Manohar Lall, J.:— In this case the Darbhanga Municipality appeals against the concurrent decisions of the Courts below by which they have decreed the suit instituted by the plaintiffs for a declaration that the appellant be restrained from realising a personal tax from the plaintiffs as occupiers of a holding within the municipality. The principal question for determination is whether the civil Courts have jurisdiction to entertain such a suit. The plaintiffs' case was that they are father and son governed by the Dayabhag School of Hindu law, that plaintiff 1, the father, is the sole owner and occupier of holding No. 299 within the Municipality of Darbhanga and that plaintiff 2 does not occupy any holding either solely or jointly with his father but is living therein by sufferance. The municipality issued a demand notice on 27th January 1939 by which the plaintiffs were required to pay Rs. 37 each as the tax imposed under Section 82(1)(a) of the Bihar and Orissa Municipal Act. It is urged that the imposition is ultra vires so far as plaintiff 2 is concerned because he is not a person either in sole or joint occupation of the holding within the municipality and that the joint assessment, assuming plaintiff 2 is a joint occupier of the holding, is also ultra vires. The defendant challenged the jurisdiction of the civil Court to entertain the suit and relied upon the provisions of Sections 116, 117 and 119, Bihar and Orissa Municipal Act (Act VII of 1922), hereinafter to be called the Act, and laid stress on the provisions of S. 116 which provides a remedy to the person dissatisfied to apply to the Commissioners to exempt the aggrieved party from assessment or tax—in this case the plaintiffs admittedly did not appeal to the Commissioners. The Courts below upon a consideration of a number of cases which were decided by the Calcutta High Court under the corresponding provisions of the Bengal Municipal Act have held that the civil Courts have jurisdiction to entertain such a suit. They have also held that plaintiff 2 does not occupy any holding solely or jointly with his father within the municipality and in the alternative that the joint assessment of the two plaintiffs was ultra vires. Hence the second appeal to this Court.

2. Mr. L.K Jha, who appears for the municipality contends that the Courts below are in error in every one of their conclusions. The question whether a civil Court has jurisdiction to decide whether the assessment on a person is ultra vires on the ground that the person is not an occupier of any holding has been the subject of consideration of a large number of cases in the Calcutta High Court where it has been uniformly held that if it is found that the assessee is not an occupier of a holding within the municipality, the assessment is ultra vires and can be questioned by the civil Courts. As this Court has adopted the view that where there is a cursus curiae of the Calcutta High Court upon a certain question, this Court will ordinarily follow those decisions: see 1 Pat. L.J 573,1 2 Pat. L.J 221,2 3 Pat. L.J 639,3 we are bound to accept the correctness of that view. But out of respect to Mr. Jha's strenuous argument I propose to examine the situation again.

3. In the leading case in 21 Cal. 319,4 the identical question came to be considered. Rampini J. sitting as a Single Judge took the view that the civil Courts could interfere when a municipality taxed people whom they had no jurisdiction to tax. In that case it was found as a fact that the plaintiffs did not occupy any holding within the municipality, but nevertheless the defendant municipality had taxed them. Against this decision there was an appeal under the Letters Patent to the Calcutta High Court which was decided by Sir Comer Petheram, C.J and Beverley J. The judgment was delivered by Beverley, J. who examined the various sections of the Municipal Act at great length and pointed out that where there is a dispute as to whether the person assessed to tax does or does not occupy the holding, the dispute can be decided by the civil Court—the assessment of the municipality was set aside. In later cases the right of the aggrieved party in such cases to go to the civil Court was never questioned: see 2 C.W.N 689,5 26 C.W.N 311,6 32 C.W.N 9407 and A.I.R 1923 Cal. 5918—(a judgment of a Single Judge). I have not come across any direct case in our High Court. In 13 Pat. 6939 Wort J. made these observations:

“It is now settled law that in circumstances which would show that the Commissioners have acted ultra vires an action would lie to set aside the assessment.”

4. Dhavle J. at p. 711 observed that if the power given by S. 99(b) to the Municipal Commissioners in the matter of determining whether properties are held under one title “is exercised in accordance with the Act (and the contrary has not been established in these appeals), it does not seem to me that the Courts can interfere under our Municipal Act on the ground that the municipality ought to have carved out similar holdings….”

5. Attention was drawn by Mr. B.C De to the case in 67 I.A 22210 where their Lordships had to examine the question whether the jurisdiction of a civil Court was excluded by reason of the provisions of the Sea Customs Act (8 of 1878). Reliance was placed upon the observations of Lord Thankerton, who delivered the judgment of the board, at p. 236:

“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 has not acted in conformity with the fundamental principles of judicial procedure.”

