1. This appeal is by the plaintiff in a suit: for recovery of possession of the lands described in the schedule to the plaint on declaration of the plaintiff's title thereto. The lands are situate in Mouza Sarishpur and are claimed as appertaining to-separate account No. 30, Sarat Chandra Dutta and others, which was opened out of Taluk No. 31186/2 Kurpan Raza Dassan. This separate account is, alleged to have been opened in 1873 under the provisions of Section 11 of Act 11 of 1859 for specific lands in the mouza. This separate account was sold for arrears of revenue on 23th September 1934 and the plaintiff purchased the same at that sale. The sale was confirmed on 24th November 1934, and symbolic possession was delivered to the plaintiff on 18th December 1934. Thereafter the plaintiff failed to get actual possession on account of the opposition by the defendants and hence the present suit was instituted on 21st December 1935.
2. Six sets of written statements were filed by the different defendants. The defence case is that the. disputed lands appertain to the residuary chawk of. Thak No. 1317 of Mouza Sarishpur which again, appertains to six different taluks, namely, Taluk No. 1 Adam Raza Dassan, Taluk No. 1 Adam Raza Hal-abadi, Taluk No.2 Kurpan Raza Dassan, Taluk No. 2 Kurpan Reza Hal-abadi, Taluk No. 3 Alam Raza Dassan, Taluk No. 4 Arsadur Raza Dassan. Their further case is that Taluk No. 1 Dasan and Taluk No. 2 Halabadi were sold for arrears of revenue due thereon in 1907 and 1911 respectively and were purchased at those sales by the predecessor in interest of defendants 18 to 25. Thereafter these defendants 18 to 25 instituted a title suit (T.S. No. 426/14) in the Subordinate Judge's Court at Sylhet against all the owners of all the six taluks including the owners of the separate account No. 30 and obtained a decree in respect of their share. The present plaintiff being a cosharer in some of the taluks at that time was also made a party defendant in that suit in that capacity. Thereafter those defendants instituted a suit for partition, being Suit No. 112 of 1921, and obtained a decree in that suit also. In this partition suit also all the owners of all the six taluks including the owners of the separate account No. 30 and including the present plaintiff as a cosharer in some of the taluks were parties. In that partition suit the lands now in dispute fell into the Saham of one Jagatbehari Purkayastha, and defendants 18 to 25 ultimately purchased the interest of Jagatbehari. According to the defence ease the share of the applicant for separate account No. 30 did not consist of any specific land and the lands did not appertain only to the taluk of which he was a cosharer. Consequently the facts giving the Collector jurisdiction to open the separate account did not exist and the separate account is void and was obtained fraudulently and collusively, and the plaintiff by the revenue sale of the alleged separate account purchased nothing.
3. Both the Courts below have upheld the defence contention and have dismissed the suit. Hence the present appeal by the plaintiff. It has been found by both the Courts below that as a matter of fact the lands appertain to all the six taluks as alleged by the defendants. This finding is based on sufficient evidence on record and no error could be pointed out as vitiating it. It has also been found by the Court of appeal below that at the time when the application for opening of the separate account No. 30 was made the applicant was not in possession of these specific lands in his share in the taluk. Mr. Das, appearing for the appellant, contended that on reading the judgment of the Court of appeal below as a whole no such clear finding on the point could be found in it. We are however of opinion that that is the finding of the Court of appeal below when it says that 'there is no definite indication that these lands were held specifically by the owners of the separate account.' Mr. Das next contends that even assuming that the applicant did not possess the necessary requirements for getting a separate account, when the separate account was opened as a matter of fact its validity cannot be assailed by any other cosharer so as to prejudice the interest of the purchaser of that separate account at a revenue sale. He further contends that the absence of the requisite qualifications of the applicant would not affect the jurisdiction of the Collector to open the account. Such objection could have been taken by the cosharers at the time when the application for opening the separate account was made. When no such objection was taken and the separate account was opened as a matter of fact it is binding on everybody concerned and the purchaser at the sale must be deemed to have purchased it free from all incumbrances. We are unable to accept this contention of Mr. Das. As was pointed out by Lord Esher, M.R., in Reg v. Commissioners of Taxes (1888) 21 Q.BD. 313 at p. 319:
When an inferior Court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. Then it is not for them conclusively to decide whether that state of facts exists, and if they exercise the jurisdiction without Us existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The Legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the Legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends, and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.
4. This view was reiterated by Lord Beading C.J., in Rex v. Bloomsbury Income-tax Commissioner (1915) 3 K.B. 768. In this particular case the power of the Collector to open a separate account was dependent on the existence of a certain state of facts. The Collector himself was not given jurisdiction to decide those facts. If the facts were in any way disputed, the Collector was prohibited by the Statute from proceeding with the matter. Consequently his jurisdiction to open the separate account was absolutely dependent on the existence of the circumstances mentioned in Section 11 of Act 11 of 1859 and the existence or otherwise of those circumstances was made determinable by another tribunal (vide Section 12 of the Act). In the circumstances, if it has been found that those circumstances authorising the Collector to open the separate account did not as a matter of fact exist his jurisdiction to open the account will thereby be affected and the account opened will be without jurisdiction. In any case, Section 71 of Assam Regulation 1 of 1886 only says that the auction-purchaser at a revenue sale takes the property sold free from all incumbrances. It does not say that the purchaser takes the property free from all other titles and interests existing in the property and in our opinion, the sale could not have affected the title at least of the holders of the five Taluks other than the Taluks of which the applicant for the separate account was a cosharer. In this view, therefore, the plaintiff auction-purchaser did not acquire any title to the lands in suit as against the title of the contesting defendants, Mr. Das contended that the separate account in question constituted an estate as defined by the Assam Begulation 1 of 1886, Section 3, Clause (b) of which defines the 'estate' as follows : 'Estate includes.... (2) any land subject to the payment of a separate amount as land revenue, although no engagement has been entered into with the Government for that account....'
5. Dr. Sen Gupta, on the other hand, contends that the definition is not wide enough to include a separate account at least for the purpose of Section 70 of the regulation and that the inclusion of separate account within this definition of 'estate' would be repugnant to the context when the separate accounts are dealt with in the statute. He points out other absurdities to which the provisions of the statute will lead if separate accounts are taken as covered by the definition of 'estate'. Dr. Sen Gupta pointed out that with that extended meaning of the word 'estate', as used in Section 70 of the regulation, the entire parent estate may be liable for sale for the default only of the separate, account, though taking into consideration the aggregate account of the entire estate, there may be hot only no default but excess payment of revenue. Dr. Sen Gupta next points out that though for the purposes of Act 1 of 1859 the word, as defined in Section 1 of Act 7 of 1868, expressly includes separate accounts, yet it has been held that in the corresponding Section 13 of Act 11 of 1859 the word cannot have that extended meaning Indra Moni v. Priya Nath ('41) 1 A.I.R. 1914 58. We feel inclined to the view urged by Dr. Sen Gupta. But as nothing turns upon whether the separate account by itself forms an estate or not it is not necessary for us to decide the point. Section 71 of the regulation which defines the interest taken by the purchaser does not turn upon whether the property sold is an estate or not. In the result this appeal fails and is dismissed with costs.
Mohamad Akram, J.
6. I agree.