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Jyoti Prokash Chatterjee and anr. Vs. Bagala Kanta Chodhury and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in70Ind.Cas.822
AppellantJyoti Prokash Chatterjee and anr.
RespondentBagala Kanta Chodhury and ors.
Cases Referred and Pratap Chandra Jana v. Secretary of State
Excerpt:
jurisdiction, kinds and scope of - jurisdiction over subject-matter, want of, at one stage of proceedings, effect of--consent of parties--waiver--bengal tenancy act (viii of 1885), section 104j--entry in record of rights made without jurisdiction--presumption of correctness. - .....character, that is, must be held by a sonthal chakdar, at the moment when in exercise of the power rent is settled and reduced. it is clearly not sufficient that the area should have been within the scope of the authority of the settlement officer when he was first invested with the power. the crucial juncture is the point of time when the power comes to be exercised. the appellants have contended, however, that this view is not supported by principle and that if jurisdiction has once become vested in a tribunal, it cannot be divested by subsequent events. we are of opinion that this, contention is too broadly formulated.8. let us assume that, m cases of local jurisdiction, the principle applies that the state of things existing at the time of the institution of the suit is.....
Judgment:

1. This is an appeal by the defendants in a suit for recovery of arrears of rent on the basis of a kabuliyat executed by their predecessor on the 28th February 1913. The Trial Court held that the kabuliyat was not operative and that rent was recoverable only at the rate mentioned in a Settlement Record prepared under Section 112 of the Bengal Tenancy Act. The Court of Appeal below has held that the kabuliyat was operative inasmuch as the Settlement Record had been prepared without jurisdiction. The substantial question in controversy is, which of these conflicting views is correct.

2. Section 112 of the Bengal Tenancy Act provides as follows:

(1) The Local Government, with the previous sanction of the Governor-General in Council, may, on being satisfied that the exercise of the powers hereinafter mentioned is necessary in the interests of public order or of the local welfare, or that any landlord is demanding rents which have been illegally enhanced above those entered as payable in a Record of Rights prepared under this Chapter, invest a Revenue Officer with the following powers or either of them, namely:

(a) power to settle all rents;

(b) power, when settling rents, to reduce rents if, in the opinion of the officer, the maintenance of existing rents would on, any ground, whether specified in this Act or not, be unfair or inequitable.

(2) The powers given under this section may be made exercisable within a specified area either generally or with reference to specified cases or classes of cases.

(2a) A settlement of rents under this section shall be made in the manner provided by Sections 104 to 104-J (both inclusive).

(3) When the Local Government takes any action under this section, the Settlement Record prepared by the Revenue Officer shall not take effect until it has been finally confirmed by the Governor-General in Council; and the revision, by direction of the Board of Revenue under Sub-section (2) of Section 104G, of a Record of Rights,...prepared under this section, shall be subject to a like confirmation by the Governor-General in Council.

3. In exercise of the powers conferral by this section, the following Notification Was published in the Calcutta Gazette on the 28th August 1912 (part I, p. 1389).

4. 'No. 2416 L.R.--The 27th August 1912--In exercise of the powers conferred upon him by Section 112 of the Bengal Tenancy Act, 1885, (Act VIII of 1885), and with the previous sanction of the Governor-General in Council, the Governor in Council is pleased to invest Mr. P.M. Robertson, Diputy Collector and Settlement Officer in District Birbhum, acting under Chapter X of the said Act, with the following powers.

(a) power to settle rents.

(b)1 power, when settling rents, to reduce rents, if in the opinion of the officer the maintenance of existing rents would on any ground, whether specified in the said Act or not, be unfair or inequitable.

5. These powers will be exerciseable in respect of:

(a) All areas held by Sonthals headman (Chakdars) and

(b) All holdings of Sonthal. Bhuias (or Ghatwals), Bals, Baurias and Dhangars, in the villages in District Birbhum for which a survey has been made and Record of Rights prepared under the Notifications specified below:

(1) No. 4161 L.R. dated the 23rd December 1909, published at page 1963, Part I of the Calcutta Gazette of the 29th idem.

(2) No. 370 T.R. dated the 10th May 1910, published at page 624, Part I, of the Calcutta Gazette of the 18th idem.

(3) No. 1926 T.R. dated the 7th October 1910, published at page 1395, Part I, of the Calcutta Gazette of the 12th idem.