6. It is useful to recall the well-known observations of Esher, M.R in (1884-90) 2 Tax. Cas. 33211 at page 351:

When an inferior Court, or an inferior tribunal, or an inferior body which is trusted by the Legislature to come to a decision on facts is constituted by Act of Parliament for the first time, the Legislature has to consider what power it will give to those persons. It may say if a certain state of facts exist before you have anything to do with the matter, then you will have jurisdiction to do what we will tell you to do, hut you shall not have jurisdiction otherwise, then the existence of such facts is not for them to decide, and if they exercise the jurisdiction which is given them without the existence of those preliminary facts which they have not to decide upon, you may question the exercise of their jurisdiction after wards, and hold that they have no jurisdiction to do what they did. They would then have done all that was entrusted to them under circumstances when that jurisdiction which was to be entrusted to them did not exist—the preliminary facts did not exist—but they had not to decide upon the preliminary facts; they had no jurisdiction to decide upon the preliminary facts; hut there is another state of things. The Legislature may, if the matter will present some doubt, entrust them not with two jurisdictions, in my opinion — with one jurisdiction—but a jurisdiction which comprises and includes two sets of facts. They have the jurisdiction given to them to decide whether the preliminary set of facts exists, which, if they do exist, will entitle them to go farther and to do something mote. If the Legislature gives them that, I do not sail it a double jurisdiction, but that comprehensive jurisdiction, it is all one jurisdiction. They have jurisdiction with regard to what you may call the preliminary facts, the first set of facts — the same jurisdiction and just as much jurisdiction as they have with regard to the second.”

7. Lindley, L.J at p. 355 doubted whether the general Commissioners are the authorities finally to decide that point and he thought that this was a difficult question. In 4 Pat. L.J 34012 Mulliek J. observed at page 342 that an erroneous decision on a question of law or fact after jurisdiction has been once legally assumed would not be a ground for interference under Section 115 of the CPC, but if the decision is the very basis and foundation of jurisdiction in its limited sense as distinguished from powers it at once comes within the purview of the section, and relied on the judgment of their Lordships of the Judicial Committee in 44 I.A 261.13 Reference may also be made to the case in 67 I.A 1,14 a case under the Charitable and Religious Trusts Act, where the question for decision was whether an order made in a summary proceeding can be treated as final on the principle of res judicata so as to bar a regular suit. Sir George Rankin in delivering the judgment of the board observed at page 5:

“The existence of a public trust is the foundation of the proceedings authorised by S. 3 of the Act: prima facie while the District Judge may have to come to a decision upon this point in order to satisfy himself on the question of his own jurisdiction, he cannot by an erroneous decision thereon give himself jurisdiction.”

8. As an illustration take the case of a revenue sale by a Collector under the provisions of the Revenue Sales Act. It is well settles now that the Collector cannot give himself jurisdiction to sell the estate by wrongly deciding that a certain estate was in arrears notwithstanding the fact that this objection was not raised in appeal to the Commissioner under s. 33. Upon a review of these authorities and specially having regard to the view of the Calcutta High Court, I must hold that the civil Courts have jurisdiction to inquire whether the plaintiff was an occupier of a holding within the municipality, as the jurisdiction of the municipality to assess a person depends upon the decision whether a person is an occupier, and the Municipal Commissioners cannot give themselves jurisdiction to assess a person who is not an occupier by a wrong decision on facts. But it was argued on behalf of the appellant that as the plaintiffs did not seek then remedy under S. 116 of the Act they cannot be allowed to raise any objection to the assessment and reliance was placed on the provisions of S. 119 of the Act. In my opinion this contention is without any substance. This is an alternative remedy which is available to an assessee and is much weaker than the bar imposed by s. 33, Revenue Sale Law. In the latter case as I have pointed out above, if the Collector by wrongly deciding the existence of an arrear had no jurisdiction to sell the estate the jurisdiction of the civil Court is not ousted by reason only of the fact that this objection was not raised before the Commissioner. Similarly here if the plaintiffs are found to be not occupying any holding within the municipality the mere fact that the plaintiffs did not seek their remedy under S. 116—an alternative remedy as observed above—will not clothe the municipality with any jurisdiction, which they otherwise did not possess, to make this assessment. It was also argued that the words in S. 117(3) are that the decision of the Committee in such’ cases shall be final. In the present case there is no decision of the Committee because the plaintiffs did not go to the Committee. Moreover the finality given to the decision is the finality between the assessee and the Commissioners: see 21 Cal. 319. Some stress was laid on the difference in s. 116 of the Bengal Act as it existed at the time when the case in 21 Cal. 319 was decided and its later amendment by Bengal Act 4 of 1894. At that time S. 116 stood as follows:

“No objection shall be taken to any assessment or rating nor shall the liability of any person to be assessed or rated be questioned in any other manner or by any other authority than in this Act is provided.”

