C.P Sinha, J.:— This is a defendant's appeal which arises out of a suit filed by the plaintiff for a declaration that the order of eviction by the Commissioner of the Patna Division, dated the 29th August, 1947, passed under the Bihar Buildings Control Act, 1947, is ultra vires, null and void, without jurisdiction and not binding on the plaintiff; the plaintiff has also prayed for the issue of a permanent injunction restraining the defendant from ousting the plaintiff from any portion of holding no. 23, circle no. 16, ward no. 8, situate in mahalla Subzibagh of Bankipur.

The first Court dismissed the suit, but it has been decreed on appeal by Mr. K.K Dutta, Additional Subordinate Judge, 2nd Court, Patna, by his judgment, dated the 23rd February, 1948.

The plaintiff's case is that the entire holding no. 23 as well as holding no. 22, which is adjacent north of it, belonged to Messrs T.C Palit and S.C Palit, that out of these two holdings, holding no. 22 was the tenancy of the defendant-appellant and the northern portion of holding no. 23 was in the tenancy of one Lachhmi Mistry and the southern portion of holding no. 23, which is the portion in dispute, has been in the tenancy of the plaintiff's family since several generations and the plaintiff holds a shop and also lives in it with his family. It is alleged by the plaintiff that the defendant took a permanent settlement of holding no. 22 as well as the northern portion of holding no. 23 from the proprietors by a deed, dated the 6th August, 1946, and thereafter the defendant applied to the House Controller, Patna, for evicting the plaintiff on the allegation that he had purchased both the holdings nos. 22 and 23. The House Controller bad rejected the application of the defendant, but, on appeal, the Commissioner has ordered the eviction of the plaintiff. The plaintiff alleges that he is a permanent tenant of the holding and that there is no relationship of landlord and tenant between the defendant and the plaintiff and, therefore, according to him, the Bihar Buildings Control Act, 1947, had no application and, consequently, the order of the Commissioner under that Act is without jurisdiction.

The defendant denied that the plaintiff had, a permanent tenancy in the disputed katra and also alleged that by the aforesaid deed the defendant has acquired interest in the entire holding no. 23 including the katra in the possession of the plaintiff except to the extent of 3 feet out of that katra which is in the plaintiff's occupation. The defendant pleaded further that the order passed by the Commissioner was a valid order within his jurisdiction and, as such, the suit was barred under the provisions of the Act.

The learned lower appellate court has come to the following findings: that the Civil Court, in spite of the provisions contained in section 18, clause (3) of the Bihar Buildings Control Act, has the jurisdiction to go into the question whether the Commissioner's order has been passed against the provisions of this Act or in violation of the fundamental principles of judicial procedure and the Civil Court has jurisdiction to consider whether the order of the Commissioner under that Act is ultra vires upon any of those grounds. It has been found further that the plaintiff has failed to prove that he had a permanent tenancy in the disputed katra. The Court below has also found ‘that the disputed katra comprises the southern portion of municipal holding no. 23. The defendant had admitted that the proprietors, namely, the Palit brothers, had made a permanent settlement in favour of the defendant by virtue of the deed, exhibit A, dated the 6th August 1946. The Court below, upon a comparison of the boundaries and upon the construction of the deed (exhibit A) has found that the permanent settlement with the defendant includes the whole of the disputed katra excepting an area of 5½ feet towards the south. He has found further that there is no relationship of landlord and tenant between the defendant and the plaintiff with respect to that part of the disputed katra, namely, the southern portion up to a length of 5½ feet and upon that finding, he has held that the order of the Commissioner, evicting the plaintiff is evidently without jurisdiction on that ground alone so far at least as that portion of the katra is concerned. According to the Court below, the entire katra constitutes only one room and it is not possible to evict the plaintiff from any particular portion of it without evicting him from the whole and in that view of the matter, he has decreed the suit, holding that, as the defendant had interest with respect to only a part of the katra and because the Palit brothers, to whom the rest of the katra belonged, did not join in the application for eviction, the application was not on behalf of the landlords of the entire katra and therefore, there was no valid application under section 11, clause (3) of the Act and, consequently, the Commissioner had no jurisdiction to pass any order of eviction on such an application.

