1. These suits were brought to recover rent from defendants, and the question is whether they were rightly field in the Court of the District Munsif, or should have been filed in the Revenue Court.
2. The first question is whether the matter is res judicata in plaintiffs' favour in consequence of the judgments in the litigation which ended in Civil Revision Petition No. 124 of 1913. There is first the judge-ment of the District Munsif. But it cannot comply with the requirements of Section Civil Procedure Code, unless. it is that of a competent Court; and the competency of the District Munsit's Court is the very point in dispute and can only be determined as regards the former litigation with reference to the considerations applicable to that now before us. No clear authority directly in point has been referred to. But in the circumstances it is not possible to hold that the plea of res judicata based on the previous judgment of the District Munsif affords any separate ground for a decision in plaintiffs' favour. There is then the judgment of this Court in the civil revision petition above referred to. But it amounted merely to a refusal to interfere under Section 25, Act IX of 1887, with the District Munsif's decision; and it accordingly did not supersede that decision or substitute any new decision for it. Although, therefore, this Court, as the Appellate Authority from both Civil and Revenue Courts, might have been 'a competent Court, within the meaning of Section 11, Civil Procedure Code, and its confirming decision as to jurisdiction might have been res judicata between the parties, if the question had been raised in an appeal, the decision relied on by plaintiffs, is useless for that purpose. In these circumstances the res judicata relied on is not established.
3. On the merits the Revenue Court's jurisdiction is now alleged on the ground not taken in the previous litigation, that plaintiffs, suing for rent as inamdars under a grant subsequent to the Permanent Settlement in 1802, are land-holders under the Estates Land Act. There is no question as to the law and on the only question arguable in revision, whether Exhibits I, H and III, which refer only to the Hindu year, refer to that year in one cycle or another, we agree with the lower Court. Plaintiffs, therefore, must fail.
3. The civil revision petitions are dismissed with costs.
4. The chief question argued before us in these revision petitions is one of res Judicata. The facts necessary to be stated to understand the plea are these. The present plaintiffs had previously sued the defendants in the Small Cause Court for tiriva or rent due by them as tenants of certain inam lands of theirs for Fasli 1321. Defendants had raised the plea that the Court had no jurisdiction as the suits were exclusively cognisable by the Revenue Court, the inam being an estate falling under Section 3, clause 2, of the Madras Estates Land Act. On the evidence then adduced by the defendants the Court held that it was not such an estate and that it had jurisdiction to try the suits and gave the plaintiffs decrees for rent against the various defendants. These findings were accepted by the High Court and the revision petition filed by the defendant was dismissed. The plaintiffs have again sued the defendants in the Small Cause Court for the rent of the same lands for the succeeding Faslis 1322 and 1323; and it is from those suits the present revenue petitions have been filed.
5. Defendants again raised the plea that the Small Cause Court had no jurisdiction on the same ground as before and the plaintiffs have pleaded in answer that the defendants were barred by res judicata from raising such a plea on account of the previous decision as to jurisdiction. The Munsif overruled the plaintiffs' contention and allowed defendants to adduce evidence which they did more fully than before and found that the plaintiffs' inam was a dharimilla one given by the zemindar after the Permanent Settlement, that it was an estate within the meaning of Section 3 clause 2 (d) and (e) of the Estates Land Act and that the suits were, therefore, not cognisable by him but only by the Revenue Court. He, therefore, returned the plaints to be presented to the proper Court.
5. It was argued before us that the question of Civil Court's jurisdiction was resjudicata between the parties and, therefore the Munsif was wrong in allowing evidence and coming to a contrary conclusion. No authority has been cited to support the contention that the doctrine of res judicata applies to questions of jurisdiction. On principle it seems to me that such a contention cannot be valid. The jurisdiction of a Court like that of the lower Court created by Statute is determined by the Statute itself; it can neither be added to nor diminished by any act of the litigant parties. The Privy Council has laid down in Ledgard v. Bull 4 Sar. P.C.J. 741. and again in Minaksi Naidu v. Subramanya Sastri 11 M. s 26 that no amount of consent or waiver of parties can give jurisdiction to a Court which has not got it, though, if a Court has jurisdiction, a party may be barred by his conduct from objecting to irregularities in the institution of the suit. The parties may make a judge their arbitrator and give jurisdiction to him as such but that question is not material here. It seems to me that, for the same reasons as in the case of consent and waiver, jurisdiction cannot be conferred on a Court by any estoppel operating between parties. The plea of res judicata is really a plea of a species of estoppel viz., estoppel by judgment or by verdict. I think, therefore, that such a plea is not available to give jurisdiction to a Court which it otherwise has not in other words a plea of res judicata to oust or confer jurisdiction is an incompetent plea.
6. This view receives some support from the language of Section 11, Civil Procedure Code, for under it, for a plea of res judicata to be upheld, the Court before which it is raised must first satisfy itself that the first suit was heard and decided by a Court competent to try the subsequent suit. It is only then that the bar by res judicata arises; and therefore, that bar cannot refer back to the competency of the Court itself; and the question of competency cannot thus be decided by the application of the doctrine of res judicata.
7. It was, however, pointed out that in the present cases the jurisdiction itself depended on findings of fact as to the origin and the nature of the plaintiffs' inam and it was argued that the findings on these points should at least be treated as res judicata; and it was further urged by way of analogy with reference to cases which have held that, though the principle of res judicata may not apply to a pure question of law, see Parthasaradi Ayyangar v. Ohinnakrishna Ayyangar 5 M.s 304. and Venku v. Mahalinga 11 M.s 393and Ghamanlal v. Bapubhai 22 Bs. 669 it does apply to a mixed question of law arid fact, see Koyyana- Ghit-temvia v. Loosy Gavaramma 29 M.s 225and Bishnu Priya Ohowahrani v. Bhaba Sundari Debya 28 C. s 318. that it should be held to apply to a question of jurisdiction when it depended on facts as in the present cases, even though it may not apply if the question of jurisdiction was a pure question of law.
9. It seems to me this contention is untenable as the question of jurisdiction is essentially different from any mere question of law. Jurisdiction is the very foundation which entitles the Court to deal with a particular case and dispose of questions arising in it between the parties. If I am right in my view that jurisdiction cannot be conferred or affected by any estoppe between parties but is a matter the Court has to decide for itself, I do not see how the Court can be prevented from considering the real facts of a case or from allowing parties to prove such facts. A Court cannot be compelled to try a cast which it has in reality no jurisdiction to do, by preventing the parties from proving the facts which show it.
10. I do not think the fact that the High Court in revision accepted the former finding, of the Small Cause Court makes any difference on this question. Questions of res judicata have to be decided with reference to the findings of the Court that tried the Suit in the first instance : and that, under Explanation II to Section 11, Civil Procedure Code, irrespective of any provision as to the right of appeal, the Court of Appeal or of Revision, even when it comes to a finding of its own, really finds only what the Trial Court should have found if it was acting correctly and legally; and for purposes of res judicata that finding can only be treated as the correct finding of the First Court and not as a finding of the Appellate or Revisional Court, as the Original Court.
11. If plaintiffs' argument as to res judicata is accepted, it will nullify the effect of Section 189 of the Estates Land Act between the parties with reference to the rent of the suit lands. I do not think a view which leads to this position should be adopted.
12. I agree that the plea of res judicata fails, that we should accept the finding of the lower Court that the inam is a dharimilla one and the Small Cause Court has no jurisdiction and that these civil revision petitions should be dismissed with costs.