1. This is the plaintiff's appeal in a suit for rent for the years 1321 to 1324 B.S. The plaintiff claims that he is the landlord of the defendants in respect of a jama of Rs. 90-8-0 and odd gandas, the superior interest in which fell to his share upon a partition made in the year 1914 under the Bengal Estates Partition Act V. (B.C.) of 1897. The Munsif of Basirhat decreed his suit: but the Subordinate Judge of 24 Parganahs, on appeal has dismissed the suit.
2. The facts upon which the case has been decided by the learned Subordinate Judge may be stated as follows:-Originally the plaintiff with a number of co-sharers was the landlord in respect of a tenancy comprising lands in a number of mouzas, of which tenancy the rent was Rs. 251-0-6 pies. In course of time, the tenancy by arrangement, in the first instance, was split up, and about the year 1913, if not much earlier, the tenants were claiming that the original jama of Rs. 251 odd had entirely gone and that in point of fact and law, there were created twelve separate jamas, certain of the landlords having the superior interest in each of those jamas, and certain of the tenants having the tenants' interest in them. It appears further that in 1913 a decree was obtained which proceeded on the basis that by this time at all events the claim that the original jama had been legally split up was well-founded. In these circumstances in 1914, the sharers entitled to the superior interest effected a partition under Act V of 1897. The Deputy Collector, so far as appears, proceeded quite regularly under that Act. He made out the necessary lists of assets, he gave the necessary notices and he found that the original jama of Rs. 251 odd still subsisted. Accordingly, it became necessary for him in making the partition to exercise the powers conferred by Section 81 of the Act and there again proper notices were served on the tenants concerned. None of the tenants concerned with a single exception appeared to object. One tenant did appear and did object but his objection was over-ruled and he did not appeal. The learned Subordinate Judge in the present case has found that the decree of 1913 was not brought to the notice of the Deputy Collector, so that in exercising his powers under Section 81 the position is that having jurisdiction to enquire into the facts, he did enquire into the facts and came to a conclusion which, on the evidence adduced, was correct enough. But it now turns out by reason of a further piece of evidence that his conclusion was in fact incorrect. Now, in these circumstances, the view taken by the learned Subordinate Judge in the present rent suit is that it being established that, there was no one jama of Rs. 251 but that this bad, at the time of the partition, been split into twelve different jamas,, the Deputy Collector had no jurisdiction to amalgamate the different jamas and then to sub-divide them again: that his order was entirely without jurisdiction; and that, therefore, the plaintiff's claim which is based upon that order must fail.
3. In answer to this contention, the learned Vakil for the Appellant relies, in the first place, upon Section 119 of the Estates Partition Act. That section provides that no order of certain kinds therein enumerated ' shall be liable to be contested or set aside by suit in any Court or by any means other than those expressly provided in this Act.' The orders which are so guarded include orders made under Chapter IX. But when Chapter IX is mentioned, there is introduced this exception 'except Section 81.' It is to be noticed that with regard to certain orders made under Section 84; 86 and 88, an express right is given to bring a suit to modify or set aside the order. The first question is whether Section 119 imports that nobody can challenge an order under Section 81 except by bringing a suit. In my opinion that is not a possible construction. All that is done here is to exclude orders made under Section 81 from the wide prohibition against bringing a suit or doing anything else to challenge. Another question arises upon this section. As Section 81 is excepted from a provision which forbids not only the bringing of a suit to set aside but forbids the use of any means other than those expressly provided in this Act, is it a correct inference to say that this impliedly means or imports that, in the case of Section 81, it is liable to be challenged not only by bringing a suit but by taking the point in any other fashion? There again, in my judgment, the inference would be unsound. Section 119 does not, in my opinion, prejudice the question either way. It seems to me that if a person has the right to bring a suit or to challenge the order by any other means, the section leaves him that right. But the section gives no right in respect of Section 81. I have, however, no doubt at all that a suit does lie to set aside an order made under Section 81 if it turns out that by that order a tenure or holding has not been split up but an amalgamation of tenures and holdings has been divided contrary to the meaning of the section. In such a suit I am fairly clear that it would be no answer at all to say that the Deputy Collector had jurisdiction to enquire into the facts and that if he has found the facts wrongly his order cannot be interfered with. For the purposes of such a suit, it seems reasonable to say that the Deputy Collector could not give himself jurisdiction under Section 81 by coming to a wrong finding of fact. In my opinion, the question in this case, since no suit has been brought to set aside the order under Section 81, is really whether in the circumstances and upon the facts found the tenants are entitled to treat this order as a mere nullity-an order which no man is required to pay any attention to, and an order which does not even require to be set aside. That question, in my opinion, in view of the draftsmanship of the Act, has extraordinary difficulty and to resolve it, it is necessary to make a careful study of the scheme of the Estates Partition Act.
