Narayan, J.:— These are plaintiff's second appeals in suits for rent. The plaintiff had originally claimed the value of produce rent for the years 1350 and 1351, but as during the pendency of the suits the produce rent was commuted into cash rent, the plaintiff sought an amendment of the plaint and claimed cash rent for the years 1348 to 1351. The prayer was allowed and the jama of Rs. 9-3-6 per acre as fixed by the Rent Commutation Officer on 20th September, 1939, was inserted in the plaint by an order of the learned Munsif dated 19th April, 1945. An appeal having been preferred against the order of the Rent Commutation Officer fixing at Rs. 9-3-6 per acre, the order of the Rent Commutation Officer was confirmed by the Collector on 4th January, 1941. Against the order of the Collector the tenants as well as the landlord filed Revision applications before the Commissioner, and the Commissioner remanded the cases with the direction that fresh rates should be fixed after a local inspection. After remand, the Rent Commutation Officer by an order dated 6th January, 1944, reduced the rates as originally fixed, and a revised schedule was accordingly prepared. The claim having been made on the basis of the first schedule the defendants pleaded that the plaintiff was not entitled to a higher jama than the one fixed by the Commutation Officer after remand. The learned Munsif overruled this contention and decreed the plaintiff's claim at the jama as originally fixed by the Rent Commutation Officer. On appeal the learned Subordinate Judge dismissed the claim for 1348 as time-barred and decreed the claim for the remaining years at the reduced rate which had been entered in the second schedule.

The contention on behalf of the plaintiff-appellant before us is that the order of the Commissioner remanding for cases for fixing fresh rates is ultra vires, inasmuch as according to the Statute the order of the Collector is final in all such matters, and neither the Commissioner nor the Board of Revenue has jurisdiction to question, modify or reverse that order.

According to sub-section (6)(a) of section 40 of the Bihar Tenancy Act an appeal shall lie from an order referred to in sub-section (5) of section 40 to the Collector of the district or to any officer especially empowered by the Provincial Government by notification to hear such appeals, if such order is passed by any officer other than the Collector of a district, and the decision of the Collector of the district or of any officer so empowered on any such appeal shall be final. The Statute thus does not provide for any appeal or Revision application to the Commissioner or the Board of Revenue. Section 112B of the Bihar Tenancy Act which provides for an appeal from an order made under section 112A contains similar provisions, and it was ruled by this Court in Thakur Radhakrishnaji v. Ramkhelawan that because of the provisions of section 112B, Bihar Tenancy Act, which enacts that the order of the Collector, or the prescribed authority, on appeal from the decision of the Rent Reduction Officer shall be final, neither the Commissioner nor the Board of Revenue, has jurisdiction to question, modify or reverse that order, and that any reversal or modification by them would be ultra vires. As was pointed out by Agarwala, J. (as he then was) in this decision where the Legislature has declared the decision of a particular officer or tribunal to be final, no other tribunal can substitute its own decision for the decision of that tribunal and that even if the Commissioner or the Board of Revenue has the power of superintendence over Rent Reduction Officers and the Collector of the district in appeal, that power is confined to preventing such officers from exercising a jurisdiction not conferred on them or compelling them to exercise a jurisdiction which they have omitted to exercise. There is no power in the Commissioner or the Board of Revenue even if they consider that the decision of the subordinate tribunal is wrong in law or in fact to come to another decision or to substitute their own, decision in place of the decision of the subordinate tribunal. Their Lordships in this case referred with approval to the decision of Rankin, C.J in Manmathanath Biswas v. Emperor in which their Lordships of the Calcutta High Court had to consider the power of superintendence as laid down in section 107 of the Government of India Act. The principle laid down by Rankin, C.J in this case would be fully applicable to a case in which we have to consider the power of superintendence as conferred on the Commissioner or the Board of Revenue over Rent Reduction Officers and the Elector of the district in appeal. The following observation of Rankin, C.J appears to be important for our present purpose:

“I agree with Roe, J. in the Patna case that superintendence is not a legal fiction, whereby a High Court Judge is vested with omnipotence, but, is as Norman, J. had said a term having a legal force and signification. The general superintendence which this Court has over all jurisdictions subject to appeal is a duty to keep them within the bounds of their authority, to see that they do what their duty requires and that they do it in a legal manner. It does not involve responsibility for the correctness of their decisions, either in fact or law. Thus in England, a mandamus to hear and determine according to law does not mean that the inferior tribunal is ordered to give, a correct decision, nor does prohibition lie to correct a wrong decision on the merits. The limits put upon appeals by the Indian legislature are a part of the judicial system which it is just as necessary for this Court to enforce under section 107, as any other feature of that system.”