9. By the amendment in 1894—the same year in which this decision was given—the words “nor shall the liability of any person to be assessed or rated be questioned,” and the words “or by any other authority” were deleted ho that the section as it now stands in the Bengal Act is materially the same as is S. 119 of our Act. But this amendment of the original S. 116 in no way helps the argument advanced on behalf of the municipality; on the other hand the Legislature has accepted the view that the interference by the civil Court is not to be considered as barred either explicitly or implicitly. I now proceed to enquire whether the plaintiffs are occupiers of this holding within the municipality. So far as plaintiff 1 is concerned, he is undoubtedly an occupier of the holding. Plaintiff 2 is a pleader, or rather was a pleader as we are informed that he is now dead and he is represented in these proceedings by his legal representatives. On the relevant date as he belonged to a family governed by the Dayabhag School of Hindu law he had no interest whatsoever in the holding and was living in it apparently on sufferance depending upon the sweet will of his father. Mr. Jha argued before us that a Dayabhag son has a right of maintenance and the right of maintenance includes a right of residence, and, therefore, the occupation of plaintiff 2 must be held to be as of right. I do not agree with this contention because the authorities referred to by Mr. Jha all related to a minor son. It is nowhere provided either in the text or in any authority that the major son has a right to be maintained by his father apart from custom. The cases cited that the right of maintenance is inherent in a person if he cannot seek for partition without the consent of the coparcener are also of no application because in a Dayabhag family the son is not a coparcener with the father either in the estate which the latter inherits from the ancestor or which is his self-acquired property. In 2 C.W.N 689 it was decided that if the view which is now contended for by Mr. Jha on behalf of the-municipality was well founded,

“it would follow that all persons connected with, or related to a particular individual occupying a particular holding, and by that relationship entitled to or bound to live with him, would be separately assessable, if possessed of a separate income. A wife, for example, if living with her husband and a servant, if residing on his master's premises would be separately assessable; and so forth.”

10. In my opinion that view is the correct view to take of the applicability of S. 82(1)(a) and with respect I adopt it. It follows, therefore, that the assessment on plaintiff 2 was ultra vires. It was then urged that the assessment on plaintiff 1 must also be held to be ultra vires because there was a joint assessment on him along with plaintiff 2 and reliance was placed upon a number of cases by Mr. B.C De. But the case law does not help him in the least. In 2 C.W.N 689 it was held that there may be circumstances in which more persons-than one may occupy or may choose to occupy a particular holding jointly making-each of themselves assessable to the municipality. The case in 26 C.W.N 311 contains an exhaustive discussion by Sir Ashutosh Mookerjee upon this identical question. He comes to the conclusion that joint assessment is permissible where two persons are in joint occupation of a holding, although the case may present an increased complexity where the Court has to deal with members of joint Mitakshara families. See also the case in 32 C.W.N 94015 which contains an interesting discussion on the same topic. At p. 943 Page J. points out that the possession or occupation of a holding must be beneficial to the assessee, it must be intended that the possession should be continuous and not merely casual or intermittent, and the assessee or joint assessees of the holding must be entitled to the exclusive use and enjoyment of the holding as of right and not on sufferance.

11. Mr. De also relied on the case of a Single Judge of the Calcutta High Court in A.I.R 1928 Cal. 591, but all that was decided in that case was that the municipality by assessing a joint personal tax on each of the two defendants has contravened the provisions of S. 85(a). It was observed at p. 592 that whether the holding is claimed jointly by two or more persons, cl. (a) suggests that a tax is to be assessed on each separately according to the circumstances and property of each within the municipality. The difficulty in applying this case to the facts of the present case is that we have no materials before us to show that the assessment on the father and the son was not made according to the circumstances and the property of each within the municipality. For these reasons I must overrule the contention that the joint assessment of the plaintiffs was ultra vires in this case. The result is that the appeal of the Municipality must be allowed only to this extent that the appellant cannot be restrained from levying and realising the tax, which has been imposed, from plaintiff 1. The appeal of the municipality fails so far as plaintiff 2 is concerned. The municipality is entitled to half the costs throughout from plaintiff 1 but must pay the costs of plaintiff 2 in the trial Court only.

Beevor, J.:— In view of the cursus curiae which my learned brother has referred, I agree that we must hold that the civil Court has jurisdiction in this case to consider and decide on the validity of the assessment though I am not sure that I should have reached the same conclusion had the matter been res integra. On the merits of the appeal I entirely agree with the judgment of my learned brother.

G.N

12. Order accordingly.