1. On an application by the defendants under Section 622, C.P.C., a rule was granted to them in the following terms: 'Let a rule issue calling on the opposite party to show cause why the judgment and decree of the lower Court made under Section 9 of the Specific relief Act, on the 30th May 1908, should not be set aside as being wholly without jurisdiction, the subject-matter in the suit being no longer in existence.'
2. It appears that the suit was instituted on the 18th July 1904 and after deplorable delays was disposed of on 30th may 1908. It is contended on behalf of the defendants that the subject matter of the suit was not in existence on the day the judgment was passed, having been washed away, and in support of that contention, Order No. 84 of the order-sheet, dated the 1st June 1908, has been referred to. In that order we find that a certain gentleman was appointed to find out the land decreed by reference to the papers on the record. Then Order No. 86 of the 10th June 1908 shows that both parties intimated to the Court that the land had then been washed away and that it could not be found in the locality. It is, therefore, contended that when the subject-matter of the dispute had ceased to exist the learned Subordinate Judge had no jurisdiction to pass any order under Section 9 of the Specific Relief Act.
3. The rule was granted only with reference to the order, dated the 30th May 1908, as being wholly without jurisdiction on the ground mentioned in the rule. We have been informed by the learned Advocate-General who appears in support of the rule that it was understood at the time when the rule was granted that another question raised in the application of the defendants should be considered, namely, that when it was admitted that the plaintiff had not physical possession of the land, but that it was her tenants who were in actual physical possession no case could lie under Section 9 of the Specific Relief Act.
4. With regard to this last point we have been referred to a good many authorities of this Court. We find that the authorities on the subject are conflicting. On behalf of the plaintiff two unreported judgments one, dated the 6th September 1897, in an application in Suit No. 28 of 1896, Bindubashini Chaudhurani v. Srimati Jahnavi Chaudhurani 13 C.W.N. 303, 1 I.C. 150, in the Court of the Subordinate Judge of Pabna and the other in Civil Rule No. 1401 of 1891 13 C.W.N. 307 Note; 1 I.C. 151, dated the 21st March 1892, have been cited, and in these two judgments it was distinctly ruled that if a party holds possession through his tenants ho has got the right to sue, if he is dispossessed under Section 9 of the Specific Relief Act. In the case of Sonaton Shome v. Sheik Helim 6 C.W. N 616 it was held otherwise.
5. This being a case under Section 622 of the Code, and the contention based on the decision in Sonaton Shome v. Sheik Helim 6 C.W. N 616 not being specifically raised in the rule, we do not think it is necessary to decide this contention. It might be necessary, in order to decide it, to make a reference to a Full Bench, and this case is certainly not of sufficient importance to justify such a course. There remains the question of the jurisdiction of the Subordinate Judge to award possession of diluviated land. On this point the materials before us do not authorise interference with the Subordinate Judge's order. When the suit was instituted the property was in existence, nor was there anything before the Subordinate Judge, when he delivered judgment to indicate that it had ceased to exist. But when next day it became necessary to prepare the decree it appeared from the statements of both parties, which may have been the informal observations of their pleaders, that the land had been washed away and was not then to be found. It was then the beginning of the rains when the rivers had begun to rise. Assuming, therefore, for the sake of argument only that total diluviation might oust the Court's jurisdiction (an assumption we may say, that it might be very dangerous to draw unreservedly in lands subject to constant fluvial action) yet the mere recital in Order No. 86 quoted above does not seem to us to justify a finding of total and permanent diluviation such as might furnish a basis for the petitioner's plea, that the jurisdiction had been wholly ousted. In this view we are constrained to discharge the rule with costs, 5 gold mohurs.