In Kumar Rani Sayeeda Khatun v. Bharosa Singh, which is an unreported decision dated 6th October, 1948 in Letters Patent Appeal no. 49 of 1947 and in which their Lordships had to consider section 22 of the Bihar Restoration of Bakasht Lands and Reduction of Arrears of Rent Act (Act IX of 1938) which lays down that the order of the Revenue Officer shall be final, the decision in Thakur Radhakrishnaji v. Ramkhelawan was relied on, and it was held mainly on the strength of this decision that the Commissioner's order and the order passed subsequent to the order of remand by the Commissioner who had proceeded to revise the orders of the subordinate tribunal were wholly without jurisdiction and complete nullities. It is now, therefore, well settled that the power of superintendence conferred on the Board of Revenue or the Commissioner and as provided in the rules framed according to the provision's of the Bihar Tenancy Act is not a power to interfere judicially and if there be any rule purporting to confer on the Commissioner or the Board of Revenue powers to interfere judicially, then that rule would be ultra vires of the Statute. Where the object of the Statute is clearly to secure the finality of a decision no question of a further appeal or of an application in revision against that decision arises. It cannot, therefore, be urged in this case that the Commissioner before whom applications in revision had been filed by the tenants as well as by the landlord had a jurisdiction to interfere with the decision of the Collector in appeal. It is an admitted position that the order of remand passed by the Commissioner on the application which had been preferred before him was an order on the merits, and therefore what was laid down by this Court in Tehal v. Lachoo can have no application in this case. What was decided in this case was that when the order of the Collector in the rent reduction proceeding is vacated by a Court of competent jurisdiction (Board of Revenue) it cannot stand in the way of the Civil Court coming to its own independent conclusion on the question whether the holding was held on a cash rental or on bhaoli basis. As was pointed out by Fazl Ali, C.J (as he then was) the order of the Board of Revenue in that case was that the Rent Reduction Officer should not have reduced the rent of the holdings because he had no jurisdiction to reduce the rent of bhaoli holdings. Because the Board of Revenue and the Commissioner have got the power of superintendence they can interfere when they find that a Rent Reduction Officer has acted without jurisdiction. This decision cannot be regarded as an authority to support the view that the power of superintendence conferred on the Commissioner or the Board of Revenue gives them the jurisdiction to interfere with the decision of the subordinate tribunal on merits.

It has however, been vehemently contended in this case that because the plaintiff-landlord had consented to the interference by the Commissioner it is not open to him to turn round and say that the Commissioner had no jurisdiction to interfere, and the principle that a man cannot approbate and reprobate has been relied upon. Apart from filing an application in revision before the Commissioner what the plaintiff-landlord did was that after the order of remand had been passed by the Commissioner he realised produce rents for these holdings by distraint proceedings treating these holdings to be bhaoli. The learned Subordinate Judge was of the opinion that because the plaintiff had taken advantage of the remand order passed by the Commissioner and had realised produce rent for these holdings, he had waived the rights which had accrued to, him by the previous commutation order confirmed in appeal by the Collector. But, in my opinion, when the order, of the Commissioner was not an order of a Court having competent jurisdiction to decide the question raised it cannot be pleaded as an estoppel, and neither acquiescence nor request nor application on the part of the plaintiff-landlord would give the Commissioner a jurisdiction over the subject-matter of the cause. This is a case in which the want of jurisdiction appeared on the face of the proceedings and the question of approbating and reprobating does not at all arise. The objection to jurisdiction could not in this case depend on some matter of fact as to which any of the parties to the cause or the Court concerned itself might have been deceived or misled or might have unconsciously neglected to observe. When the Commissioner made the order of remand he must or ought to have known that he was acting beyond his jurisdiction. “It is of the very root of the idea, of the Tight of the State to settle the disputes of individuals that the machinery employed for the purpose should itself be constituted according to law.” Lord Watson in the case of Ledgard v. Bull pointed out the circumstances under which there can be a waiver of a right to complain of a want of jurisdiction, and his Lordship observed as follows:—

