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Case Number

Civil Rules Nos. 1166 to 1173 of 1936

Judges

B.K Mukherjea, J.

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Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

Eight analogous rent suits arising out of lands in mouza Suratali, Pabna, were tried together because they involved common questions of law and fact.

One suit, Bent Suit No. 2616 of 1934, had as plaintiffs two banks (the Pabna Dhanabhandar Co., Ltd. and the Pabna Bank Ltd.) and certain other persons called the Pakrashis, who jointly represented the putni interest in the mouza. The plaintiffs in that suit sought rents from tenants holding lands in the mouza.

The other seven suits were brought by one Himangshu Jyoti Majumdar, who claimed to recover rents as a darputnidar on the basis of an interest said to be held by his mother under his father (the putnidars).

The tenants in the seven suits contended that the darputni was collusive/benami or had ceased to exist after a sale of the putni interest; if true, rent would be payable to the putnidars and Himangshu would have no right to sue. In Bent Suit No. 2616, by contrast, the tenants contended that the putnidars had no right to sue because Himangshu's darputni still subsisted. Himangshu was not a party to Suit No. 2616, nor were the putnidars impleaded in Himangshu's suits.

The Munsif (trial Court) initially found the darputni valid and not annulled by putni sale, dismissed Bent Suit No. 2616 (plaintiffs: putnidars) and decreed the seven suits of Himangshu. That judgment was dated 15 June 1935.

All eight decrees were appealed to the District Judge of Pabna. The suits were valued below Rs. 50 and the Munsif had final powers under Section 153 of the Bengal Tenancy Act (referred to as Ben. Ten. Act).

The District Judge, without objection from respondents, heard the appeals and remanded the matters for fuller hearing. On rehearing the Munsif (25 November 1935) held that the darputni merged in the putni (when Himangshu held both interests after his parents' death), concluded the darputni did not subsist after the putni sale, dismissed Himangshu's seven suits and decreed the putnidar suits. Subsequent appeals again led to objections about competency; the District Judge treated them as revisions under the proviso to Section 153 but declined to interfere.

Himangshu, Jyoti and the defendants in Suit No. 2616 filed revision before this Court challenging the remand and subsequent decrees as void for lack of jurisdiction.

Legal Issues Presented

Whether the darputni interest claimed by Himangshu had any legal existence (i.e., whether it was valid, collusive/benami, or had been annulled/merged by putni sale).
Whether appeals from the Munsif's decision of 15 June 1935 to the District Judge were competent under Section 153 of the Bengal Tenancy Act, given the suits were valued under Rs. 50 and the Munsif had final powers.
Whether the remand order by the District Judge and the decrees and orders made after remand are void for want of jurisdiction and therefore capable of being set aside in revision.
Whether consent or inaction by the respondent parties, or the appellate Court's inherent jurisdiction, can cure the alleged incompetence of the appeals.
Whether the Munsif's decision on rehearing (specifically the finding of merger, which was not properly pleaded) should be sustained, and whether complex title issues may properly be decided in simple rent suits when conflicting title claimants are not parties.

Arguments of the Parties

Petitioners / Applicants (represented by Mr. Jatindra Nath Lahiri)

Contended that the decrees passed by the Munsif were final under Section 153 of the Bengal Tenancy Act and that no appeal lay from the Munsif's decision dated 15 June 1935.
Argued that the District Judge's remand order and the subsequent decrees by the Munsif (after remand) are void for want of jurisdiction and should be set aside.

Opposite Parties / Respondents (represented by Mr. Krishna Kamal Maitra and supported by Mr. Surajit Chandra Lahiri)

