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WazuddIn and ors. Vs. Abu Sayed Zahoorul Ashraf and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1931Cal327
AppellantWazuddIn and ors.
RespondentAbu Sayed Zahoorul Ashraf and ors.
Cases ReferredJang Bahadur v. Bank of Upper India Ltd. Lucknow A.I.R.
Excerpt:
- .....as the application was not made to him or to the settlement officer but to an entirely different officer, the sub-divisional officer. in that case it was hold that the sub-divisional officer had no inherent jurisdiction to transfer the case to the settlement officer, and therefore it was held that the commutation proceedings were ultra vires. in the present case however the application was made to the collector who is also the settlement officer and under rule 45 which purports to have been made under section 189 of the act power is given to the settlement officer to make over for disposal to an assistant settlement officer inter alia applications for; commutation of rent under section 40. it is not necessary, however for the purpose of disposing of this appeal to determine.....
Judgment:

Page, J.

1. This case has pursued a long and weary course, and comes before me as the sixth tribunal by which it has been considered. In 1925 the appellants applied under Section 40, Ben. Ten. Act, for commutation of rent which was payable in produce into a money rent. The application was made to the Collector who is also the Settlement Officer, and it has been found by the learned Munsif (and that finding has not been reversed by the lower appellate Court) that the application was transferred by the Collector as the Settlement Officer to an Assistant Settlement Officer. The Assistant Settlement Officer duly determined the application and commuted the produce rent into a money rent. There was an appeal from the Assistant Settlement Officer to the Collector and a further appeal from the Collector to the Commissioner. But in neither of these appeals was any objection raised by the landlord that the Assistant Settlement Officer had no jurisdiction to commute the rent under Section 40. The effect of the two appeals was that the rent was commuted, but the rate was varied. The landlord then brought the present suit claiming arrears of produce rent, and in this suit for the first time it was argued on behalf of the plaintiffs that the Assistant Settlement Officer had no jurisdiction to hear and determine the application for commutation of the produce rent. In the trial Court it was held that the Assistant Settlement Officer had jurisdiction to commute the rent, and a decree was passed in favour of the plaintiffs for arrears of rant, damages and interest thereon upon a money basis. On appeal however the learned Subordinate Judge held that the Assistant Settlement Officer in the circumstances had no jurisdiction to commute the rent and modified the decree of the trial Court so that the plaintiffs should recover the whole rent upon the produce basis. The tenant has now appealed to the High Court, and contends that the lower appellate Court was wrong in holding that the Assistant Settlement Officer had no jurisdiction to hear the application of commutation, and that the decision of the trial Court was correct. Now, the respondents rely upon a decision of this Court, Jadu Nath Manna v. Pran Krishna Deb [1918] 45 Cal. 769 and contend that the present case is covered by the decision in Jadu's case. I am unable to accept that contention. At the time when the commutation proceedings were taken in connexion with which Jadu's case was launched, Section 40, Sub-section (2) contained no reference to the Assistant Settlement Officer as a person who had jurisdiction to hear a commutation case under that section.

2. In the present case however the rights of the parties are governed by Section 10, Sub-section (2) of the Act as sub. sequently amended; and under Section 42 (2) an application for commutation may be made to a Revenue Officer appointed by the Local Government with an additional designation of Settlement Officer or Assistant Settlement Officer for the purpose of making a survey and preparing the Record-of-Rights under Ch. 10 of the Act. In Judu's case the application was made to the Sub-divisional Officer, who transferred the application to the Settlement Officer, who in his turn re-transferred it to the Assistant Settlement Officer; and whether or not, at that time the Assistant Settlement Officer had jurisdiction on an application made by him to hear and determine it, it is not necessary to consider as the application was not made to him or to the Settlement Officer but to an entirely different officer, the Sub-divisional Officer. In that case it was hold that the Sub-divisional Officer had no inherent jurisdiction to transfer the case to the Settlement Officer, and therefore it was held that the commutation proceedings were ultra vires. In the present case however the application was made to the Collector who is also the Settlement Officer and under Rule 45 which purports to have been made under Section 189 of the Act power is given to the Settlement Officer to make over for disposal to an Assistant Settlement Officer inter alia applications for; commutation of rent under Section 40. It is not necessary, however for the purpose of disposing of this appeal to determine whether Bengal Government Rule 45-G was ultra vires having regard to the terms of Section 189; for in my opinion, the appeal should be allowed upon another ground. It is conceded that the Assistant Settlement Officer, under Section 40 as it obtained at the time when the application for commutation was made in the present proceedings, had jurisdiction to hear and determine application for commutation duly made to him. Now, when the application in the present case was heard by the Assistant Settlement Officer no objection was made to any irregularity in the manner in which the application came before the Assistant Settlement Officer, and if any such objection had been raised steps might have been taken by the applicant to correct any such irregularity in the manner in which the application came to be heard, by the Assistant Settlement Officer. The Settlement Officer in those circumstances decided the matter, and made an order for commutation. It is further to be noted that neither in the appeal to the Collector nor in the further appeal to the Commissioner was any objection taken that having regard to the manner] in which the application had come before the Assistant Settlement Officer, the Assistant Settlement Officer had no jurisdiction. In my opinion, in the present suit it was too late for the plaintiffs to contend for the first time that the, commutation proceedings before the Assistant Settlement Officer were ultra vires. In my opinion, this case is governed by the principles laid down in Gurdeo Singh v. Chandrihah Singh [1909] 36 Cal. 193 where Mookerjee, J. observes:

There are numerous authorities which establish that when in a cause the Judge is competent to try, the parties without objection join issue and go to trial upon the merits, the defendant cannot subsequently dispute his jurisdiction upon the ground that there were irregularities in the initial procedure which if objected to at the time, would have led to the dismissal of the suit : see also Jang Bahadur v. Bank of Upper India Ltd. Lucknow A.I.R. 1928 P.C. 162.

3. In the present case it is not contended that the Assistant Settlement Officer was not competent to try the application for commutation; and, in my opinion in the circumstances, the irregularity (if any), in the manner in which the application came before the Assistant Settlement Officer for determination was waived by the plaintiffs. In my opinion the decision in Jadit's case does not apply, and the appeal must be allowed, the decree of the lower appellate Court set aside, and the decree of the trial Court restored. The appellants are entitled to, their costs both in this Court and in the lower appellate Court.


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