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Mahommad HusaIn Choudhury Vs. Khana Kazi and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in113Ind.Cas.570
AppellantMahommad HusaIn Choudhury
RespondentKhana Kazi and ors.
Cases ReferredSarjug Saran Lal v. Dukhit Mhato
Excerpt:
bengal tenancy act (viii of 1885) section 147-a - compromise decree in contravention of section 147-a, validity of--jurisdiction and wrong exercise of jurisdiction, distinction between. - .....which have led to this litigation may be shortly stated thus: the lands in respect of which this rent suit has been instituted along with other lands form certain chur lands and they were recorded in the finally published record of rights as khas lands in possession of the landlord. but the defendants went on possessing the lands after they had re-formed in situ and claimed them as appertaining to their original holding. in 1919 a suit was instituted by the present plaintiff for declaration of title to and recovery of possession in respect of certain chur lands including the disputed lands. the suit was compromised between the plaintiff and the defendants. by the compromise the plaintiff admitted that the disputed lands were the defendant's raiyati jote lands with occupancy right and.....
Judgment:

Mitter, J.

1. This is a plaintiff landlord's appeal against the decision of the Subordinate Judge of Dacca, dated 9th April, 1925, affirming the decision of the Munsif of Manikgunj, dated 2nd October, 1923. The plaintiff commenced the suit in which this appeal arises for rent and claimed arrears of rent at the rate of Rs. 17-1- 3 1/2 gandas. Defendant No. 2, now respondent, who alone contested the suit pleaded that the rental was Rs. 10 0-15 gandas and that the rent was liable to be suspended on the ground of partial dispossession. So far as the defence of suspension of rent is concerned, both the lower Courts overruled the objection taken by the defendant, but gave effect to the plea that the plaintiff was not entitled to more than Rs. 10-0-15 gandas. The ground on which the defendant rested his defence which had prevailed in both the Courts below that the plaintiff is not entitled to a higher rent than Rs. 10-0-15 gandas. is that the previous compromise decree between the plaintiff and the defendant was in contravention of the provisions of Section 29, Bengal Tenancy Act, and could not be given effect to The facts which have led to this litigation may be shortly stated thus: The lands in respect of which this rent suit has been instituted along with other lands form certain chur lands and they were recorded in the finally published Record of Rights as khas lands in possession of the landlord. But the defendants went on possessing the lands after they had re-formed in situ and claimed them as appertaining to their original holding. In 1919 a Suit was instituted by the present plaintiff for declaration of title to and recovery of possession in respect of certain chur lands including the disputed lands. The suit was compromised between the plaintiff and the defendants. By the compromise the plaintiff admitted that the disputed lands were the defendant's raiyati jote lands with occupancy right and the defendants admitted that the disputed plots and the yearly rent payable for the said plots were correctly specified against the names of the respective tenants-defendants in the schedule to the solenama and with regard to the disputed lands the quantity of which is stated to be 29 bighas odd, the yearly rent was shown to be Rs. 17-1-3 gandas 1 kara. Both the Courts held that this compromise which was made under Order XXIII, Rule 3, Civil Procedure Code, and which was embodied in a decree could not be given effect to as the rental mentioned in the compromise exceeded more than two annas in the rupee, the rental which had previously been paid in respect of these lands, and consequently contravened the provisions of Section 29, Bengal Tenancy Act, as admittedly the disputed lands were raiyati holdings. The Munsif, accordingly, gave a decree to the plaintiff at the rate of Rs. 10 odd. On appeal to the Subordinate Judge, he affirmed the decision of the Munsif. A second appeal has been taken to this Court by the plaintiff and two points have been urged before us by the learned Vakil for the appellant.

2. It is argued in the first place that the compromise should be given effect to, even if it contravened the provisions of Section 29, Bengal Tenancy Act, for the compromise decree was binding unless the same was set aside and it was admitted in this case that the compromise decree stands.

3. It is argued in the second place that Section 29, Bengal Tenancy Act, has no application, because there was a bona fide dispute prior to the institution of the previous title suit which was settled by the compromise arrived at therein.

