Das, J.:— This is an appeal from the judgment of a single Judge of this Court under Clause 10 of the Letters Patent. The material facts are these: Askaran Baid, the plaintiff-appellant, instituted a mortgage suit, being suit no. 506 of 1914 against one Janki Lal Singh. The property mortgaged was a share in village Tilauti. In due course Askaran obtained his mortgage decree; but before the final decree was obtained the cadastral survey had taken place in which certain lands within the ambit of the mortgaged properties were recorded as the raiyati holding of Deo Lal Singh and Gouri Lal Singh at a rent of Rs. 29-8-3 per year. Deo Lal is the nephew of Janki Lal and Gouri Lal is his servant. In these circumstances, Askaran was unable to obtain possession of the disputed lands, though he purchased the mortgaged properties at the sale held in execution of the mortgage decree. He therefore instituted a suit, being suit no. 298 of 1928, against Deo Lal and Gouri Lal for recovery of possession of the disputed lands. He also cited Janki Lal as a party defendant in that suit, and the case made on his behalf was that neither Deo Lal nor Gouri Lal had any interest in the disputed lands, the entry in the record-of-rights having been made deliberately to defeat his interest under the mortgage and in fraud of his right. We have considered the plaint which was filed by the present plaintiff in that litigation; and there is no doubt whatever that the suit was brought on trespass and trespass alone. The plaintiff, however, claimed a relief in the alternative for assessment of a fair and equitable rent payable by the defendant to him; and he maintained that Rs. 15 per bigha would be a fair rent in respect of the disputed lands. That suit did not proceed to a hearing; but a consent decree was passed by which it was declared that Gouri Lal had no interest whatever in the disputed lands and that Deo Lal should hold the disputed lands on payment of a rent of Rs. 67-0-6 including cess. This consent decree was passed in 1922. The present suit was instituted by the plaintiff for recovery of rent on the foot of the consent decree. The suit was resisted by the defendant on the ground that the consent decree contravened the provisions of section 29 and section 147A of the Bengal Tenancy Act. He contended that in the circumstances the consent decree was wholly inoperative and that the plaintiff was only entitled to rent at the rate of Rs. 29-8-3 as recorded in the record-of-rights. The learned District Judge in the lower appellate Court came to the conclusion that the compromise was a nullity and in so holding he professed to be guided by a decision of this Court in Chand Gorain v. Khub Lal Mahto. On appeal the learned Judge has upheld the view of the lower appellate court.
It was contended on behalf of the plaintiff-appellant that assuming that the consent decree was passed under section 147A of the Bengal Tenancy Act, it cannot be impeached in a collateral proceeding. The question involves a discussion as to whether such a decree can be regarded as a nullity. As I have said the learned District Judge in the lower appellate court and a Judge of this Court have taken the view that the consent decree in this case was a nullity. It is quite true that it was decided in this Court in Chand Gorain v. Khub Lal Mahto that a compromise decree passed in contravention of the provisions of section 147A of the Bengal Tenancy Act is a nullity. This Court in so deciding followed a decision of the Calcutta High Court in Sarjugsharan Lal v. Dukhit Mahto. It is, however, worthy of note that the decision of the Calcutta High Court has been doubted by one of the learned Judges who decided that case and has been overruled in the later decisions of that Court. I may usefully refer to two of the decisions of the Calcutta High Court: In Ishan Chandra Banikya v. Moomraj Khan it was held by a Division Bench of the Calcutta High Court that a decree under the provision of section 147A of the Bengal Tenancy Act cannot in a subsequent suit for rent between the parties be treated as without jurisdiction and a nullity on the ground that the procedure laid down in that section as to the recording of reasons by the court for being satisfied that the terms of the compromise were such that of embodied in a contract, they could be enforced under the Act, was not followed; although such a decree may be assailed in proper proceedings between the parties as erroneous. I may mention that at the date when the case of Sarjugsharan Lal v. Dukhit Mahto was decided, there was considerable confusion as to the meaning of the term ‘Jurisdiction.’ Subsequently in two Full Bench decisions of the Calcutta High Court it has been made clear that the term ‘jurisdiction’ means the authority of a court to render judgment in a cause and that it has nothing to do whatever with the exercise of jurisdiction by the court. Now if this position be conceded, then it must follow that, however erroneous the decision of a court may be, it cannot be challenged collaterally if it be held that the court had complete jurisdiction to render judgment in the case. Now so far as this case is concerned, the court before which the cause was brought was the only court that could try the case: The parties were properly before him; the case was properly before him; and the court, being the only court that could, decide the case having pecuniary jurisdiction, territorial jurisdiction, jurisdiction over the parties to the suit, rendered judgment in the case. In my opinion it is impossible to say that the decision can possibly be regarded as a nullity.
I may refer to certain decisions of this Court on this point. In Kunj Behary Chowdhury v. Charon Singh a single Judge of this Court followed the decision of the Calcutta High Court in Sarjugsharan Lal v. Dukhit Mahton; but before that case was decided a Division Bench of this Court had already taken the view that a consent decree under section 147A could not be regarded as a nullity on the ground that the formalities indicated in that section were not complied with [See Deolagan Singh v. Mussamat Gulbansi Kuer]. This judgment was not brought to the notice of the single Judge deciding the case of Kunj Behari Chowdhury v. Charan Singh and in the later case of Loki Gape v. Ram Nandan Prosad Singh the learned Judge who decided the case of Kunj Behary Chowdhury v. Charan Singh stated that his decision would have been different had the decision of the case in Deolangan Singh v. Mussammat Gulbansi Kuer been brought to his notice. In my opinion the problem for our consideration is a simple one. As I have said, the court in seisin of the case which resulted in a compromise decree was property in seisin of that case and it must follow that his decision cannot he described as a nullity.
