1. This appeal is directed against an order of the Court of Appeal below modifying, in favour of the plaintiffs- respondents, an order of the primary Court by which mesne profits were assessed in execution of a decree. The defendant- appellant assails the order as made without jurisdiction, because, it is contended, the only Court competent to hear an appeal against the order of the Subordinate Judge, was this Court. This view has been controverted on behalf of the plaintiffs-respondents, and it has further been urged that, if it be taken to be well founded, the present appeal itself must be deemed incompetent. To appreciate the full effect of these conflicting arguments, it is necessary to refer for a moment to the previous history of this litigation.
2. The plaintiffs sued the defendant in ejectment and for recovery of mesne profits. The claim was valued at Rs. 2,100, viz., Rs. 1,725 for the value of the land and Rs. 375 as the approximate value of the mesne profits for three years antecedent to the suit. The Subordinate Judge decreed the claim on the 16th September 1905, and on appeal, his decision was affirmed by the District Judge on the 22nd June 1906. The plaintiffs subsequently executed the decree and obtained delivery of possession of the land. Later, on the 3rd July 1908, they applied to the Court for assessment of mesne profits, and valued their claim at Rs. 7,549. A Commissioner was appointed to lake the accounts, and he reported that the plaintiffs were entitled to recover Rs. 3,690 as mesne profits. The Subordinate Judge heard the objections of the parties and made a decree for only Rs. 962. The plaintiffs appealed against this decision to the District Judge and valued their appeal at Rs. 2,728, i.e., the difference between the sum assessed by the Commissioner and the sum allowed by the Subordinate Judge. The substance of the matter, therefore, was that although the plaintiffs had in their application valued the claim at Rs. 7,549, they reduced it to Rs. 3,690. The defendant filed a cross-appeal and valued it at Rs. 962, the sum awarded by the Subordinate Judge; in other words, he practically denied his liability to pay mesne profits. The District Judge heard the matter on the merits, allowed the appeal in fall, and dismissed the cross-appeal. The result thus was that the plaintiffs obtained a decree for Rs. 3,690, the sum assessed by the Commissioner. They have paid ad valorem Court-fees upon the full amount as required by the statute, and a decree has been drawn up in their favour. The defendant has now appealed to this Court, and on his behalf, it has been contended that the appeal to the District Judge was incompetent as the true value of the suit exceeded Rs. 5,000. This contention is clearly well founded. The suit was, no doubt, originally valued at Rs. 2,100, inclusive of a sum of Rs. 375 as the estimated value of the mesne profits antecedent to the suit. This amount, however, was subsequently altered at the instance of the plaintiffs to Rs. 7,549 and ultimately reduced to Rs. 3,690. The real value of the suit, therefore, was Rs. 5,415, and an appeal against the decree of the Subordinate Judge assessing the mesne profits could thus be entertained only by this Court. This view is supported by the decision of the Full Bench in Ijjatulla v. Chandra Mohan 6 C.L.J. 255 : 34 C. 954 : 11 C.W.N. 1133. As pointed out by the Full Bench, the forum of appeal cannot be determined by reference to the arbitrary valuation initially put forward by the plaintiffs; it must be regulated by the real valuation as ultimately settled at their instance. This view is well founded on principle, as explained in the cases of Golap Singh v. Indra Coomar 9 C.L.J. 367 : 13 C.W.N. 493 : 5 M.L.T. 360 1 Ind. Cas. 86 and Bhupendra Kumur v. Puma Chandra 13 C.L.J. 132 : 8 Ind. Cas. 34 : 15 C.W.N. 506 to which we adhere, notwithstanding the contrary view of the Allahabad High Court in Sudarshan Das Shastri v. Ram Pershad 33 A. 97 : 7 Ind. Cas. 34 : 15 C.W.N. 963 and Sudarshan Das v. Ram Prashad 10 Ind. Cas. 402. The case of Kali Kamal v. Fuzlur Rahman 15 C.W.N. 454 : 7 Ind. Cas. 778 is clearly distinguishable, as there the plaintiffs did not take any steps to increase the valuation tentatively put forward by application and payment of Court-fees in the original Court; but they tried to raise the valuation on appeal. This, it was held, could not confer a right of second appeal contrary to the express prohibition in the statute, and it may be pointed out that this view accords with that taken in the cases of Madho Das v. Ramji 16 A. 286 A.W.N. (1894) 84 and Goswami Sri Raman v. Desraj 32 A. 222 : 7 A.L.J. 203 : 5 Ind. Cas. 875. The inference is irresistible that the appeal presented against the order of the Subordinate Judge lay to this Court, and not to the Court of the District Judge, The contention of the appellants must, therefore, be upheld.
3. Two questions now require consideration, viz., first, whether the appellant has waived the objection to the jurisdiction of the District Judge now urged before this Court, and, secondly, whether the present appeal is, incompetent by reason of the fact that the order of the District Judge was made without jurisdiction.