4. Before embarking upon that it may be observed that in the reports there are two cases only which seem to be of any assistance. In the case of Nandlal Pathak v. Mohunth Chanurpat Das (1913) 17 C.W.N. 779, Sir Lawrence Jenkins was plainly of opinion that the records of the partition proceedings under the Act of 1897 would be evidence under Section 35 of the Evidence Act, notwithstanding that the batwara khasra under the previous Act of 1876 was held not to be such a record. In that conclusion the Court was fortified by the decision in Janki Dobey v. Kirtarath Roy (1908) 13 C.W.N. 93. I think that the scope of this decision has been somewhat misunderstood. The case there was a suit for arrears of rent and, as a proof that the defendant held the jama sued upon under the plaintiff there was tendered in evidence certain butwara papers, that is to say, papers prepared by the Deputy Collector acting under Chapter VI of Act V of 1897. The Court in that case remarked on the provisions of Section 44 of the Act and observed that the procedure as to the preparation of the rent roll and the publication thereof was analogous to the procedure under Sections 103 and 103 A of the Bengal Tenancy Act; and the conclusion was that entries in the partition papers as to the amount of the rent are evidence in the same way as entries in the record-of-rights prepared under Chapter X of the Bengal Tenancy Act are admissible in evidence under Section 103-B ' Prima facie they are evidence against the tenant, though that evidence may not be very valuable.' I put aside for a moment whether the record of existing rent is or is not entitled to the presumption of correctness given to the record-of-rights under Section 103-B. There can be no doubt that a record-of-rights made under Chapter VI is evidence, at all events, under Section 35 of the Evidence Act. Now, in these circumstances the learned Vakil for the respondents naturally contends that if this is all the effect that the butwara papers have, then at all events the learned Judge of the lower Appellate Court could not be wrong in finding on the basis of the decree that the butwara papers were all wrong and that he was entitled to dismiss the suit. The question is whether that point of view is really correct.
5. Now, under the Estates Partition Act there are various stages and these stages have by the Act been separated out and dealt with very conveniently in different chapters. By Section 44, Chapter VI is introduced which deals with 'proceedings up to the determination of the partition' which I understand to mean up to the time when the decision dividing the property has to be come to. It begins by saying that every Deputy Collector shall have the powers of a Revenue Officer under Chapter X of the Bengal Tenancy Act. It orders him to make a survey and prepare a record of the existing rents and other assets. He has to record several things: the rents payable for all rent-paying lands, first, as stated by the landlord, secondly, as stated by the tenants, and thirdly, as taken by the Deputy Collector for the purposes of the partition. Notices have to go to everybody. The record has to be published and, after providing for that, the Deputy Collector is told to record an order fixing a date on which to come to a decision as to the partition of the estate. When we come to Chapter VIII, we come to the chapter which deals with making of the partition and at that stage we. find that the Deputy Collector has to consult all the proprietors who are present and dispose of any objection that they may urge. He has then to proceed to determine how the lands of the parent estate shall be partitioned into separate estates and various precautions are provided to safeguard against injustice. The important thing to notice for the present purpose is this- That the record prepared under Chapter VI is a record which in no way affects the tenants of the holdings save as a matter of evidence. If there is any question and doubt about the tenants' possession or the amount of rent, the Deputy Collector has to take down the two views and has to come to a decision for the purposes of partition only. When the partition comes to be made in the usual course, it is made only in the presence of the proprietors of the estate under partition and, if one proprietor thinks that the Deputy Collector has over-estimated the rent of a particular tenant then for the purposes of the partition he may have his say and the fact may be taken account of when the lands are divided up. Under Chapter VI, the Deputy Collector is not a person who is authorised to change or affect the status of a tenant. He has no power over the tenant's jama but he is to act as a person whose duty is to make a true record of the existing rights and to estimate truly for the purposes of a partition