Salil Kumar Datta, J.
1. This Rule is directed against the appellate order of the District Judge, Bankura dated November 27, 1972 in Miscellaneous Appeal No. 7 of 1972 affirming the order of the Subordinate Judge, Bankura dated January 15, 1973 in J- Misc. Case No. 14 of 1970, allowing an application for pre-emption under Section 24 of the West Bengal Non-agricultural Tenancy Act, 1949 (hereinafter referred to as the Act).
2. The disputed land measuring 12 acres of land is the northern half of R. S. Dag No. 203/1431 recorded in R. S. Khatian No. 1206 as Bastu. This plot was part of the big plot No. 203 under Khatian No. 533 in Cadastral Survey. This big plot measuring 1.21 acres was held by three brothers-Gopinath, Lakshmi and Ambika under landlord Gobinda Chandra Das whose interest was recorded in C. S. Khatian No. 529 as Madhya Sattadhikari Chirasthayi Mokarari under the Burdwan Raj as Ghatwali tenure. Gobinda was the benamdar of Jogendra whose sons Rash Behari and Bepin Behari sold their interest in Khatian No. 529 and the under Khatians to Nagendra. Ambika and Gopinath's successor-in-interest Karali sold their 2/3rd raiyati interest in C. S. Dag No. 203 to said Nagendra by a kobala of November 5, 1937 Lakshmi out of about 41 decimals or 1 bigha 4 cottahs 5 ch. of land in his l/3rd share, sold 4 cottahs 13 ch. of land to Nagendra by kobala dated January 17, 1938, giving up about 4 cottahs of land for road. The balance of about 15 cottahs 9 ch. of land was held by him in raiyati interest at the proportionate rent of Rs. 1-2-4 gd under Nagendra, who, as we have seen, had already purchased the landlord's interest. By a registered pattah dated January 18, 1938, in consideration of a selami of Rs. 90/- Nagendra on receipt of a kabuliyat in similar terms gave permanent raiyati mokarari right to Lakshmi in respect of his raiyati interest aforesaid for agricultural purposes.
3. By a lease dated January 17, 1938 Nagendra out of, his khas land of plot 203 settled 7 cottahs 3 ch. 6 gd equivalent to 12 decimals of land to Baneswar Pal for the purpose of building structures. The deed recited that after acquisition of landlord's interest and thereafter of 2/3rd of tenant's share, Nagendra on amicable partition with Lakshmi had been in khas possession of his portion of land a portion whereof was leased out as aforesaid. This deed was signed by both Nagendra and Baneswar and carried a jama of 15 annas. Baneswar in his turn by a kobala dated February 28, 1939 sold to Mihirbala and Bibhabati his leasehold mokarari interest in 12 decimals of land of Dag No. 203 under the said jama with full rights to build and construct buildings, well privy thereon for residence or letting out Mihir Bala erected her house on the southern portion of the land under the lease which was incorrectly recorded only in her name as 'korfa' and under Section 48G (1) (2) B. T. Act and Rule 4 E. A. Rules raiyati Dakhalisatta to remain under the State. Bibhabati in Title Suit No. 230 of 1967 obtained a declaration of her moiety share in the said land and thereafter on February 1, 1969 sold to Sm. Rukmini, the petitioner before us, for a consideration of Rs. 10,200/- the northern half of the aforesaid plot which it was recited in the document as being in her exclusive possession by demarcation bounded by a compound wall, after their joint purchase obviously from Baneswar, the proportionate rent for the land sold being 47-P payable to J. L. R. O. Bankura. It was not mentioned in the document that Mihirbala was a co-sharer in respect of the land held under the said jama and no notice of the sale was served on her.
4. Mihir Bala filed an application for pre-emption of the land sold under Section 8 of the West Bengal Land Reforms Act, 1955 before the Revenue Officer, Bankura registered as Case No. 3 of 1969-70. The application was opposed by the petitioner contending that the land was within Bankura municipality and was not a raiyati holding but non-agricultural land governed by Non-agricultural Tenancy Act and not by Land Reforms Act. By order dated January 21, 1970 Revenue Officer held on merits that the land in dispute was non-agricultural land and accordingly the petition (or pre-emption under the Land Reforms Act Was rejected.
5. Mihir Bala thereafter filed on February 16, 1970 an application under Section 24 of the Act for pre-emption of the disputed land on deposit of the consideration money with 5% compensation in court. It was stated that in view of the dismissal of her application under Section 8 of the Land Reforms Act pursuant to the objection taken by the pre-emptee she was entitled to preemption of the land as a co-sharer of the non-agricultural tenancy of which the disputed land formed a part. A point was also raised that the price in the kobala was unreal being inflated, the real price being Rs. 7,000/-. This application was registered as J. Mis. Case No. 14/70.
