Tottenham and Ghose, JJ.
1. This was a suit to recover possession of a jala with wasilat. It was filed in the Court of the Subordinate Judge of Rajshahye, being valued at Rs. 1,260. The plaintiff claimed this jala as appertaining to his putni taluk Madhupore, and alleged that the name of the jala was Daur Patherghata.
2. The defendants alleged that this jala did not belong to the plaintiff's putni, but belonged to a property called Imamgunj, belonging to the defendant No. 2, the Nawab Nazim of Bengal. They disputed the value of the property in suit, alleging that it was below Rs. 1,000, and therefore contended that the suit was cognizable by the Munsif's Court and not by the Court of the Subordinate Judge.
3. The Subordinate Judge was of opinion that the property was worth more than Rs. 1,000, and he proceeded to try the case on the merits.
4. Before the issues were framed it seems that the examination of the parties or their pleaders took place, and the plaintiff substituted for his original allegation the statement that the jala was a part of Chuck Askaran, which also belonged, as he stated, to his putni. But from the plaint it appears that he also set up a case of title by adverse possession.
5. On the merits the Subordinate Judge held that the jala did in fact belong to the plaintiff, though not appertaining to his putni of Madhupore. He held that it belonged to Chuck Askaran, of which the plaintiff was in possession, and also that the plaintiff had held adverse possession for more than twelve years.
6. The defendants appealed to the District Judge, and repeated the objection that the suit had been over-valued, and that therefore the first Court had no jurisdiction, with reference to Section 15 of the Code of Civil Procedure. The lower Appellate Court was of opinion that the suit had in fact been over-valued, and that the value could not exceed Rs. 675; but it held that the effect of this would be that the plaintiff could recover costs only on the scale of the Munsif's Court. Upon the merits the District Judge hold that the plaintiff had established his title by adverse possession, and had also established his title by reason of the jala belonging to Chuck Askaran; and the decree of the first Court was affirmed.
7. In this second appeal it has been contended by the learned Advocate-General for the defendants, appellants, that the change of case adopted by the plaintiff vitiates his suit; and that he had no right to a decree upon a state of facts not stated in the plaint, namely upon the allegation that the jala belongs to Chuck Askaran within his putni. He further contended that the Subordinate Judge was precluded by the provisions of Section 15 of the Code of Civil Procedure from trying the suit at all; that he had no jurisdiction; and that, consequently, his decree must be set aside. It is contended, lastly, that the finding of the lower Court of title by adverse possession is an improper finding upon the evidence.
8. As to this last point, we think that both the Courts below distinctly found upon the evidence that the plaintiff had established his title by adverse possession. The finding is unequivocally expressed in both judgments: and we think that no ground for a second appeal can be raised upon that finding.
9. As to the alleged change in the plaintiff's case, we think that that does not constitute any real objection to the decree obtained by the plaintiff. The change, if there was any, was effected before the issues were laid down; and the issues are in all cases framed not only upon the pleadings, but also upon the examination of parties and their pleaders. The fact that the jala has been found not to belong to the plaintiff's putni is, we think, no reason why he should not get a decree, because he has proved his title, though not in the way first set out in his allegations, namely, by satisfying the Courts below that the jala belonged to another property of his, and that his possession has been adverse to the defendants for more than twelve years. We do not think that the Judge below was right in saying that the fact that the jala belonged to Chuck Askaran is sufficient reason for giving the decree; but the finding of title by adverse possession is, we think, amply sufficient.
10. The only other question is as to the jurisdiction of the first Court to try the case. No doubt Section 15 of the Code of Civil Procedure provides that 'every suit shall be instituted in the Court of the lowest grade competent to try it.' But this is an objection which was not taken in the petition of appeal to this Court. The District Judge only allowed this defect to operate as against the amount of costs to be obtained by the plaintiff; and against that ruling of the lower Court, no objection was taken until the learned Advocate-General raised it in his argument. We think, however, there is nothing in Section 15 which bars a Subordinate Judge from trying a suit below Rs. 1,000 in value. There is no doubt that a Subordinate Judge is competent to try all suits of a civil nature the trial of which is not barred by some special statute-vide Section 19 of the Civil Courts Act.
11. The learned Advocate-General called our attention to a case decided by the Privy Council, Ledgard v. Bull L.R. 13 I.A. 134, but that was a case which had been instituted in a Court not competent to entertain it. It was afterwards, by consent of parties, transferred to the proper Court, and then tried. The defendant, however, had, from the first and throughout, objected that the suit had been filed in the wrong Court and could not be tried. The Privy Council held that the defendant's contention was correct, and that the transfer to a competent Court of a suit instituted in a Court not competent to try it did not cure the defect, and the suit was dismissed by their Lordships. That case is clearly distinguishable from the present one. That was a suit brought under a special Act which excluded the jurisdiction of every Court but that of a District Judge. It was filed in the Court of the Subordinate Judge. It was filed, therefore, in a Court not competent to try it. The present suit was filed in a Court of the lowest grade competent to try it.
12. We think that the worst that can be said of the plaintiff's mistake in this respect is, that it was an irregularity coming within the scope of Section 578. But the words of Section 578, 'not affecting the jurisdiction of the Court,' we construe, as meaning, not affecting the competency of the Court to try. It appears to us, therefore, that the error in instituting the suit in the Subordinate Judge's Court rather than in that of the Munsif's, is not an error which affects the jurisdiction. Had the converse been the case, that is, if a case cognizable only by a Subordinate Judge had been instituted in the Court of a Munsif, that would have been a case of want of jurisdiction. As it is, however, we think that there is nothing in the objection raised by the learned Advocate-General.
13. The appeal is therefore dismissed with costs.