . In my view, that decision does not lay down any such proposition. Really speaking, it is very doubtful whether such a plea of res judicata will be available to the appellants at all. Before a plea of res judicata can be sustained either under the provisions of the Civil Procedure Code or under the general principles, it must be established that the determination which is said to constitute res judicata was with reference to a matter which was directly and substantially in issue between the parties in the earlier proceedings. Explanation III to Section 11, C. P. Code states that the matter referred to in the section must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. As I pointed out earlier, the writ petition was dismissed after the suit was decreed and before the appeal was disposed of by the Subordinate Judge. With the result, neither the judgment in the writ petition nor the pleading in the writ petition were filed in these proceedings for the purpose of establishing that the question regarding the jurisdiction of the Civil Court was directly and substantially in issue between the parties in the writ petition. Even this will be sufficient to reject the plea of res judicata sought to be raised by the learned Counsel for the appellants. However, I do not want to rest my conclusion on this somewhat narrow and technical ground, in view of the fact that counsel for both the parties before me relied on the same order as constituting res judicata against the opposite party. The question that really falls for determination in these second appeals is whether the statement of this Court while dismissing the writ petition, that the petitioner's proper remedy is to institute a suit 'can be said to be a determination of the question regarding the jurisdiction of the Civil Court to entertain a plea whether a land in an estate is a ryoti land or not. For one thing, I am unable to accept the contention of the learned counsel that the statement contained in that order disposing of the writ petition constitutes a determination on the question regarding the jurisdiction of the civil court. No doubt, that statement was the basis on which the writ petition was dismissed. But that will not by itself constitute that statement a determination of the question regarding the jurisdiction of the civil court to go into an issue whether a particular land is a ryoti land or not. Apart from this, the question of jurisdiction is really a matter between a party and a Court and cannot be said to be a matter between the parties before the Court. Whether a particular party raises the question regarding the want of jurisdiction of a Court or not, it is the duty of the Court to take note of the statutory provisions conferring jurisdiction on it or taking away the jurisdiction from it. If, under the law a Court has no jurisdiction, no amount of consent, acquiescence or assertion on the part of any of the parties can confer jurisdiction on the Court.
In Raleigh Investment Co. Ltd. v. Governor-General-in-Council, 74 Ind App 50 AIR 1947 PC 78 , the Privy Council pointed out that 'it is pars judicis to take jurisdiction into consideration and the section has to be consider ed'. Therefore, in the light of this statement of the law, whenever a party conies before the Court and raises the plea that a particular land in an estate is a ryoti land or private land, it is for the Court to consider the provision contained in Section 3-A (4) (b) of the Act and take that into account for determining whether it had jurisdiction to proceed with the matter or not. In Jwala Debi v. Amir Singh : AIR1929All132 , it has been observed thus-
'There can be no doubt that a decision on a point of law is as much binding on the parties, in a subsequent litigation provided other ingredients for a principle of res judicata to apply are present, as a decision on a point of fact. The question whether the previous decision was right or wrong is entirely irrelevant; but these considerations do not apply where a question of jurisdiction arises. Looked at closely, a question of jurisdiction although it may be raised by the defendant, is a question that virtually arises between the plaintiff and the Court itself. The plaintiff invokes the jurisdiction of the Court. The defendant may or may not appear. If the Court finds that it has no jurisdiction to entertain the plaint, it will order the return of it for presentation to the proper Court. The defendant, if he appears, and if he so chooses, may point out to the Court that it has no jurisdiction, A decision on the question of Jurisdiction does not affect in any way the status of the parties or the right of one party to obtain redress against the other. The fact that a decision as to jurisdiction is not binding on the parties in a subsequent litigation will be apparent from this. Suppose instead of instituting the present suit in the Revenue Court, the appellant had gone to the Civil Court and asked for redress. She could not rely on the decision of the Revenue Court in order to induce the Civil Court to exercise jurisdiction in the matter of her suit. She could not say that because the decision was given as between herself and the defendant, the presiding officer of the Civil Court was bound to exercise jurisdiction although he had not got it. She would not be heard if she said that the defendant was precluded from saying that the Revenue Court had no jurisdiction to entertain the suit. As J have said, looked at closely, it will be found that a question of jurisdiction is not a question which may be said to have arisen between the parties'.
The principles underlying this decision were followed by a Bench of the same High Court in Nathan v. Harbans Singh : AIR1930All254 . In Dt. Board Dharbanga v. Suraj Narain, AIR 1936 Pat 198 it has been held thus-
'That brings me to the question whether a question of law can be said to be subject to the principle of res judicata. ......... Questions of law are of all kinds and cannot be dealt with as though they were all the same. Questions of procedure, questions affecting jurisdiction, questions of limitation, may all be questions of law. In such questions, the rights of parties are not the only matter for consideration. The Court and the public have an interest. When a plea of res judicata is raised with reference to such matters, it is at least a question whether special considerations do not apply. ............ In the question of jurisdiction, notonly parties themselves, but the Court and the public had an interest'.
In the light of these principles, to apply the principle of res judicata and to contend that the statement contained in the order of this Court dismissing the writ petition conferred jurisdiction on the Civil Court which has been expressly taken away by the statute will be notonly illegal and contrary to law, butalso contrary to public policy. Whenever a question of jurisdiction, is involved, it will be the duty of the Court toconsider the same and decide it. Theprinciple of res judicata cannot be allowed to defeat the provisions of a statutory,enactment which affects the jurisdictionof a Court, and a party cannot by his admission, omission or previous conduct orconsent confer jurisdiction on a Court,where none exists. Hence I hold that theorder of this Court in the writ petitiondoes not operate as to confer jurisdictionon the Civil Court to decide whether thesuit lands are ryoti lands or not, whichjurisdiction has been taken away by theexpress provision contained in Section3-A (4) (B) of Madras Act (30 of 1947).No other question arises in these appealsor was argued before me.
9. The result is, I dismiss S. A. 345 of 1963 and S. A. 571 of 1964. S. A. 1357 of 1965 and 1557 of 1965 will stand allowed to the extent indicated already by me, namely, to the extent of vacating the finding of the learned Subordinate Judge that the appellants in S. A. 1357 of 1965 are not tenants, but trespassers, and will stand dismissed in other respects. There will be no order as to costs in any of these appeals. No leave. In view of the above conclusion of mine, C. M. P. 5770 of 1967 and 5771 of 1967 are dismissed.