It has been contended on behalf of the appellant that the Civil Court has no jurisdiction to set aside the order of the Commissioner under the Bihar Buildings Control Act, 1947, on the findings arrived at by the Court below. It is also contended that the katra is only a sort of a verandah which is enclosed by shutters and that there is no difficulty in evicting the plaintiff from that portion of the katra of which the defendant had taken settlement and further that the defendant is the sole landlord so far as that portion of the katra is concerned and it is not a case of joint landlords.

The Bihar. Buildings Control Act, 1947, is a special Act which the Legislature has enacted to meet the emergency created by the scarcity of house accommodation and to prevent, as far as possible, the spiral rise in the rent of houses. The statute is self-contained and has created a special tribunal for deciding the rights and liabilities of the parties under that Act and has also provided for appeal against orders passed by the House Controller. This Act has barred the jurisdiction of the Civil Courts under section 18 of the Act. But it must be conceded, in spite of such a bar, that, if the House Controller or the Commissioner acts without jurisdiction or in excess of the jurisdiction as given to them under the Act, the Civil Court has jurisdiction to determine whether or not an order passed by the House Controller or the Commissioner is without jurisdiction or in excess of the jurisdiction conferred upon them by the Act. Where the liability is statutory, the party must adopt the remedy given to him by the statute. In the light of these observations, I would now address myself to the consideration of the question whether the Commissioner in this case has acted without jurisdiction or in excess of the jurisdiction as given to him under the Act.

Before I consider that question, I would like to clear the ground of fact. Upon the finding of the Court below, the defendant has acquired a permanent right under his deed (exhibit A) to the extent of 64½ feet in holding no. 23 and that the remaining area to the extent of 5½ feet in that holding towards the south does not belong to him. The Palit brothers, the proprietors, therefore, have no interest in the said holding no. 23 except to the extent of 5½ feet. The katra, as appears from its very nature, can be held by different persons in specified parts without disturbing the possession of the respective holders of the other parts.

When an application for eviction is made under the Act, the House Controller or the Commissioner, as the case might be, has to find out whether the parties stand in the relation of landlord and tenant. That would be the first question to decide before any action is taken under that Act. In the present case it was not disputed before the House Controller or the. Commissioner that the plaintiff was not the tenant of the defendant and in that view, the House Controller and the Commissioner had no necessity of coming to an express finding on that, point. The parties before the House Controller proceeded on the footing that they answered the definition of “tenant” and “landlord” as given in that Act and that there existed a relationship of landlord and tenant between them. But supposing this question had been raised before them, was it open to those authorities to come to a finding on that point to enable them to apply the provisions of the Bihar Buildings Control Act? If the answer is in the affirmative, it must be held that the House Control authorities had jurisdiction to decide that question of fact. If that be so, can it be said that the tribunal has exceeded its jurisdiction as given under the Act or that it had no jurisdiction to decide that matter. In my view, if a court or a tribunal with limited jurisdiction is given authority under law to decide a particular matter, but the decision of that particular matter depends upon certain preliminary findings of fact, that tribunal must have jurisdiction to decide those preliminary points of fact, and the Civil Court will have no jurisdiction to go into the correctness or otherwise of the findings of the tribunal in regard to those preliminary questions of fact.