6. At the date of this Notification, the disputed land was in the occupation of the Sonthal Chakdar by name Mangal Majhi. On the 13th November 1912 the tenancy was brought to sale in execution of a decree for arrears of rent obtained by the landlords against Mangal Majhi. Nogendra Bala Debi, since dead, and now represented by her sons, the defendants became the purchaser at the execution sale. On the 28th February 1913 she executed a kabuliyat which fixed the rent at Rs. 600 payable for the entire tenure to the whole body of landlords. On the 10th March 1914 a draft Settlement Rent-Roll was published under Section 104-K read with Section 112. The rent in respect of this tenancy was fixed at a progressive rate, which would make the rent payable at Rs. 204-15-0 annually for the years in suit. On the 9th April 1914 the landlords objected to the entry under Section 104-E. Their objection was overruled on the 6th May 1914. The Settlement Rent-Roll was thereafter republished on the 17th November 1914 and was finally confirmed by the Government on the nth December 1914. On the 30th April 1918 the landlords commenced this action, claiming their proportionate share of the rent at the rate mentioned in the contract. The defendants pleaded that they were liable to pay rent only at the rate mentioned in the Settlement Rent-Roll. The two questions which thus emerged for consideration, were, first, was the settlement of rent made with jurisdiction and, secondly, was the entry in the Record of Rights conclusive evidence of the rent payable under Section 104-J. The Courts below have expressed divergent opinions upon these points.

7. As regards the first question, it is plain that the power to settle all rents and, when settling rents, to reduce rents, was exercisable by the Settlement Officer only in respect of all areas held by Sonthal headmen (Chakdars), that is, by Sonthal headr men or Sonthal Chakdars. Consequently, any particular area, which is affected by the exercise of this power, must possess the prescribed character, that is, must be held by a Sonthal Chakdar, at the moment when in exercise of the power rent is settled and reduced. It is clearly not sufficient that the area should have been within the scope of the authority of the Settlement Officer when he was first invested with the power. The crucial juncture is the point of time when the power comes to be exercised. The appellants have contended, however, that this view is not supported by principle and that if jurisdiction has once become vested in a Tribunal, it cannot be divested by subsequent events. We are of opinion that this, contention is too broadly formulated.

8. Let us assume that, m cases of local jurisdiction, the principle applies that the state of things existing at the time of the institution of the suit is sufficient to determine the jurisdiction, on the theory that the progress of a suit once validly commenced in any Court is not affected by change of residence or country by the defendant, in this connection the judgment of Blackburn J., in Schibsby v. Westenholz (1871) 6 Q.B. 155 at p. 161 : 40 L.J.Q.B. 73 : 24 L.T. 93 : 19 W.R. 587 and of Linley, M.R. in Pemberton v. Hughes (1899) 1 Ch. 781 at p. 792 : 68 L.J. Ch. 281 : 80 L.T. 369 : 47 W.R. 354 : 15 T.L.R. 211 may be contrasted with the dictum of Lord Selborne in Gurdyal Singh v. Raja of Faridkot 22 C. 222 (P.C.) 21 I.A. 171 : 4 M.L.J. 267 : 6 Sar. P.C.J. 503 : 112 P.R. 1894 : 11 Ind. Dec. (N.S.) 149 : (1894) App. Cas. 670 : 11 R. 340. But it is well settled that this doctrine has no application where the question is one of jurisdiction over subject-matter; such jurisdiction must exist through-, out the proceedings and in the adoption of, this view full recognition is accorded to the theory that there is exercise of jurisdiction all through the different stages of trial, we may usefully recall here that, as explained by the Full Bench in the case of Hridyanath Roy v. Ram Chandra Barua Sarma 58 Ind. Cas. 806 : 48 C. 138 : 31 C.L.J. 482 : 24 C.W.N. 723 (F.B.), jurisdiction may be denned to be the power of a Court to hear and determine a cause, to adjudicate or exercise any judicial power in relation to it; in other words, by jurisdiction is meant the authority which a Court has to decide matter that are litigated before it or to take cognizance of matters presented in a formal way for its decision. This jurisdiction of the Court may be qualified or restricted by a variety of circumstances. Thus the jurisdiction may have to be considered with reference to place, value, and nature of the subject-matter. The power of the Tribunal may be exercised within defined territorial limits. Its cognizance may be restricted to subject-matters of prescribed value. It may be competent to deal with controversies of a specified character, for instance, testamentary or matrimonial causes, acquisition of lands for public purposes, Record of Rights as between the landlord and tenants. This classification into territorial jurisdiction, pecuniary jurisdiction and jurisdiction of the subject-matter is of a fundamental character. Jurisdiction has consequently reference to the power of the Court over the parties, over the subject-matter, over the res or property in contest and to the authority of the Court to render the judgment or decree which it assumes to make, The essentials of jurisdiction in each of these aspects was lucidly stated by Miller, J., in delivering the opinion of the Supreme Court of the United States in Cooper v. Reynolds' Lessee (1869) 10 Wallace 308 : 19 Law. Ed. 931.