4. In support of the first ground, reliance has been placed on the case of Ishan Chandra Banikya v. Moomraj Khan 97 Ind. Cas. 770 : A.I.R. 1926 Cal. 1101 : 30 C.W.N. 940 : 45 C.L.J. 24, where the learned Judges held that a decree passed in contravention of the provisions of Section 147-A, Bengal Tenancy Act, as applicable to Eastern Bengal and Assam, cannot be treated in a subsequent suit between the parties as without jurisdiction and a nullity but is operative and binding until vacated by appropriate proceedings. This decision, it was pointed out in that case, received support from two Full Bench decisions of this Court in the cases of Hridyanath Roy v. Ram Chandra Barua Sarma 58 Ind. Cas. 806 : 48 C. 138 : 31 C.L.J. 482 : 24 C. W.N. 723 (F.B.), and Gora Chand Haldar v. Prafulla Kumar Roy : AIR1925Cal907 . There can be no doubt that the decision in Ishan Chandra Banikya v. Moomraj Khan 97 Ind. Cas. 770 : A.I.R. 1926 Cal. 1101 : 30 C.W.N. 940 : 45 C.L.J. 24 cited above, supports the first ground on which the learned Vakil for the appellant rests his appeal. But it has been argued by the learned Vakil for the respondent that the view taken in the case in Ishan Chandra Banikya v. Moomraj Khan 97 Ind. Cas. 770 : A.I.R. 1926 Cal. 1101 : 30 C.W.N. 940 : 45 C.L.J. 24, is contrary to the view taken by Coxe and N. R. Chatterjea, JJ., in the case of Sarjug Saran Lal v. Dukhit-Mahto 18 Ind. Cas. 809 : 17 C.W.N. 496. There the learned Judge held that a decree for rent passed in accordance with a compromise in contravention of the provisions of Section 147-A, Bengal. Tenancy Act, i.e., without recording evidence to show what the amount of rent was before the dispute arose, is made without jurisdiction, and the tenant is not bound to have it set aside, for, according to the learned Judges, the decree was a nullity. No doubt this case supports the contention of the respondent. But it seems to me extremely doubtful whether the view taken in this case can be regarded as sound, having regard to the decisions in the Full Bench cases to which I have just referred. As was pointed out in the Full Bench case in Hridyanath Roy v. Ram Chandra Barua Sarma 58 Ind. Cas. 806 : 48 C. 138 : 31 C.L.J. 482 : 24 C. W.N. 723 (F.B.) it is the authority to decide a case at all and not the decision given therein which constitutes jurisdiction. Jurisdiction is the power to hear and determine and it does not depend either upon the regularity of the exercise of that power or upon the correctness of the decision pronounced, for the power to decide necessarily carries with it the power to decide wrongly as well as rightly. In this connexion, reference may be made to the observations of Lord Hobhouse in the case of Malkarjan v. Narhari 25 B. 337 : 27 I.A. 216 : 5 C.W.N. 10 : 2 Bom. L.R. 927 : 10 M.L.J. 368 : 7 Sar. P.C.J. 739 (P.C.), where it is pointed out that a Court has jurisdiction to decide wrongly as well as rightly and that the irregular exercise of jurisdiction does not render the order made in the case without jurisdiction and that such orders regularly made must be set aside and cannot be challenged in a collateral proceeding. Chatterjea, J., who was a party to the decision in the case in Sarjug Saran Lal v. Dukhit Mahto 18 Ind. Cas. 809 : 17 C.W.N. 496 had to consider in a later case the soundness of his own decision. In the case of Hem Chandra Chowdhury v. Chandra Mohan Namodas 60 Ind. Cas. 204 : 24 C.W.N. 1070 Chatterjea, J., observed with reference to the case in Sarjug Saran Lal v. Dukhit Mahto 18 Ind. Cas. 809 : 17 C.W.N. 496 as follows:

The question whether a non-compliance with a particular provision of the law constitutes an irregularity, or renders an order a nullity, has been considered in the recent Full Beach decision in the case of Hridyanath Roy v. Ram Chandra Barua Sarma 58 Ind. Cas. 806 : 48 C. 138 : 31 C.L.J. 482 : 24 C. W.N. 723 (F.B.), It is unnecessary, however, to discuss how far (if any) the principle laid down by the Full Bench affects the decision in the case of Sarjug Saran Lal v. Dukhit Mhato 18 Ind. Cas. 809 : 17 C.W.N. 496, because we think that the present case is distinguishable from that case.

5. We think that in view of the Full Bench decisions to which we have referred and to the observations of the Judicial Committee in Malkarjans case 25 B. 337 : 27 I.A. 216 : 5 C.W.N. 10 : 2 Bom L.R. 927 : 10 M.L.J. 368 : 7 Sar. P.C.J. 739 (P.C.) it cannot be said that the compromise decree in this case was passed without jurisdiction. The result is that, the first ground prevails.

6. We also think that the second ground taken is a good ground. It seems to us that there was bona fide dispute with regard to the title to the lands in respect of which the present rent suit was instituted. In the Record of Rights these lands were shown to be in the khas possession of the plaintiff. The entry in the finally published Record of Rights must be presumed to be correct until the contrary was shown and that gave the landlord a just reason to institute the suit for recovery of possession of these lands which were recorded in his khas possession as the tenant-defendants had not abandoned the possession of those lands. The lands had recently come out of water and as naturally happens in these cases, there is a sort of dispute between persons to whose holdings the lands were annexed and the proprietor of the land. There was such a dispute and a bona fide dispute by reason of the entry in the Record of Rights in favour of the plaintiff landlord and it was in settlement of that dispute that this compromise was arrived at. Both the parties realized, as the compromise petition shows, that if the said title suit continued, they would both be ruined on account of useless expenditure, and neither party would gain much. Therefore, both the plaintiff and the defendant in that suit without any reference to the plaint and the written statement compromised the suit in the manner, namely, that for 291/2 bighas of land the defendant was to pay an yearly rent of Rs. 17 odd. The second ground is a substantial ground and must also prevail.

7. The result, accordingly, is that the decrees of the Courts below are set aside and in lieu thereof, we direct that the plaintiff do get rent from the defendant at the rate of Rs. 17-1-32, gandas for the period in suit. The plaintiff-appellant is entitled to his costs both here and in the Courts below.

Mallik, J.

8. I agree.


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