I would now consider the cases which have been cited at the Bar on the question of the jurisdiction of Civil Courts to review or revise the decision of a tribunal of limited jurisdiction. In the case of Ishan Chandra v. Moomraj Khan(1) the following observations of Ghose, J. are very much apposite to the question before this Court: “There cannot be any question that a decree passed without jurisdiction is, a nullity. But the expression, ‘jurisdiction’ has not unoften been used with ambiguity and the distinction between a judgment where jurisdiction is assumed by the Court where there is absolute want of it and where the Court in the exercise of its jurisdiction acted wrongly in disregard of the law has not always been borne in mind. This want of discrimination in the use of the term has resulted in a good deal of confusion. The distinction between a defect of jurisdiction and an error or irregularity in procedure is pointed out in Hawes on the Jurisdiction of Courts thus:— ‘In the former case, the whole proceeding is corum non judice and void; in the latter the proceeding cannot be impugned in a collateral action, even though it be erroneous upon it's face, and even though it relates to a fact which in a former stage of the proceeding might have been essential to confer jurisdiction. It is examinable only on a direct proceeding as by an appeal or by a proceeding in the nature of an appeal, and where there is no remedy of that kind, it concludes for ever’—”. The aforesaid observations of Ghose, J. and the quotation from Hawes on the Jurisdiction of Courts, in my opinion, must conclude the matter. This case has been followed in R. Krishnamurthy v. S. Parthasarathy. In this case a similar question had arisen for decision, namely, whether the Civil Court can entertain a, suit to set aside an order passed under the Madras Buildings (Lease and Rent Control) Act (XV of 1946). The Question raised, in that case was that under the Madras Act the decision of the tribunal was without jurisdiction because notice to quit had not been given before action was taken under that Act for the eviction of the tenant, and it was contended that, in the absence of a notice to quit, the Rent Controller under the Madras Act had no jurisdiction to deal with the application for eviction of the tenant, and upon a review of several cases of different High Courts, it was held in that case that “if the question which is alleged to create the want of jurisdiction is one which the Court is bound to decide, the matter is not one relating to jurisdiction; if there is any error in the decision, it can only be remedied, by an appeal or other proceeding known to law”. In Mangtu Lal Bagaria v. The Secretary of State for India in Council(2) a similar view was taken though the facts were different. The question in that case was whether a Civil Court was entitled to entertain a suit to set aside the decision of the Revenue Court under section 45 of the Bengal Cess Act (IX of 1880) to the effect that cess was recoverable, and His Lordship Fazl Ali, J., with whom Harries, C.J agreed, made the following observations: “The question whether cess was recoverable in this case under section 45 of the Act was one to be decided by the Revenue Court which issued the certificate and, if that Court has decided, rightly or wrongly, that the cess was recoverable and the claim made for the recovery was not barred by limitation a suit cannot be entertained in a Civil Court to set aside that decision. A Civil Court can entertain a suit only if the order of the Revenue Court is without jurisdiction and not because the decision pronounced by the Court is not correct”. Mr. Chatterji, the learned Counsel on behalf of the respondent, had himself cited the case in A.I.R 1949 Madras, 780, on another point, which I will consider later, but that case is against him on the question, of jurisdiction, as I have already indicated. He also cited the case of Secretary of State v. Mask and Co. and relied upon a passage at page 110 which reads as follows: “It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction, to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal have not acted in conformity with the fundamental principles of judicial procedure”. In my judgment, this case does not differ in principle from the other cases cited above in this connection. In the present Act, with which we are concerned here the jurisdiction of the Civil Court is excluded in the following terms which are to be found in section 18(3) of the Act:

“The decision of the Commissioner and, subject only to such decision, an order of the Controller shall be final and shall not be liable to be questioned in any Court of law whether in a suit or other proceeding by way of appeal or revision”.

I would, therefore, hold that the Civil Court had no jurisdiction to override the decision of the Commissioner under the Bihar Act of 1947. But the decision of the Commissioner can be final only to the extent of the defendant's portion of holding no. 23. ‘On the finding of the Court below, the defendant had no interest in the 5½ feet of the holding to the south of it and, therefore, it was beyond the subject-matter of the decision of the Commissioner and as I have said above, this 5½ feet of holding no. 23 is severable from the rest and there is no difficulty in giving relief to the plaintiff to the extent of that portion.

