1. This is an appeal by the plaintiffs in a suit for arrears of rent. The plaintiffs allege that he rent is payable in kind, and claim to recover the price of the produce which has not been duly delivered. The defendants contend that the rent was commuted under Section 40 of the Bengal Tenancy Act by an Assistant Settlement Officer on the 12th May 1908, and that, they are consequently liable to pay cash rent at the rate then determined, Thus the question in controversy between, the parties is, whether the order under Section 40 was made with jurisdiction. The Courts below have held that it was beyond the competence of the Civil Court to examine this point. In our opinion this view cannot possibly be sustained.
2. The Civil Court, it is well settled, is not competent to examine the propriety of an order of commutation made with jurisdiction under Section 40, in other words, the Civil Court cannot determine whether, in the circumstances of the particular case, commutation was or was not properly directed; or, whether the amount assessed as cash rent is or is not adequate: Lalla Saligram Singh v. Mohunt Lamgir 3 C.W.N. 311. But it is, equally clear that if a question of jurisdiction arises, it, is incumbent upon the Civil Court to satisfy itself that the order is made with jurisdiction for an order made without jurisdiction is a nullity and does not affect the rights and obligations of the parties. In support of this proposition, reference may be made to the decision in Kali Krishna Baiswas v. Ram Chandra Baidya 29 Ind. Cas. 896 : 21 C.L.J. 487 : 19 C.W.N. 823. We must accordingly consider whether the order under Section 40 was made with jurisdiction by the Assistant Settlement Officer.
3. On the 7th February 1906 the tenant applied to the Sub-Divisional Officer for commutation of his rent under Section 40. The Sub-Divisional Officer was undoubtedly competent to entertain the application and to decide the case on the merits. This is clear from Sub-section 2 of Section 40 as it stood at the time when the application was made. The sub-section ran in these terms: 'An application,' that is, the application to have the rent commuted to a money rent, 'may be made to the Collector, or Sub-Divisional Officer or to an officer making a settlement of rents under Chapter X, or to any other officer specially authorised in this behalf by the Local Government.' The Sub-Divisional Officer subsequently transferred the application to the Settlement Officer, that is, the officer making settlements of rent under Chapter X. On the 14th December 1907 the Settlement Officer, to whom the application had been transferred, proceeded to transfer it to the Assistant Settlement Officer. The Assistant Settlement Officer heard the application on the merits and made an order for commutation. The question arises, whether the Sub-Divisional Officer was competent to transfer the application to the Settlement Officer. If, this is answered in the negative, it becomes unnecessary to consider whether the Settlement Officer was in his turn competent to transfer the application to the Assistant Settlement Officer. Upon a plain readings of sub-sections. 1, 2 and 3 of Section 40, there is no room for doubt that the Legislature contemplated that the application should be entertained and determined on the merits by the officer to whom it was presented by the applicant. Sub-section (1) contemplates an application for commutation of produce rent into money rent by either the Raiyat or his landlord. Sub-section (2) specifies the classes of officers to whom an application of this character may be made Sub-section 3 then lays down that 'on receipt of the application, the officer may determine the sum to be paid as money-rent, and may order that the Raiyat shall, in lien of paying his rent in kind, or otherwise as aforesaid, pay the sum so determined.' It is clear that. 'the officer' mentioned in Sub-section 3 is the officer who received the application from the applicant. It has been contended on behalf of the respondent that the power to transfer a judicial proceeding may be assumed to be inherent in the officer to whom the application has been presented, but no principle or authority has been invoked in support of this view. We held accordingly that the Sub-Divisional Officer was not competent to transfer the application to the Settlement Officer. In this view it is needless to consider whether it was competent to the Local Government to frame a rule under Section 189, which authorises an officer of one of the four classes mentioned in sub Section 2 of Section 40 to transfer the application he has received to an officer of another class specified in the section; nor is it necessary for us to determine whether this (sic) transfer can be claimed in succession by all officers of the class mentioned in that sub-section. Our attention has not been drawn to any rule which authorises a Sub-Divisional Officer to transfer an application received by him to a Settlement Officer. There is thus no escape from the conclusion that the order of the Assistant Settlement Officer was made without jurisdiction.
4. The result is that this appeal is allowed, the decree of the Court of Appeal below set aside and the case remitted to the Court of first instance for determination of the amount payable by the defendants to the plaintiffs in respect of the years in suit. Each party will pay his own costs in this Court as also in the lower Appellate Court.