between the proprietors. If, therefore, the matter stops there it is fairly plain that the mere entry of a tenant's jama in such a record would not, at any rate, have higher value than an entry in the record-of-rights under the Bengal Tenancy Act: it might not have as much but it would not have more. While this, therefore, is the prima facie position, the position is manifestly changed when, in the course of making the partition it becomes necessary to consider the exercise of the powers given by Section 81. A Deputy Collector considering this question is not merely a person making a record. He is a person who, on certain conditions, is authorised not merely to record but to alter or affect the right of a tenant, to make an order that whereas up to this moment the tenant held so much land of a proprietor, now hereafter he shall hold such and such land of one proprietor and such and such land of another proprietor. I do not think that analogies from the Bengal Tenancy Act are anything but fallacious for the present purpose, but the kind of duty under Section 81 is not be much analogous to the duty of Revenue Officer under the first part of Chapter X as to the duty of a Revenue Officer who is exercising the power to alter the right of a tenant given by the second part of Chapter X. No useful analogy, however, can be derived because under the second part of Chapter X there is not only provision for a suit before the Revenue Officer but there is ample provision for appeals to the Civil Court and under Section 107 there is a definite enactment as regards finality.
6. Leaving aside all questions of mere analogy, we have to come to the position of the Deputy Collector under Chapters VIII and IX of the Estates Partition Act, and to ask as to Section 81 whether, if the enquiry which he makes is properly made but the conclusion of fact to which he comes is unfounded the tenant is entitled not merely to bring a suit to have it set aside but to treat it as null and void for all purposes and to take no notice of it. Now, under Chapter VIII, the Deputy Collector is ordered to be guided by the provisions of Chapter IX: he is performing a task which is ordinarily the task of a Civil Court. When the statute comes to deal, in Section 118, with the powers of officers with regard to false evidence, it speaks of ' a Collector or other officer exercising jurisdiction under this Act' and it deals with him in language which is closely analogous to the language which one uses when dealing with a judicial officer acting judicially. There is a series of appeals provided for by Chapter X. There is also by Section 106 (a) provision made that ' if the directions of the Act are in substance and effect complied with, no proceedings thereunder shall be affected by reason of any mistake or informality unless any person has suffered or is in danger of suffering material injury in consequence.' That provision certainly does not cover the present case but it is an indication of the nature of the duties which the Collector has to perform. It appears to me that when under Section 81 a Deputy Collector summons the tenants and proceeds to enquire into the necessity of splitting up a holding and to make an order that the tenure or holding be split up, he is acting, at all events, as a quasi judicial officer. An ordinary executive order proceeds upon the assumption that people's rights are readily ascertainable and does not purport or attempt to alter proprietary right. An order under Section 81 is not adequately described as being of that character. A Deputy Collector has to find out what the holdings are, and he is given power to affect the proprietary rights not only of proprietors but upon due notice, of tenants. If he were acting as an ordinary Civil Court, the con-sequence of any wrong finding of fact would have to be corrected either by review, revision or appeal. But if he is not a person making an executive order and he is not functioning as an ordinary Civil Court but is functioning in a quasi judicial capacity as a special tribunal for certain purposes, then, upon the whole it seems to me that the distinction in the case of Hridoy Nath v. Ram Chandra A.I.R. 1921 Cal. 34 must be taken and there is difference between the existence of jurisdiction and the exercise of jurisdiction. [See also Krishna Kishore v. Amarnath (1920) 47 Cal. 770.] One has to look to the position created by the Act. Now, what is it? The question whether this large jama of Rs. 251 odd existed or not may well have made all the difference in the world to the partition effected in 1914. If the tenant makes no objection, what happens? What happens is that each of the proprietors is given a certain jama as his superior interest. If it is to be said that on a wrong finding of fact the order is a mere nullity then that