Contended that, even if the formal appeals were incompetent, the lower appellate Court did not lack inherent jurisdiction to entertain the matters and at most exercised jurisdiction irregularly.
Argued that the petitioners' failure to object to the competency of the appeals earlier should bar them from complaining now (waiver/consent), and that the Court should not exercise revisional powers under Section 115 of the CPC because there are no merits on the petitioners' side.
Asserted that consent/waiver by respondents could cure irregularity and that an appellate Court's earlier decision on competency would be binding.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
38 Cal 639	Supports the proposition that a Court's usurpation of jurisdiction makes its decrees and orders nullities which can be set aside.	Relied on as authority for the established principle that lack of jurisdiction renders orders void and capable of being declared nullities.
14 IA 160	Affirms that appellate jurisdiction must be given by statute; a consent or waiver cannot invest an appellate Court with jurisdiction it does not possess.	Used to reject the respondents' reliance on consent/waiver to cure incompetency of appeals; the Court held that waiver cannot create statutory jurisdiction.
40 Cal 213	Reiterates the principle that a right of appeal must be given by express enactment; quoted to the effect that "An appeal does not exist in the nature of things."	Quoted and applied to show that appellate jurisdiction depends on statute (Section 153) and cannot be assumed simply because parties did not object.
(1877) 3 QBD 14 (observation of Lord Bramwell)	Expresses the general rule that a right of appeal must be provided by statute ("An appeal does not exist in the nature of things").	Quoted (via 40 Cal 213) to support the statutory nature of appellate jurisdiction and to undermine the argument that consent/inaction can confer jurisdiction.
20 CLJ 213	Example of authority where an appellate Court's decision that it had jurisdiction, once made, would be binding and not subject to later attack (if it had in fact decided the competency question).	Distinguished by the Court: these cases show binding effect only where the appellate Court actually decided competency; here no such earlier decision was made.
12 Pat 1176	Another authority for the proposition that an appellate Court's jurisdictional decision, when made, is binding.	Used as an example of the principle that would apply if the appellate Court had decided competency; the Court held it did not apply here because there was no prior decision on competency.
41 CWN 3967	Similarly cited as a case illustrating the binding nature of an appellate Court's decision on jurisdiction when it has been made.	Again distinguished: the absence of any prior ruling on competency in these appeals means the principle from these cases does not save the irregular proceedings.

Court's Reasoning and Analysis

The Court proceeded in two interrelated strands: (1) an analysis of jurisdiction under Section 153 of the Bengal Tenancy Act and the legal effect of entertaining appeals when no statutory right of appeal exists, and (2) an assessment of the propriety of allowing a substantive and complex title issue (merger of darputni) to be decided in simple rent suits where conflicting title claimants were not parties and the issue was not properly pleaded.

On jurisdiction, the Court reiterated established principles: appellate jurisdiction must be given by statute; where a Court is not invested with jurisdiction, its orders are nullities. The Court relied on authorities (for example, 14 IA 160 and 40 Cal 213, and the quoted dictum from 3 QBD 14) to hold that consent or waiver by respondent parties cannot invest an appellate Court with jurisdiction it does not possess. The Court accepted that where an appellate Court has actually decided and asserted jurisdiction, that decision (even if erroneous) would be binding unless set aside by a higher Tribunal (as shown by cases like 20 CLJ 213, 12 Pat 1176 and 41 CWN 3967). Crucially, however, the Court found that in the present matters there was no initial decision by the District Judge affirming competency of the appeals at the time they first came up; there was only inaction and absence of objection by respondents. The Court held that mere inaction or failure to object cannot be equated with the existence of the statutory conditions required by Section 153 to make appeals competent.

Consequently, the Court concluded that the District Judge's remand order (14 September 1936), the Munsif's decree after remand (25 November 1935), and the District Judge's order of 7 May 1936 affirming that decree were void for want of jurisdiction and therefore had to be set aside. The original Munsif order of 15 June 1935 was to be restored.

Separately, the Court examined the substantive merits of the Munsif's decision after remand and observed that it was founded entirely on a finding of merger which had not been properly pleaded in the written statement. The Court considered it improper in simple rent suits—where persons claiming conflicting title were not made parties—to permit a complicated question of title like merger to be raised and finally decided. The Court noted that it would have set aside the Munsif's post-remand decision on this procedural/substantive ground even if it had not concluded the proceedings were void for want of jurisdiction.

The Court limited its result: while restoring the original Munsif order for the purposes of these rent suits, it expressly stated that the opposite party remains free to raise the question of merger in subsequent litigation if advised to do so.

Holding and Implications

Holding:

The Court ordered that the prior remand and subsequent proceedings were void for want of jurisdiction and therefore set them aside. More specifically:

The remand order of the District Judge dated 14 September 1936, the Munsif's decree after remand dated 25 November 1935, and the District Judge's order dated 7 May 1936 affirming that decree are set aside.
The original Munsif order dated 15 June 1935 is restored.

Implications:

The direct effect is to restore the trial Court's original decision for the purposes of the rent suits in question.
The Court made clear that the restored original order will operate only with respect to these rent suits and does not preclude the opposite party from raising the question of merger in any subsequent litigation.
No broader precedent-changing doctrine was created beyond the application of established jurisdictional principles; the Court applied well-established authority to conclude that in the absence of statutory competence an appellate remand and the decisions made pursuant to it are nullities.
The Court made no order as to costs.