It was contended by Mr. S.N Roy, on behalf of the respondent that a consent decree can be set aside in an action commenced for the purpose on any ground that would invalidate an agreement; and reliance was placed on Hudders field Banking Co. v. Lister and on numerous decisions of this and other Courts. The proposition in the form in which it is stated by the learned Advocate for the respondent need not be disputed; but in my opinion a decree under section 147A of the Bengal Tenancy Act, though in one sense a consent decree, cannot possibly be said to have all the elements of a consent decree. A consent decree properly so called is a decree passed by the consent of the parties with the sanction of the Court superadded. The court cannot withhold the necessary sanction and it follows, therefore, that a consent decree properly so called stands on no higher footing than a contract between the parties; but a decree under section 147A of the Bengal Tenancy Act is altogether a different matter. It would appear on a reference to section 147A of the Bengal Tenancy Act that the legislature has anxiously considered the problem of a contract between landlord and tenant and has carefully guarded the interests of the tenant. It assumes as a general proposition that the provisions of Order XXIII, rule 3, shall not apply to any suit between landlord and tenant as such. It then proceeds to provide that if a suit between landlord and tenant as such is adjusted wholly or in part by any lawful agreement or compromise, or if the defendant satisfies the plaintiff in respect to the whole or any part of the subject-matter of the suit, the court shall pass a decree in accordance with, such agreement, compromise or satisfaction, so far as it relates to the suit; provided, and this is very important,
“that no decree shall be passed in accordance with any agreement or compromise the terms of which, if they were embodied in a contract, could not be enforced under this Act.”
Paragraph (3) provides that
“where any agreement or compromise has been made for the purpose of settling a dispute as to the rent payable, the court shall, in order to ascertain whether the effect of such agreement or compromise would be to enhance the rent in a manner, or to an extent, not allowed by section 29 in the case of a contract, record evidence as to the rent which was legally payable immediately before the period in respect of which the dispute arose.”
And paragraph (4) gives complete power to the Court not to pass a decree in accordance with the agreement or compromise where the terms of the agreement or compromise are such as may unfairly or inequitably affect the rights of third parties, unless and until it is satisfied by evidence that the statements made by the parties thereto are correct. As I have said, the legislation on this point is as anxious as can be imagined and it is, therefore, impossible to say that a decree under section 147A, though in one sense it is a consent decree, has all the elements of a consent decree. In my judgment, therefore, the case does not attract the rule of law as laid down in Huddersfield Banking Co. v. Lister and we must follow the decisions of our Courts directly under section 147A of the Bengal Tenancy Act so far as this matter is concerned. I must, therefore, hold that the decision of the learned Judge in this Court in so far as he has proceeded on the hypothesis that the decree in suit no. 298 of 1920, is a nullity is erroneous in point of law.
There are two other questions which in my opinion ought also to be decided in favour of the appellant. It was contended that suit no. 298 of 1920 was not a suit between landlord, and tenant as such and that, therefore, the decree does not fall within the mischief of the rule as enunciated, in section 147A of the Bengal Tenancy Act. As I have already stated, the suit was both in form and in substance a suit in ejectment. It was based on the allegation of trespass and trespass alone. No doubt the plaintiff claimed an alternative relief but such a relief can be granted to a plaintiff suing in ejectment under the provisions of section 157 of the Bengal Tenancy Act. The fact that in a suit for trespass the plaintiff is claiming an alternative remedy such as section 157 of the Bengal Tenancy Act concedes to him does not make the suit any more a suit between landlord and tenant. In my judgment, therefore, section 147A of the Bengal Tenancy Act has no application to the facts of the present case. It is hardly necessary to mention that the first question dealt with by me was on the footing that the decree was a decree under section 147A of the Bengal Tenancy Act.
The last point which, has been contended before us is equally destructive of the defendant's case. Now it must be remembered that the defendant is the nephew of the mortgagor against whom the mortgage action was brought by the present plaintiff. The learned. District Judge in his judgment concedes that it is not improbable in view of the relationship between the parties and other circumstances of the case that a collusive settlement was made at a low rate with the appellant in anticipation of the mortgage decree. It is not open to us to come to the conclusion that the entry in the record-of-rights was a collusive entry; but at any rate the facts which emerge from the judgment of the lower appellate court are that the plaintiff having succeeded in the mortgage action, having purchased the mortgaged properties at the sale held pursuant to the mortgage decree, found himself face to face with the entry in the record-of-rights describing a nephew and a servant of the mortgagor as occupancy tenants in respect of the disputed lands. Pie contested the entries in the record-of-rights. It was his case that the entries in the record-of-rights were collusive entries made with a view to defeat his interest. The position taken up by him was no doubt challenged by the defendant in the title suit. The plaintiff might have succeeded or might have failed. The defendant might have succeeded or might have failed. In this state of affairs they arrived at a compromise which conceded a favourable position to the defendant subject to his liability to pay rent at a certain rate to him. It is impossible to say that the settlement between the parties was not a bona fide settlement to end the litigation between them; and, in my opinion, such an agreement, in the particular facts of the case, does not come within the mischief of section 29 of the Bengal Tenancy Act.
For these reasons I am of opinion that the decisions arrived in this case are erroneous and that this appeal should be allowed and the plaintiff's suit decreed with costs throughout.
Kulwant Sahay, J.:— I agree.
Dhavle, J.:— I agree.
Appeal allowed.