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Shyama Churn Ghosh Vs. Mahomed Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in3Ind.Cas.466
AppellantShyama Churn Ghosh
RespondentMahomed Ali and ors.
Cases ReferredJadu Jhala v. Gour Mohan Jhala
Excerpt:
specific relief act (i of 1877), section 9 - land cultivated by adhiars--plaintiff not in possession--hence no dispossession--error in law--high court's power of interference--civil procedure voile, (act v of 1908), section 115--no objection to court's jurisdiction--no authority for saying it has jurisdiction--adhiars are tenants--possession through tenants. - .....then obtained a rule from this court to show cause why the dismissal of the claim for the lands in possession of the tenants should not beset aside.2. the petitioner relies on bindhubashini v. jahnavi 1 ind. cas. 150 : 13 c.w.n. 303. it seems to us that that case is in direct conflict with sonaton shome v. shiekh helim 6 c.w.n. 616. an attempt has been made to distinguish the cases, but, in our opinion, the propositions they lay down are not reconcilable.3. if we were constrained to choose between them, we should certainly prefer to follow bindhubashini v. jahnavi 1 ind. cas. 150 : 13 c.w.n. 303. even if the plaintiff in this case is not in possession of the land he is in possession of the benefits to arise out of the land and we do not see why, if he has been deprived of the.....
Judgment:

1. The plaintiff in this case sued for recovery of certain land under Section 9 of the Specific Relief Act from which the defendants had, as he said, dispossessed him. The Munsif found that most of the land was in the possession of his tenants and that, therefore, he was not entitled to sue under Section 9. Accordingly he dismissed the suit for that land following Sonaton Shome v. Sheikh Helim 6 C.W.N. 616. The plaintiff then obtained a Rule from this Court to show cause why the dismissal of the claim for the lands in possession of the tenants should not beset aside.

2. The petitioner relies on Bindhubashini v. Jahnavi 1 Ind. Cas. 150 : 13 C.W.N. 303. It seems to us that that case is in direct conflict with Sonaton Shome v. Shiekh Helim 6 C.W.N. 616. An attempt has been made to distinguish the cases, but, in our opinion, the propositions they lay down are not reconcilable.

3. If we were constrained to choose between them, we should certainly prefer to follow Bindhubashini v. Jahnavi 1 Ind. Cas. 150 : 13 C.W.N. 303. Even if the plaintiff in this case is not in possession of the land he is in possession of the benefits to arise out of the land and we do not see why, if he has been deprived of the possession of these benefits, he should not be entitled to obtain recovery.

4. It is argued on behalf of the petitioner that the adhiars, in whose possession the land is, are mere labourers or at any rate that their interest is so precarious that the plaintiff may be regarded as being in direct possession. But in this matter we are bound by the Munsif's findings. He says: ' The adhiars are evidently the bargadars or bhagchasias of other districts and as such they seem to be tenants. * * * * It seems to me that they apparently have the right to hold the land as long as the crops grown by them are not reaped, gathered and divided. * * * I think that adhiars are tenants.'

5. It is also argued that this plea was raised at too late a stage, but we have no doubt that the decision that the adhiars are tenants is right and that it cannot be revised on the ground that the point might have been taken earlier.

6. But we think that we have no power to interfere with the decision. The Munsif had jurisdiction to deal with the case. He dismissed it so far as it affected the land cultivated by the adhiars, because he held that the plaintiff was not in possession and so was not dispossessed within the meaning of Section 9 of the Specific Relief Act. In this view we are inclined to think that he was wrong, but the error, if it be an error, was not one of jurisdiction but of law. To dismiss a suit instead of decreeing it is not a refusal of jurisdiction. The jurisdiction is exercised whether the suit is decided in one way or in the other. The decision in Amir Hassan Khan v. Sheo Bakhsh Singh 11 C. 6 : 11 I.A. 237 is a clear authority that a decision, which a Court has jurisdiction to pass, cannot be revised by this Court because it is wrong on a point of law. We entirely agree with the observations of Maclean, C. J., in Raghu Nath Gujrati v. Rai Chatraput Singh 1 C.W.N. 633 as to the inexpediency of whittling away the effect of decisions, which are in themselves clear and precise; and we feel constrained to hold on the authority cited, that we have no power to interfere.

7. It is true that similar cases have often been before the Court, and that the Court has not refused to deal with them. But we think it would be quite unsafe to hold that the fact that the Court deals with a matter when no objection is raised, is any authority for holding that it has jurisdiction. When the point was raised in Bindhubashini v. Jahnavi 1 Ind. Cas. 150 : 13 C.W.N. 303 the learned Judges carefully guarded themselves from saying that they had jurisdiction. And in Jadu Jhala v. Gour Mohan Jhala 19 C. 544; O' Kinealy, J. held that the Munsif's order was not subject to revision. On the other hand it has never been held that such a decision is subject to revision and, accordingly, we feel bound to hold that we cannot interfere and to discharge the rule. We make no order as to costs.


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