4. In so far as the first point is concerned, it is clear that the appellant is entitled to raise the question of want of jurisdiction of the District Judge, notwithstanding the fact that he failed to take exception in the Court below and himself preferred a cross-objection. As was pointed out by this Court in Golab Sao v. Chowdhury Madho Lal 2 C.L.J. 384 : 9 C.W.N. 956 the consent, of the parties to a litigation cannot confer on a Court jurisdiction which it does not possess, and the agreement of parties cannot authorise a superior Court to revise a judgment of an inferior Court when it is not invested., with Appellate jurisdiction over such Court. This is clear from the decision of the Judicial Committee in Minakshi v. Subramaniya 14 I.A. 160 : 11 M. 26 where the Judicial Committee reversed the decision of the High Court in a matter in which an appeal had been preferred, though no appeal was allowed by law, and was heard without objection. This view is also supported by Ledgard v. Bull (1886) 13 I.A. 134 : 9 A. 191. The principle that parties cannot by consent or by stipulation invest a Court with jurisdiction not conferred upon it by law, is applicable to cases wherein the jurisdiction is dependent upon the value of the subject-matter in controversy; Merrill v. Petty (1872) 16 Wallace 388 : 21 Law. Ed. 499. Reliance, however, was placed upon the case of Gurdeo Singh v. Chandrikah Singh 5 C.L.J. 611 : 36 C. 193 : 1 Ind. Cas. 913 to show that an objection to jurisdiction may be waived; but that case is clearly distinguishable. It was not a case of absolute want of jurisdiction; there the Court had assumed jurisdiction in an irregular manner. Reference was also made to the principle that want of jurisdiction over the person may be waived. That principle, obviously, is of no assistance to the respondents, because the doctrine applies only where jurisdiction over the subject-matter exists. Where, as here, there is a total want of jurisdiction over the subject-matter in controversy, the objection cannot be waived. In re Aylmer (1887) 20 Q.B.D. 258 : 57 L.J.Q.B. 168 : 36 W.R. 231; Jones v. Owen (1849) 5 D. & L. 669 : 18 L.J.Q.B. 8 : 13 Jur. 261; London Corporation v. Cox (1866) 2 H.L. 239 : 36 L.J. Ex. 225 : 36 W.R. 44; Bacon. Abr. tit. Courts (A). The contention, therefore, that the objection has been waived cannot be supported.
5. In so far as the second point is concerned, it is plain that the present appeal is competent. As was pointed out in Moharaj Kumar Bindeswari v. Lakhpat Nath 15 C.W.N. 725 : 8 Ind. Cas. 26 where jurisdiction is usurped by a Court in passing an order against which an appeal would lie if it had been passed with jurisdiction, an appeal against the order cannot be defeated on the ground that the order was made without jurisdiction. The principle that the Court was constituted an arbitrator by the parties, Ledgard v. Bull (1886) 13 I.A. 134 : 9 A. 191 and Bickett v. Morris (1866) L.R. 1 Sc. & Div. 47 has also no application to the present case. The order of the District Judge purports to be and is in essence a decree, and, is consequently, appealable as such even on the ground that it was made without jurisdiction: Abdul Hossein v. Kasi 27 C. 362 : 4 C.W.N. 41. The principle that a decree made without jurisdiction is reversible on appeal, is also involved by implication in Section 99 of the Civil Procedure Code of 1908. The objection, therefore, that the present appeal is incompetent cannot be sustained.
6. The result is that this appeal is allowed and the decree of the District Judge set aside as made without jurisdiction. We now make the order which ought to have been passed by him, viz., we direct that the memorandum of appeal presented to the Court of the District Judge be returned to the plaintiffs for presentation to the proper Court, i.e., to this Court. The learned Vakil for the respondents has suggested that as the memorandum is in this Court, it may be taken to have been presented here after return by order of this Court. This we think is reasonable. The memorandum of appeal, therefore, will be taken to have been presented in this Court on this date. No question of Court-fees arises, but we have to consider the question of limitation. In view of the nature of the objection to jurisdiction raised therein and the divergence of judicial opinion on the subject, we are of opinion that this is a fit case for the exercise of our discretion under Section 5 of the Limitation Act. Balaram v. Sham Sunder 23 C. 526. If the period between the presentation of appeal in the Court of the District Judge and the order for return made by this Court be deducted, the appeal now lodged in this Court is within time. The proper course to follow, therefore, is to allow this appeal, discharge the order of the District Judge, record on the memorandum of appeal presented to that Court an order of return for presentation to the proper Court, and, finally to regard the memorandum as presented in this Court on this day. The memorandum will now be registered as an appeal from original order against the order of the Subordinate Judge passed on the 6th June 1908; the paper-book will be prepared and the appeal heard in due course. We order accordingly.
7. As the objection to jurisdiction was not raised before the District Judge, we direct, that each party pay his own costs both here and in the Court of Appeal below.