“The Defendant pleads that there was no jurisdiction in respect that the suit was instituted before a Court incompetent to entertain it; and that the order of transference was also incompetently made. The District Judge was perfectly competent to entertain and try the suit if it were competently brought; and their Lordships do not doubt that in such a case a defendant may be barred by his own conduct from objecting to irregularities in the institution of the suit. When the Judge has no inherent jurisdiction over the subject-matter of a suit, the parties cannot by their mutual consent convert it into a proper judicial process, although they may constitute the Judge their arbitrator, and be bound by his decision on the merits when these are submitted to him. But there are numerous authorities which establish that when, in a cause which the Judge is competent to try, the parties without objection join issue, and go to trial upon the merits, the defendant cannot subsequently dispute his jurisdiction upon the ground that there were irregularities in the initial procedure which, if objected to at the time, would have led to the dismissal of the suit”.

There cannot be the least doubt that in this present case there was an inherent incompetency to decide the questions that had been raised before him and therefore, according to the view taken by their Lordships of the Judicial Committee in Ledgard v. Bull and Meenakshi Naidoo v. Subramaniya Sastri no amount of consent by the plaintiff-landlord could confer upon the Commissioner the jurisdiction which he never possessed. The latter case was a case in which the High Court of Madras had interfered with the order of the District Judge of Madura by which the Judge had acted under the powers given to him by Act XX of 1863 which is an Act to enable the Government to divest itself of the management of religious endowments and which is commonly known as the Pagoda Act. In this case also the contention before their Lordships was that the appellants before their Lord ships by reason of the course which they had pursued in the High Court had waived the right which they otherwise had to raise the question of want of jurisdiction. Their Lordships held that this view was untenable and no amount of consent under such circumstances could confer jurisdiction where none existed. In my opinion, these two Privy Council decisions are quite in point and are conclusive of the contention raised by the respondents before us. In the case of Juttendromohun Tagore v. Ganendromohun Tagore their Lordships of the Judicial Committee observed as follows:—“The Plaintiff, however, is not bound by an admission of a point of law, nor precluded from asserting the contrary, in order to obtain the relief to which, upon a true construction of the law, he may appear to be entitled”. A Single Judge of the Allahabad High Court relying on this passage and also on another passage from another Privy Council decision held in Jagwant Singh v. Silan Singh that an admission on a point of law is not an admission of a “thing” so as to make the admission matter of estoppel within the meaning of section 115 of the Evidence Act. The importance of this Single Judge's decision is that it was referred to with approval by a Division Bench of this Court in Bimalabala Sinha… v. Deb Kinkar Ghosh….. In a Division Bench decision of the Allahabad High Court in Mahabir Singh v. Narain Tewari the well-known principle that there can be no estoppel against the Statute was reiterated, and it was pointed out that if a question of estoppel were dependent on the determination of some facts, a party may be estopped from pleading it, but that if it is patent and apparent on the record; then even if there were estoppel against a party, a Court would not be estopped from considering the point. Sulaiman, Ag. C.J, further observed that the principle of estoppel cannot be allowed to defeat the provisions of a statutory enactment which affects the jurisdiction of a Court, as a party cannot by its admission or previous conduct confer jurisdiction on a Court where none exists. In Halsbury's Laws of England, Second Edition, Volume 13, the law on the point has been thus summed up: “In order that estoppel by record may arise out of a judgment, the Court which pronounced the judgment must have had jurisdiction to do so. The lack of jurisdiction deprives the judgment of any effect, whether by estoppel or otherwise; and this rule applies even where the party alleged to be estopped himself sought the assistance of the Court whose jurisdiction is impugned”. Being fortified by these authorities, I am not able to agree with the view of law taken by the learned Subordinate Judge and I must hold in disagreement with the learned Subordinate Judge that the order of remand made by the Commissioner and all the subsequent proceedings in consequence of the order or remand were without jurisdiction and ultra vires. There can be no estoppel against a Statute and the doctrine of approbate and reprobate which applies only to the conduct of the parties is not applicable in this