Mr. Chatterji on behalf of the respondent has contended that the jurisdiction of the House Controller and the Commissioner was ousted from another point of view, namely, that, the Palit brothers and the defendant being the joint lessors, no order of eviction could have been passed in law upon the application of only one of the joint lessors, namely, the defendant, and has relied upon a number of authorities, namely, Baraboni Coal Concern, Ltd. v. Gokulananda Mohanta Thakur, Satyesh Chandra Sarkar v. Haji Jillar Rahman, Jagdishwar Dayal Singh v. Pathak Dwarka Singh(3) and Gopal Ram Mohuri v. Dhakeshwar Pershad Narain Singh(4), and the definition of ‘landlord’ and ‘tenant’ as given in the Act. There are two answers to this contention. One is that the Palit brothers and the defendant were not the joint lessors inasmuch as, by the settlement as embodied in exhibit A, the Palit brothers had made a permanent settlement of holding no. 22 and the major part of holding no. 23 with the defendant and, therefore, the defendant was the sole landlord of the plaintiff so far as that portion was concerned. Therefore, in terms, those authorities have no application. The other answer is that, if, as I have held above, the House Controller and the Commissioner had jurisdiction to decide the question of eviction under the Act, their decision, either on law or on fact, right or wrong, was declared to be final under that Act and, even if the decision was opposed to law, the Civil Court can have no jurisdiction to go into that decision in a collateral proceeding. If the party felt aggrieved, he must find his remedy within the four corners of that Act and, if no second appeal was provided under that Act he can have no other remedy which is barred under section 18(3) of the Act.

Mr. Chatterji has also faintly argued that the provisions of section 111 of the Transfer of Property Act have not been abrogated by the Bihar Buildings Control Act. He contends that the tenancy of the defendant has not been determined in this case in accordance with the provisions of the Transfer of Property Act: The short answer to this contention is that section 11 of the Bihar Buildings Control Act says in section 11(1) that

“Not Withstanding anything contained in any agreement or law is the contrary and subject to the provisions of section 12, where a tenant is in possession of a building he shall not be liable to be evicted therefrom whether in execution of decree or otherwise except……….”

upon certain, specified conditions mentioned in that section. This Act is a self-contained Act. It has provided the conditions of ejectment of a tenant. It has made, provision for deposit of rent and for obtaining receipt by the tenant on payment of rent, provided the forum and has also provided for appeal from the order of the House Controller, Mr. Chatterji has relied upon the case of Parthasarathy v. Krishnamoorthy where the question was whether a notice to quit was necessary to give jurisdiction to the Rent Controller under the Madras-Buildings Act to order eviction under section 7 of that Act. Subba Rao, J. held that the Rent Controller had no jurisdiction to order eviction under that section where there had been no previous or antecedent determination of the tenancy in accordance with, the provisions of the Transfer of Property Act. This decision was set aside in the Letters Patent appeal against that judgment, and it was held that section 111(A) of the Transfer of Property Act had no place in the scheme of the procedure laid down in section 7 and that an application for eviction can be made to the Rent Controller before the tenancy has been determined by notice to quit. The relevant extract of section 7 of the Madras Act [The Madras Buildings (Lease and Rent Control) Act—XV of 1946] reads as follows:

“a tenant in possession of a building shall not be evicted there from…….before……the termination of the tenancy, except in accordance with the provisions of this section.”

The Bihar Act (section 11) is couched in somewhat similar terms. It has laid down the condition or conditions on which a tenant could be evicted from a building, and I do not see any reason to differ from the decision of the Madras Court on this point, and I hold that section 111 of the Transfer of Property Act has no application to the proceeding for eviction under the Bihar Buildings Control Act. Mr. Chatterji had also cited a case reported in Balmakund v. Harinarain, but in my judgment, it has got no relevancy so far as the present case is concerned. That was a case which has interpreted the word “occupation” occurring in sub-section (3) of section 11 of the Bihar Buildings Control Act. No other points were raised before this Court by any of the parties.

I would accordingly hold that the order of the Commissioner, so far as the defendant's portion of the holding no. 23 is concerned, was a final order and that the Civil Court had no jurisdiction to go into that matter again. The result is that the judgment of the court below is set aside and the suit is dismissed in respect of the defendant's portion in holding no. 23 namely, the whole of holding no. 23 excepting an area of 5½ feet in length towards the southern portion of holding no. 23. The defendant will be entitled to his costs in proportion to his success throughout, that is, three-fourths of the costs.

Sinha, J.:— I agree.

Appeal partly allowed.

G.N.P