9. By jurisdiction over the subject-matter is meant the nature of the cause of action and of the relief sought; and this is conferred by the Severeign Authority which organizes the Court, and is to be sought far in the general nature of its powers, or in authority specially conferred.

Jurisdiction of the person is obtained by the service of process, or by the voluntary appearance of the party in the progress of the cause.

Jurisdiction of the res is obtained by a seizure under process of the Court, whereby it is held to abide such order as the Court may make concerning it.

The power to render the decree or judgment which the Court may undertake to make in the particular cause, depends upon the nature and extent of the authority vested in it by law in regard to the subject-matter of the cause.

10. For the validity of a judgment in a suit, this jurisdiction over subject-matter must exist throughout the proceedings as well at the time of its institution as at the time of its disposal.

11. An illustration is furnished by the decision in Vajechand Ramaji v. Nandram Duluram 31 B. 545 : 9 Bom. L.R. 1028 there, a suit for the possession of a house was instituted in the Court of a Mamlatdar who had jurisdiction, at the date of the commencement of the litigation to entertain the suit under the Mamlatdar Courts Act, 1876. After the trial had closed and before judgment could be delivered, the Act was replaced by the Mamlatdar Courts Act, 1906, which restricted the jurisdiction of the Mamlatdar to lands or premises used for agriculture. The Mamlatdar, notwithstanding this, delivered judgment. It was ruled that the judgment was without jurisdiction, as the Mamlatdar had lost jurisdiction before it was pronounced. Reliance was placed in support of this, conclusion upon the decision in R. v. Denton (1852) 18 Q.B. 761 : Dears C.C. 3 : 21 L.J.M.C. 207 : 17 Jur. 453 : 118 E.R. 287. We are not unmindful that the construction placed on the Mamlatdar Courts Act, 1906, by the decision of Vajechand Ramji v. Nandram Daluram 31 B. 545 : 9 Bom. L.R. 1028 was not followed in Nana v. Sheku 10 Bom. L.R. 330J 32 B. 337 where Jenkins, C.J., declined to attribute to the new Statute a retrospective operation. That, however, does not touch the preheat, question; on the other hand, the decision emphasises the view that if the Court were taken to have lost the jurisdiction during the pendency of the proceeding, the Court could not pronounce a decision therein. Such a result is by no means unknown to law; for the decision in R. v. Denton (1852) 18 Q.B. 761 : Dears C.C. 3 : 21 L.J.M.C. 207 : 17 Jur. 453 : 118 E.R. 287 belongs to the same catagory as the cases of Miller's case (1764) 1 W.B 1. 451 : 96 E.R. 259; R. v. London Justices (1764) 3 Burr. 1456 : 97 E.R. 924; Charrington v. Meatheringam (1837) 2 M. & W. 228 : 5 Dowl. P.C. 464 : 6 L.J. (N.S.) Ex. 86 : I Jur. 104 : 150 E.R. 740; R v. Mawgan (1838) 8 A. & E. 496 : 3 N. & P. 502 : 7 L.J.M.C. 98 : 112 E.R. 927. A similar view was adopted by the Supreme Court of the United States in Yeaton v. U.S. (1809) 5 Cranch 278 at p. 281 : 3 Law. Ed. 101 which was followed in Hunt v. Jennings (1839) 5 Blackford (Ind.) 1955 33 Am. Dec 465 as authority for the proposition that when the Court loses its jurisdiction during the pendency of a trial, it can no longer proceed to judgment. The same view was maintained after elaborate discussion by the Supreme Court of New York in Butter v. Palmer (1842) 1 Hill 324 and was re-affirmed in Stephenson v. Doe (1847) 8 Blackford (Ind.) 508 : 46 Am.Dec. 489. The principle enunciated by the Supreme Court of the United States in Yeaton v. U.S. (1809) 5 Cranch 278 at p. 281 : 3 Law. Ed. 101 has since been repeatedly applied in that Court; Hamilton Bank v. Dudly (1829) 2 Peter 492 : 7 Law. Ed. 496; Gates v. Osborne (1869) 9 Wallace 567 : 19 Law. Ed. 748; Baltimore Ry. Co. v. Grant (1878) 98 U.S. XXV; 231 : 8 Otto 393; Henrix v. U.S. (1911) 219 U.S. 79; Hallowell v. Commons (1916) 239 U.S. 506. We see no reason to doubt the correctness of the view that a Court may lose its jurisdiction during the pendency of a proceeding, and that, in such an event, if it proceeds to pronounce judgment, such judgment must be regarded as void because made without jurisdiction, Wells on Jurisdiction, Sections 73-81; Works on Jurisdiction, Section 24; Brown on Jurisdiction, Section 25.