case, the conduct of the parties being immaterial when there is complete lack of jurisdiction. Without meaning any disrespect to the argument advanced before us by the respondents' learned Counsel I think only three of the decisions referred to by the learned Counsel deserve notice. The learned Counsel has referred to a Privy Council case in Ambu Nair v. Kelu Nair in which the following observations of Honevman, J. in Smith v. Baker were quoted. Honeyman, J. has observed: “A party cannot at the same time blow not and cold. He cannot say at one time that the transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid, and at another say it is void for the purpose of securing some further advantage.” This observation was quoted by the Judicial Committee in a case in which the main question was the construction of a compromise decree. It was held that the terms of the compromise decree did not appear to show an intention that the remedy by execution should alone be open to the mortgagor, and that the mortgagee was estopped from contending that if did so, because in a previous suit he had recognised that the right to redeem was then subsisting, and thereby had obtained payment under a simple mortgage. On these facts it was held by their Lordships that the mortgagee could not both approbate and reprobate the existence of the right. As already pointed out, their Lordships found that the terms of the compromise decree did not indicate that it was the intention of the parties that the remedy by execution should alone be open to the mortgagors. It was a question of fact whether the right to redeem was subsisting or not, and treating the right as subsisting the mortgagee had obtained payment under a simple mortgage. It was in these circumstances that their Lordships found that the mortgagee could not both approbate and reprobate. I think, this ruling has got no application in this case. In Moharaj Kumar Bindaswari Charan Sinah v. Thakur Lakpat Nath Sinah, the Calcutta High Court held that whee a Court purporting to act under section 47. Civil Procedure Code, directed execution to proceed against a minor and an appeal was preferred on the ground that the decree sought to be executed did not bind the minor, the fact that on the appellant's own showing the minor would not be a party to the decree within the meaning of section 47, and thus the order would not be an order under section 47 would not make the appeal incompetent. Their Lordships have observed that when jurisdiction has been usurped by a Court an appeal against its order cannot be successfully defeated on the ground that the order has been made without jurisdiction and that a party who had induced a Court to act without jurisdiction could not be permitted, when the validity of the order made for his benefit was challenged by way of appeal to take up an inconsistent position and to defeat the appeal by showing that the order was made without jurisdiction. In this case the question was the competency of the appeal, and I do not think the observation of their Lordships on the facts of that particular case can be applied in this present case before us. In Ram Khelawan Singh v. Maharajah of Benares the decision was to the effect that an appellant who had got a memo, of appeal, returned by the Commissioner to the High Court was estopped from contending that the High Court was not the proper forum of appeal. Certainty, if a person contends that the Commissioner is not competent to hear the appeal and on his insistence the memorandum of appeal is returned by the Commissioner to the High Court, he cannot thereafter be allowed to contend that the High Court has no jurisdiction to hear the appeal. Every Court has the jurisdiction to decide whether it is competent to hear a particular cause or not, if the question of jurisdiction is raised and agitated before it; and in this case the Commissioner accepted the contention that the appeal should have been filed in the High Court and consequently the memorandum of appeal was returned and presented to the High Court. The same person who had got the memorandum of appeal returned could not thereafter contend that the High Court had no jurisdiction to hear the appeal. This decision also is of little help to us in this case. The respondents' learned Counsel could not support the view of the learned Subordinate Judge that every Court has inherent power to revise or alter its own order and that even if the Commissioner had no jurisdiction in the matter, the Rent Commutation Officer was justified in preparing another schedule containing different rates. The learned Subordinate Judge further appears to have confused between irregularity and inherent lack of jurisdiction.

In the result, these appeals are allowed in part and the suits are decreed in part for the rents of the years 1349 to 1351 at the rates originally fixed by the Rent Commutation Officer and indicated in the first commutation schedule, with cess and interest and corresponding costs throughout and future interest at 6 per cent, per annum.

Sinha, J.:— I agree.

S.H

Appeals allowed.