6. The petitioner Rukmini opposed the application by filing a written objection contending, inter alia, that the tenancy of Nagendra and Lakshmi was raiyati sthitiban as recorded and Baneswar acquired no other right than 'korfa' under the Bengal Tenancy Act as recorded in respect of the tenancy. The record-of-right correctly described the tenancy as being raiyati and accordingly Non-agricultural Tenancy Act had no application. The parties were no longer co-sharers after vesting and the disputed land was in the separate tenancy of Bibhabati. It was denied that the consideration was inflated while the amount was in fact paid before the Registrar and improvements for over Rs. 2000/- were made in the disputed land. The petition, it was submitted, was accordingly liable to be rejected.
7. By order dated January 15, 1972 the learned Subordinate Judge held that the jama of Rs. 4.50 was not apportioned at any time and there was a merger of two interests in the hands of Nagendra in so far the demarcated area in his khas possession is concerned. Further as admitted by Lakshmi in Ext. 2 (a), there was a partition between him and Nagendra and the original jama of Rs. 4-8-0 ceased to exist. The lease in favour of Baneswar was for non-agricultural purpose and as such Baneswar was a non-agricultural tenant and the land held by him under his lease from Nagendra was non-agricultural land as defined in Section 2 (4) of the Act. Accordingly the provisions of the Act were applicable to the land under the lease. The allegation that the consideration of the sale was inflated was not pressed. The application for pre-emption was accordingly allowed.
8. On appeal the learned District Judge held that in fact there occurred a merger of the portion of the tenancy purchased by Nagendra which became a separate holding after upgrading the status of Lakshmi the remaining tenant to superior interest. There was an amicable partition by metes and bounds of the tenants two-third share acquired by Nagendra and the remaining interest of Lakshmi and the jama was apportioned and thereafter Lakshmi's interest was upgraded. This amounted to a surrender of the raiyati interest in the holding and the original occupancy raiyati holding with jama of Rs. 4/8/- ceased to exist. The ruling in Nirshi Dhobin v. Sudhir Kumar Mukherjee : 1SCR469 did not stand in the way in the circumstances. It was also held that the tenancy under the lease to Baneswar was a non-agricultural one for residential purpose which did not vest in the state and did not deprive Mihir Bala of her status as a co-sharer with Bibhabati in respect of the tenancy. The learned Judge further held that the doctrine of estoppel preventing the petitioner from contending that the land was agricultural land had no application as the case was decided on merits in the earlier proceeding. The appeal was accordingly dismissed and this rule, as already stated, is against the decision.
9. Mr. Saktinath Mukherjee learned Advocate for the opposite party stated that the position taken by the petitioner in the earlier proceeding was that the land in question formed a part of the non-agricultural holding and as such the application under Section 8 of the Land Reforms Act was not maintainable in law. The Petitioner cannot be permitted to take a different and inconsistent position in a subsequent proceeding contending that the holding was and continued to be a raiyati holding, He referred to the decision in Dwijendra Narayan v. Joges Chandra, AIR 1924 Cal 600 wherein it was observed 'that an estoppel is not confined to the judgment but extends to all facts involved in it as necessary steps or ground work: in other words, a judgment operates by way of estoppel as regards all the findings which are essential to sustain tie judgment, though not as regards findings which did not form the basis of the decision or were in conflict therewith.' In Hemanta Kumar v. Pra-sanna Kumar, AIR 1930 Cal 32 the Court observed that a party cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold, to approbate and reprobate to the detriment of his opponents and this principle applies when the second suit grows out of the judgment of the first. The principle that when one who without mistake induced by the opposite party, has taken a particular position deliberately in the course of litigation must act consistently with it was approved in Amritlal v. Alia Annapurnammer : AIR1959AP9 , as also in Official Receiver Kurnool v. Vale Pedda : AIR1968AP336 .
10. Mr. Manindra Nath Ghosh learned Advocate appearing for the petitioner submitted on the other hand that in the earlier proceeding, the Revenue Officer found on merits upon materials on record that the application under Section 8 of the Land Reforms Act was not maintainable as the holding involved was a non-agricultural land. Further, though there may be an estoppel against a party there can be no estoppel on Court or Tribunal to determine a controversy particularly when it involves jurisdiction of the Court or tribunal to adjudicate the matter before it, as a Court or Tribunal can have no jurisdiction by consent or on estoppel when the statute confers none, He referred to the decision Surajmull Nagoremull v. Triton Insurance Co. Ltd., 52 Ind App 126 = AIR 1925 PC 83 wherein it was laid down:
'No court can enforce as valid, that which competent enactments have declared shall not be valid, nor is obedience to such enactment a thing from which a Court can be dispensed by the consent of parties, or by a failure to plead or argue the point at the outset.'