partition may become a mere nullity; the whole basis of the partition may well be gone. In any case, as there is no saving such as is provided for by Section 89 for other cases one proprietor would be liable in the suit of another to have the partition ripped up again. If the order under Section 81 is a mere nullity then I take it that a proprietor to whom a particular jama has not been given would still be entitled to insist upon his proprietary rights as a co-sharer in respect thereof. In a case like this where the error is merely an error in the ascertainment of the fact by the person whose duty it was to ascertain it and who did ascertain it correctly enough on the evidence before him, the consequences which flow from the idea that the order under Section 81 is absolutely null and void, not needing even to be set aside, are certainly very alarming. It seems to me that the correct view is that on ordinary principles a suit in the Civil Court to set aside such an order would be necessary because it is an order which as between the proprietors certainly has some value in the circumstances of this case at least and which ought only to be set aside in the presence of all the proprietors, every one of whom is vitally interested in the matter. In short, if a tenant is allowed at any time-ten years later it may be-to take this point by mere defence in a rent suit under a system of procedure which does not recognize counter-claims, and to take it in the presence of one only of the proprietors, party to the partition, the consequences are so manifestly impossible that the legislature in providing a scheme as it has done by Act V of 1897 cannot readily be supposed to have intended it. My opinion, therefore, is that while in such a case as this, in a suit properly constituted and brought within whatever limitation period may be applicable the plaintiff would on the facts found have a complete right to have the order made under Section 81 set aside, yet on that footing, it is going too far to say that that order is to be regarded as a mere nullity, so that, although the tenants have had notice and although the landlords have had to act upon the order for a substantial time it can be ignored or set aside as against a single landlord in answer to a suit for rent. For these reasons, it appears to me that this appeal should be allowed, the judgment and decree of the Subordinate Judge should be set aside and those of the Munsif restored with costs.
7. I agree that the appeal should be allowed. Section 119 of the Estates Partition Act V (B. C.) of 1897 provides that certain orders under the Act' shall not be liable to be contested or set aside by suit in any Court or by any means other than those expressly provided in this Act.' Section 119, in my opinion, does not confer a right to challenge an order under Section 81 All it does is to exempt Section 81 from the prohibitive provision of Section 119. If a right in conferred upon an aggrieved per-son to challenge the decision of a Deputy Collector under Section 81 it must be found elsewhere. I agree with what has fallen from my learned brother with respect to the scope and object of the Estates Partition Act, and, having regard to the view which he has expressed, and in which I concur, as to the object of the Act, I should expect to find in the Act some provision analogous to Sections 104-J and 107 of the Bengal Tenancy Act making an order of the Deputy Collector under Section 81 final and conclusive for all purposes or for such purposes as might be deemed to be fit and proper. But, so far as I can ascertain, there is no such provision in the Act and having regard to the provisions of Section 119 it may be that the legislature intended that there should be some mode in which an order under Section 81 should be challenged. I desire in thin case to reserve my right to reconsider the question as to whether, if a tenant or other person is aggrieved by an order under Section 81, he is entitled to challenge that decision otherwise than by the methods provided in the Estates Partition Act, because I agree with my learned brother in thinking that it is not open to a tenant, in any event, to challenge such an order by the mode which he has adopted in this case. If any right exists which entitles a tenant to challenge an order under Section 81, in my opinion, it cannot be challenged by way of defence to a suit for rent in the absence of the other parties to the partition. If that were so, for the reasons given by my learned brother, Mr. Justice Rankin, the scheme of the Act would be or might be rendered nugatory. Therefore in these proceedings, constituted as they are, in my opinion, it is not open to the defendants to challenge the correctness of this order. Upon these grounds I agree that the appeal should be allowed with costs.