Disposition: Rules made absolute.

S.C/D.S

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Piru Pramanik v. Pabna Dhanabhandar Co. Ltd.

1. The eight analogous Rules arise out of as many suits for rent which involved certain common questions of law and fact and were tried together in both the Courts below. In one of these rent suits, namely, Bent Suit No. 2616 of 1934, the plaintiffs are the two Banks,—the Pabna Dhanabhandar Co., Ltd. and the Pabna Bank Ltd. and certain other persons who may be called the Pakrashis and all these plaintiffs jointly represent the entire putni interest in mouza Suratali in the district of Pabna. The rent claimed was for lands held by the defendants in the suit within the said mouza. In the other seven suits one Himangshu Jyoti Majumdar figured as the plaintiff and he claimed to recover rents from the tenants, defendants in respect of lands held by them in the same Mouza Suratali on the basis of his rights as a darputnidar in the mouza under the putnidars mentioned above. The defence taken by the tenants in all these suits raised a common point which turns upon the question as to whether the darputni interest claimed by Himangshu and on the basis of which he instituted the seven suits had any legal existence.

2. The contention of the tenants in these seven suits was that this darputni which was alleged to be held by the mother of Himangshu under his father as putnidar was a collusive and benami affair and that in any event it ceased to exist after the sale of the putni interest. If this darputni interest was not subsisting, Himangshu obviously would not have any right to realize rent from the tenants who would be bound to pay rent to the putnidars direct.

3. Curiously enough, the defence taken by the tenants in suit No. 2616 of 1934 where the putnidars were the plaintiffs was just the opposite and it was contended that the putnidars had no right to sue inasmuch as the darputni of Himangshu was still subsisting and rents were payable to the latter. It may be mentioned here that Himangshu was not a party to Bent Suit No. 2616 of 1934 and the plaintiffs in that suit were not impleaded as defendants in the seven suits of Himangshu. The trial Court came to the conclusion that the darputni interest of Himangshu was a valid thing and was not annulled by the putni sale and consequently the putnidars were not entitled to sue the tenants for rent. On this finding the Munsif dismissed Bent Suit No. 2616 of 1934 and decreed the other seven suits in which Himangshu was the plain, tiff. The judgment is dated 15th June 1935.

4. Against these decrees there were eight appeals taken to the District Judge of Pabna. It may be stated that all these suits were valued at less than Rs. 50 and the munsif who decided them was invested with final powers under Section 153 of the Ben. Ten. Act. It is also not disputed that no question was raised or decided in these suits which could make the appeals competent under the provisions of that section. No such objection was, however, taken by the respondents to the appeals and the learned District Judge heard these appeals in the ordinary way and being of opinion that the questions of merger and annulment of the darputni interest were not properly decided, sent the case back for re-hearing on fuller materials. The cases were re-heard by the trial Court and judgment delivered on 25th November 1935. The Munsif decided the question of merger against Himangshu and held that the darputni interest merged in the superior putni right when Himangshu himself held both these interests after the death of his parents. Consequently, when the putni was sold there was no subsistence of the darputni interest. On this view of the case the munsif dismissed the seven suits of Himangshu and decreed the other suits where the putnidars were the plaintiffs. Against these decrees again there were appeals preferred to the Court of the District Judge of Pabna, and objection was now taken by the respondents, who were appellants on the previous occasion, that the appeals were incompetent. The Judge agreeing to the contention treated them as petitions of revision under the proviso to Section 153 of the Ben. Ten. Act, but in the end refused to interfere observing that the entertainment of the appeals on the previous occasion which were not entertain, able in law without an objection from the other side had led to certain anomalous' results and this Court was the only proper Court which could end the tangle and adjust the rights of the parties.

5. Himangshu, Jyoti and the defendants is Suit No. 2616 of 1934 have now come up in revision before this Court. Mr. Jatindra Nath Lahiri who appears in support of these rules has contended before me that the decrees passed by the munsif being, final under Section 153 of the Ben. Ten. Act, from which admittedly no appeal lay the order of remand passed by the lower appellate Court as well as the subsequent decrees passed by the munsif are all void for want of jurisdiction and should be set aside. Mr. Krishna Kamal Maitra who appears for the opposite party in some of these rules, on the other hand, takes up the position that even though the appeals were incompetent, yet there was no lack of inherent jurisdiction in the lower appellate Court which, at the most, exercised the jurisdiction in an irregular way. It is said that the petitioners who did not raise any objection to the competency of these appeals cannot now complain of these orders and that in any view of the case there being no merits on the side of the petitioners, it is not a case where I should interfere in exercise of my revisional powers under Section 115 of the CPC. Mr. Surajit Chandra Lahiri, who appears on behalf of the parties in some of these rules, supports the contention of Mr. Maitra.