12. Conversely, it has been maintained that if an action is commenced in a Court without jurisdiction over the subject-matter, the proceeding is void, nor will the fact that subsequently jurisdiction was by law conferred upon the Court over that class of cases cure the error; in other words, as stated in Mora v. Kuzac (1859) 21 Louisiana 754 the institution of a suit in a Court without jurisdiction is null and the investiture of that Court with jurisdiction at a subsequent period has no effect to cure the nullity; see also Hart v. Waitt(1862) 3 Albn. (Mass) 532.

13. In the case before us, the Settlement Officer had jurisdiction, when he was appointed to exercise his power, to reduce the rent of the disputed tenancy which at that time fell within the class of areas held by Sonthal Chakdars. Before he could exercise his jurisdiction, the tenancy had passed into the hands of a non-Sonthal. Consequently, the Settlement Officer lost his jurisdiction over the area and could no longer exercise the power conferred on him. The proceedings taken by him subsequent thereto were without jurisdiction and could not affect the subject-matter of the litigation.

14. It is also well settled that jurisdiction of the subject-matter is given only by law and cannot be conferred by consent; it follows as a corollary that the objection that a Court is not given such jurisdiction by law cannot be waived by the parties Lawrence v. Wilcock (1880) 11 A. & E. 941 at p. 942 : 3 P. & D. 536 : 8 D.P.C. 681 : 8 L.J.Q.B. 284 : 113 E.R. 672 Ex parte Bischoffshein In re Aylmer (1888) 20 Q.B.D. 258 : 57 L.J.Q.B. 168 : 36 W.R. 231; R. v. Judge of the County Court of Shopshire (1888) 20 Q.B.D. 242. There is thus no escape from the conclusion that the case, before us attracts the operation of the fundamental rule that, if a Court authorised by a Statute to exercise jurisdiction in a particular class of cases only, nevertheless undertakes to exercise the power and jurisdiction conferred in a case to which the Statute has no application, the Court acts without jurisdiction, so that its judgment is a nullity and will be so treated when it comes in question either directly or collaterally. An example is furnished by the decision of the Supreme Court of the United States in Hickey v. Stewart (1845) 3 Howard 750 : 11 Law. Ed. 814 where a decree by a State Court of Chancery, establishing the validity of a Spanish grant over which no power had ever been conferred upon that Court was held void and its exercise of jurisdiction declared to be a mere usurpation of judicial power; see also Rhode Island v. Massachusetts (1838) is Peter 657 : 9 Law Ed. 1223, Wilcox v. Jackson (1839) 13 Peter 498 : 10 Law. Ed. 264; Thompson v. Whitman (1873) 18 Wallace 457 : 85 U.S. XXI 897; U.S. v. Clarke (1873) 20 Wallace 92 : 87 U.S. XXII 320; Howe Insurance Co. v. Morse (1874) 20 Wallace 445 : 87 U.S. XXII 365, Williamson v. Berry (1850) 8 Howard 495 : 12 Law. Ed. 1170; In re Sawyer (1887) 124 U.S. 200 at p. 220 : 31 Law. Ed. 402. We hold accordingly that the proceedings of the Settlement Officer which resulted in the reduction of rent were without jurisdiction.

15. As regards the second question, it may be conceded that Section 104J of the Bengal Tenancy Act raises an irrebutable presumption in favour of the entry in the Record of Rights; Ambica Charan Chakravarti v. Joy Chandra Ghosh 4 Ind. Cas. 470 : 13 C.W.N. 210; Prasanna Kumar Adhikary v. Rachimuddin Howladar 15 Ind. Cas. 327 : 17 C.W.N. 153. Baikuntha Nath Ghose v. Sodananda Mohapatra 46 Ind. Cas. 257 : 23 C.W.N. 516; Rajani Kanta Ghose v. Secretary of State for India 51 Ind. Cas. 226 : 46 C. 90 : 23 C.W.N. 649 : 45 I.A. 190 (P.C.), Parafulla Narain v. Palku Mohammad 53 Ind. Cas. 122 : 23 C.W.N. 860 and Pratap Chandra Jana v. Secretary of State for India in Council 53 Ind. 67 Ind. Cas. 375 : 35 C.L.J. 304 : (1922) A.I.R. (C.) 191 : 49 C. 1026 This, however, is of no avail to the appellants, for no conclusive effect can be attributed to an entry made as the result of proceeding carried on without jurisdiction.,

16. The result is, that the contract between, the parties cannot be deemed to have been superseded by the Record of Rights and is still operative between them. The decree of the District Judge must accordingly be affirmed and this appeal dismissed with costs.


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