11. The Supreme Court in Sales Tax Officer, Benaras v. Kanhaiya Lal : 1SCR1350 observed-
'Estoppel arises only when the plaintiff by his acts and conduct makes a representation to the defendant of a certain state of facts which is acted upon by the defendant to his detriment; it is only then that the plaintiff is estopped from setting up a different state of facts.'
The Court further observed that this position can be availed of where the representation is in regard to a position in law, and even so the Court will refuse to award relief to the plaintiff if it is inequitable for the Court to do so.
12. In Mahabir Singh v. Narain Tewari AIR 1931 All 490 (FB) it was observed by Sulaiman, Ag, C. J. that the principle of estoppel cannot be allowed to defeat the provisions of a statutory enactment which affects the jurisdiction of a Court, as a party cannot by its admission or previous conduct confer jurisdiction on a Court where none exists.
13. On a review of the decisions cited above it appears that
(a) Estoppel arises when a party by act and conduct makes a representation to theother party of certain state of facts which is acted upon by such party to his detriment.
(b) Estoppel may even be available when there is a representation by one party in regard to a position in law which is accepted and acted upon by the other to his detriment.
(c) When however the jurisdiction of a Court or tribunal by statute is dependent on the existence of a certain state of facts or position in law a representation by one party to the other about the existence of a certain state of facts or position in law by themselves will not confer jurisdiction on the Court or the tribunal to adjudicate upon the controversy involved.
(d) The Court or the tribunal in such circumstances will have to determine on materials before it whether it has the jurisdiction to determine the controversy and there can be no estoppel on Court or tribunal by conduct or act of parties. In course of such adjudication the parties will be required to produce evidence relevant to the question of jurisdiction whereon the Court or tribunal will decide if it has the jurisdiction to adjudicate the matters in controversy.
14. In the context of the aforesaid propositions it cannot be said that the petitioner is barred by the doctrine of estoppel to produce before the Court, as in the instant case, relevant evidence which may have a bearing on the question of its jurisdiction on the application for pre-emption. In the instant case, the Court can entertain and decide the application under Section 24 of the Act only if the tenancy is a non-agricultural one which as a jurisdictional fact will have to be decided on evidence to be adduced by the parties and no estoppel accordingly arises on such question of jurisdiction which has been created by the statute.
15. Coming now to the question of merits, it appears that the superior interest which Nagendra held under the Burdwan Raj was a ghatwali tenure which was a service tenure. There is no legal bar to the creation of a non-agricultural tenancy under such service tenure as the definition in Section 2(k) of the Estates Acquisition Act clearly indicates. Undoubtedly the jama under the landlord's interest, since acquired by Nagendra, was recorded as raiyati sthitiban and the said jama bore a rent of Rs. 4.50, Nagendra acquired 2/3rd of this interest as also further area out of the remaining l/3rd share. Even so as he did not acquire the interest in its entirety there could not be merger of the raiyati interest with landlord's interest. The pattah by Nagendra to Lakshmi Ext. 3 recited that on acquisition of 2/3rd interest Nagendra was in khas possession of his share in demarcated area while Lakshmi was in possession of his demarcated share. After surrender of about 4 cottahs of laud for the road and sale of about 4 cottahs and 13 chattaks of land to Nagendra both out of share, Lakshmi was in possession of the balance area of 15 cottahs at a jama of Rs. 1-3-4 in raiyati right under Nagendra. By the pattah Lakshmi was granted permanent mokarari right in respect of the said jama with full rights to make pucca constructions therein and also compound walls, well privy for residence or otherwise. The schedule of the land therein clearly described the boundary indicating that the said land was in possession of Lakshmi in raiyati jama which was upgraded to mokarari right. Accordingly the original raiyati jama, on sale of about 4 cottahs of land to Nagendra on January 17, 1938 and gift of another 4 cottahs both by Lakshmi ceased to exist and in place thereof Lakshmi was holding his balance 15 cottah of land under separate jama upgraded to mokarari right as aforesaid. Out of the land of the said dag in his khas possession, Nagendra by lease dated January 17, 1938 Ext. 4 settled in permanent right with Baneswar 12 decimals of demarcated land for non-agricultural purpose, namely, for building residential house at a jama of fifteen annas whereby a non-agricultural tenancy in respect thereof was created. This leasehold interest was subsequently sold to Mihirbala and Bibhabati each of them held undivided moiety share. The jama continued to be in existence when the impugned sale of her undivided half share was sold to the petitioner though it was recited in the document of the petitioner that Mihirbala was in possession of the southern half and Bibhabati in possession of the northern half. Such amicable possession without partition and division of the jama did not affect their respective status as cosharers. Accordingly Mihirbala, as cosharer, was entitled to pre-empt the share of her other cosharer under Section 24 of the Act. The courts below were accordingly acted rightly in allowing the application for pre-emption.
16. The Rule in the circumstances fails and is discharged. There will, however, be no order for costs in the circumstances.
H.N. Sen, J.
17. I agree.