6. It is a proposition too well established; that if a Court is not invested with jurisdiction to hear and determine a matter, this usurpation of authority for which there is no warrant in law would make all decrees and orders mere nullities which could be set aside or declared void as the circumstances might require: vide 38 Cal 639,1 It is also well settled that the authority or jurisdiction of an appellate Court to review or revise a decision of the Court below must be given by a statute or an equivalent authority. The Judicial Committee laid that down clearly in 14 IA 1602 and this was repeated in 40 Cal 213 where the observation of Lord Bramwell in (1877) 3 QBD 14 was quoted that:

An appeal does not exist in the nature of things. A right of appeal from any decision of any Tribunal must be given by an express enactment.

7. Where there is no appeal provided for by law a consent or waiver on the part of the respondent could not invest the appellate Court with the jurisdiction it did not possess: see the observation of the Judicial Committee in the case reported in 14 IA 160.

8. In these cases it is not disputed that under Section 153 of the Ben. Ten. Act, no appeal lay to the District Judge from the decision of the Munsif dated 15th June 1935. But it is contended by Mr. Krishna Eamal Maitra that there is no absolute want of jurisdiction in this case as was the matter in 14 IA 160 inasmuch as Section 153 of the Ben. Ten. Act, does allow appeal in certain cases which come within the purview of the proviso to the section. The Court, therefore, had jurisdiction to entertain the appeals provided certain conditions were fulfilled. It may be irregular to exercise jurisdiction where the conditions are really absent, but the assumption of jurisdiction is not wholly unwarranted and the decision cannot be said to be a nullity. The consent or waiver on the part of the respondents, it is said, will cure the irregularity in such cases. The argument, though plausible at first, is really of no assistance to Mr. Maitra's clients in the present case. It is true that every Court has jurisdiction to hear and determine a case and when its jurisdiction is challenged it is its duty to determine the actual existence of things on which alone it can assume jurisdiction. If it decides that it has jurisdiction then that decision would be binding, as a Court has always the jurisdiction to decide rightly or wrongly, and it would not do to say that the conclusion was wrong. This principle has been applied in many cases of which the cases in 20 CLJ 213,5 12 Pat 1176 and 41 CWN 3967 may be taken as types. If the appellate Court had decided that the appeals were competent when they first came up for hearing, then that decision, unless set aside by any higher Tribunal, could not be attacked at a subsequent stage of the proceeding, even if the decision was wrong. But when, as here, there was no decision by the appellate Court on this point, I am unable to hold that mere inaction or want of objection on the part of the respondents would prove the existence of things, the existence of which alone would make the appeals competent under Section 153 of the Ben. Ten. Act.

9. In my opinion, therefore, the remand order passed by the District Judge on 14th September 1936, and the decree passed by the lower Court on 25th November 1935, after remand and the order of the District Judge dated 7th May 1936, affirming the same must be set aside and the original order of the Munsif dated 15th June 1935 should be restored.

10. I am not impressed with the argument of Mr. Maitra that I should not interfere in revision in these cases, as the decision of the Munsif after remand is a good and proper decision. The decision of the Munsif after remand is based entirely on his finding on the question of merger which was not even properly pleaded in the written statement. In my opinion, in simple rent suits, where persons claiming conflicting title are not even made parties, it is very much improper to allow this complicated question of title to be raised and tried. I would certainly have set aside the decision of the Munsif passed after remand on this ground alone, even if I had not held that the proceedings were void for want of jurisdiction, I will make it clear, however, that the original order of the Munsif will stand only for the purposes of these rent suits. It will not preclude the opposite party to raise the question of merger, if they are so advised, in any subsequent litigation. Subject to these observations the rules are made absolute. Under the circumstances of the case, I will make no order as to costs.

S.C/D.S

11. Rules made absolute.

Piru Pramanik v. Pabna Dhanabhandar Co. Ltd.

Concise Analytical Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners / Applicants (represented by Mr. Jatindra Nath Lahiri)

Opposite Parties / Respondents (represented by Mr. Krishna Kamal Maitra and supported by Mr. Surajit Chandra Lahiri)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Piru Pramanik v. Pabna Dhanabhandar Co. Ltd.

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