1. The facts which are not in dispute in this appeal are these : The respondent purchased a portion of a raiyati holding from one Govinda Chandra Modak on 27th March 1934, by a registered kobala (Ex. 1), In this kobala the holding was described as an occupancy holding. After this purchase, notice was given to the appellant landlord under the provisions of Section 26C (3), Bengal Tenancy Act. On 22nd August 1934, the appellant landlord made an application under Section 26F, Ben. Ten. Act, for pre-emption of the portion of the raiyati holding purchased by the respondent. On 4th February 1935, the record of rights of the village in which this holding is situated was finally published. In this record the holding was recorded as an occupancy holding. The application of the appellant landlord under Section 26F, Ben. Ten, Act, was put up for hearing on 1st January 1935. In April 1935, Govinda Chandra Modak filed a suit under Section 106, Ben. Ten. Act, to correct the record of rights by recording him as a mokorari raiyat. To this suit both the respondent and the appellant were parties. The application of the landlord for pre-emption under Section 26F. Ben. Ten. Act, was allowed on 26th November 1935. On 27th March 1936, the suit instituted by Govinda Chandra Modak under Section 106, Ben. Ten. Act, was decreed. An appeal against this decree was dismissed by the first appellate Court on 20th August 1936. On 25th March 1937, the respondent raised the present suit in the second Court of the Munsif at Katwa for declaration that the land purchased by her on 27th March 1934 is part of a raiyati holding at fixed rent, that the order for pre-emption under Section 26F, Ben. Ten. Act, was void and without jurisdiction and for confirmation of her possession of the land purchased by her. The second appeal to this Court in the suit under Section 106, Ben. Ten. Act filed by Govinda Chandra Modak was dismissed on 26th April 1937. The present suit was dismissed by the trial Court. The plaintiff appealed to the lower appellate Court. The learned District Judge who heard the appeal allowed it and decreed the plaintiff's suit. The landlord defendant preferred a second appeal to this Court. This appeal was heard by my learned brother Sen J. The learned Judge has dismissed the appeal. Hence this appeal under Clause 15, Letters Patent, by the landlord defendant. Three points were urged by Mr. Ghosh on behalf of the appellants in this appeal: (1) That the order under Section 26F, Ben. Ten. Act, prevents the Court from trying the present suit; (2) that the plaintiff is estopped under Section 115, Evidence Act, from asserting in the present suit that the land which he has purchased is part of a raiyati holding at fixed rent and (3) that the suit is barred by limitation.
2. First point: Section 40, Evidence Act, is in these terms:
The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial.
3. Mr. Ghosh conceded that the order for preemption was not a bar to the trial of the present suit under Section 11, Civil P.C. His contention, however, is that the present suit is barred by the general principles of law, viz.,that there should bean end of litigation and that no one should be twice vexed for the same cause. The issue in the present suit is whether the defendant landlord has the right to pre-empt the lands purchased by the plaintiff. If the land which the plaintiff has purchased is part of a rayoti holding at fixed rent the defendant landlord has no right to pre-empt. If not, the defendant landlord is entitled to pre-empt. The question as to whether the holding of which the disputed land is a part is an occupancy holding or a rayoti holding at fixed rent was admittedly not raised or decided in the proceedings under Section 26F, Ben. Ten, Act. The contention of Mr. Ghosh, however, is that although Expln. 4 of Section 11, Civil P.C., does not apply to the proceeding under Section 26F, Ben. Ten. Act, the principle underlying that explanation ought to be applied to that proceeding. Section 44, Evidence Act, provides:
Any party to a suit or other proceeding may show that any judgment, order or decree, which is relevant under Sections 40, 41 or 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.
4. The competency of a Court means its jurisdiction to hear and determine a cause. In Sukh Lal v. Tara Chand Ta ('05) 33 Cal. 68 at pp. 244 and 245, Rampini and Mookerjee JJ. in their order of reference to the Full Bench said:
Jurisdiction may be defined to be the power of a Court to hear and determine a cause, to adjudicate or exercise any judicial power in relation to it. Such jurisdiction naturally divides itself under three broad heads, namely (1) with reference to the subject-matter, (2) the parties and (3) the particular question which calls for decision....As regards jurisdiction in relation to the particular question which a Court assumes jurisdiction to decide, it can pass judgment only upon a matter which has been submitted to its determination and which, under the statute, it has authority to decide; for instance, if it has authority to decide a question of possession only, it cannot decide a question of title.
The absence of a condition necessary to found the jurisdiction to make an order, or give a decision, deprives the order or decision of any conclusive effect; but it is otherwise where the order is good on its face and the Court adjudicating has jurisdiction to determine the existence or not of the condition, and the party denying its existence has neglected his opportunity of raising the objection at the hearing....(Halsbury's Laws of England, Hailsham Edition, Vol. 13, at p. 439.)
5. An examination of the provisions of Sections 26C (2), (3) and 26F (5), (6)(i)(ii)(iii) and (7), Ben. Ten. Act, would go to show that in a proceeding under Section 26F, Ben. Ten. Act, the purchaser is not entitled to raise the question as to whether the holding is an occupancy holding, or a raiyati holding at fixed rent, because the foundation of the proceedings under Section 26F, Ben. Ten, Act, is the admission of the purchaser in his deed of purchase that the holding is an occupancy holding. The purchaser in a proceeding under Section 26F, Ben. Ten. Act, is not entitled to say that he made the admission under a mistake, or that he was ignorant about the real nature of the holding at the time of his purchase and that in fact the holding purchased by him is a mourashi mokorari holding. Such questions, therefore, cannot be submitted for determination and cannot be determined in a proceeding under Section 26F, Ben. Ten. Act. It cannot be said, therefore, that the plaintiff might and ought to have raised the issues in the present suit in the proceeding under Section 26F. Assuming, therefore, that the rule of constructive res judicata embodied in Expln. 4 to Section 11, Civil P.C., can be extended to the general principles of law, viz., the finality of litigation on which Mr. Ghosh relies, the order in the proceeding under Section 26F, in the present case does not operate as res judicata to the present suit. The holding of which the disputed land is a part is not an occupancy holding but is a raiyati holding at fixed rent. The condition precedent to the assumption of jurisdiction for making the order under Section 26F, Ben. Ten. Act, was absent at the time when the proceeding under that section was started and the order thereunder was made. If the defendant wants to rely on the order under Section 26F to show that it operates as res judicata on the footing that it involves constructively the final determination of the issues raised in the present suit he cannot do so because the determination of the issues on that order must then be taken to have been made by a Court not competent to try and determine the issues raised in the present suit. In other words, the order being void and inoperative, cannot operate as res judicata.
6. Second point: The defendant landlord raised the plea of estoppel under Section 115, Evidence Act, in his written statement. An issue was framed on that point by the trial Court, but at the time of the hearing of the suit this issue was not pressed by the defendant. The defendant therefore is not entitled to raise this question now.
7. Third point : In view of our finding on the first point the suit is not barred by limitation. The appeal accordingly fails and is dismissed with costs.