Sanderson, C.J:— In this case the facts are a little peculiar. The action was brought by the Plaintiff against the first Defendant who is her father, and the second Defendant who is her husband, and the action was brought for arrears of rent. The Plaintiff alleged that she had purchased the property from the superior landlord of the first Defendant, her father, on the 1st of September 1908, and she sued for four years' arrears of rent,—two, before the purchase and two after the purchase.

The defence set up by the first Defendant, the Plaintiff's father, was that the land had not been purchased by the Plaintiff at all, but that he himself was the purchaser and that the purchase had been carried through in the name of his daughter the Plaintiff. When the case came before the Court of first instance this issue as to whether the Plaintiff was the owner in her own right and in the interest which she claimed, or whether she was simply a nominee of her father, was raised; but the learned Munsif did not deal with it: he expressly said that he did not deal with the question of title; but he said that inasmuch as the Plaintiff had not proved the receipt of any rent from the first Defendant, he was justified in giving judgment for the Defendant against the Plaintiff. Thereupon, the Plaintiff appealed to the District Judge and besides appealing she made an application at the same time as the appeal under the proviso of sec. 153 of the Bengal Tenancy Act.

On the hearing of the appeal, it was urged before the learned District Judge on behalf of the Defendant that it was not competent for the Plaintiff to appeal, because the case had been heard by the Munsif in pursuance of sec. 153, cl. (b), the Munsif being a judicial officer especially empowered by the Local Government to exercise final jurisdiction under this section, and the amount claimed in the suit not exceeding fifty rupees. It was urged that those being the facts no appeal lay from the decision of the learned Munsif. On the other hand, the Plaintiff said that an appeal did lie, because, she urged, the learned Munsif had decided a, question relating to the title to the land, and the learned District Judge came to the conclusion that the learned Munsif had decided a question relating to the title to the land, and therefore, he held that an appeal lay, and he heard the appeal and decided that the truth lay on the side of the Plaintiff that she in fact was the purchaser of the superior landlord's interest in the land and her father was liable to pay the rent for which she was suing. The application for revision under the proviso of sec. 153 naturally was not pressed, because the Plaintiff got all that she wanted, she having succeeded in the appeal, and that application was dismissed, each party paying his own costs. Then the Defendant appealed to the High Court, and the High Court decided first that the learned District Judge was wrong in holding that there was an appeal from the learned Munsif to himself, and inasmuch as there was no appeal from the Court of first instance to the learned District Judge there was no appeal from the learned District Judge to the High Court: and, on these grounds, the two learned Judges of this Court dismissed the appeal. An application was made to those two learned Judges on behalf of the Defendant to exercise their powers of revision under sec. 115 of the Civil Procedure Code, but they said that having regard to the nature of the case and the facts which the learned District Judge found, they did not intend to exercise their power of revision under sec. 115.

Under those circumstances the Defendant obtained a Rule from this Court for a review of the judgment of the two learned Judges of the High Court.

The first question we have to consider is whether the learned Judges were right in holding that inasmuch as there was no appeal from the learned Munsif to the District Judge there was no appeal from the District Judge to the High Court.

I agree with the decision that there was in this case no appeal from the Court of first instance to the learned District Judge, because the section says that “an appeal shall not lie, from any decree or order passed, whether in the first instance or an appeal, in any suit instituted by a landlord for the recovery of rent where—(b)”—I have already read cl. (b) and I need not read it again—“unless in either case the decree or order has decided a question relating to title to land or to some interest in land as between parties having conflicting claims thereto.” As I have already said, in my opinion, there was raised before the Court of first instance a question relating to title to land as between parties having conflicting claims thereto. But the Munsif expressly refrained from deciding that question. Therefore that question did not come within the words of the section, viz., “where the decree or order decided a question relating to title to land as between parties having conflicting claims thereto.”

Then comes the second branch of the question whether the learned Judges were right in holding that there was no appeal to this Court. In my judgment, with every respect to them, they were wrong. The judgment was based upon a decision, to which our attention was drawn this morning, in Bhagabati Bewa v. Nanda Kumar Chuckerbutty. In that case the head-note is to this effect: a suit by a co-sharer landlord for his share of the rent only, without making the other co-sharers parties, is a suit instituted by a landlord for the recovery of rent within the meaning of sec. 153, Bengal Tenancy Act. Where the rent claimed in such a suit did not exceed Rs. 50, and it was tried and dismissed by a Munsif who was specially empowered under cl. (b) of sec. 153: Held—that no appeal lay to the Subordinate Judge and hence no second appeal from his decision reversing that of the Munsif. Now, at the first sight that would appear to be material to this case. But when we look at the facts of the case it is clear that neither the learned Munsif nor the learned Judge of the first Appellate Court had decided a question of title to land: and, as in that case neither of the Courts had decided that point, it may have been right to have held, that “if no appeal lies from the Munsif to the, Subordinate Judge, no appeal lies from the Subordinate Judge to the High Court.” I express no opinion on that question, as it is not necessary for the purposes of this case to do so. For in the present case the learned District Judge had decided a question of title between the parties, and therefore, in my judgment the case clearly comes within sec. 153 which, I may repeat, says that an appeal shall not lie from any decree or order passed whether in the first instance or on appeal …. unless in either case the decree or order has decided a question relating to title to land. In this case it seems to be obvious that on appeal there was a question of title decided by the learned District Judge. Therefore, the case comes within the express provision of that section, and an appeal did lie from the learned District Judge to this Court. Therefore, the position is this: It being decided that an appeal does lie from the District Judge to this Court, and it having been already decided that there was no appeal from the learned Munsif to the learned District Judge, the consequence is that the decision of this Court must be set aside, and as a natural consequence, the decision of the learned District Judge must also be set aside.

I should be sorry if the matter had to rest there, because one cannot disregard the finding of the learned District Judge who has investigated the case and has come to the conclusion that the Plaintiff is entitled to the relief which she sought in this case, and has found that the truth lay on her side and that she was the real purchaser of this property; and, I am glad to find that it is open to us to direct further investigation of the matter. It is not disputed by the learned Vakil for the Defendant that we have jurisdiction to send this case back to the District Judge for further inquiry to be made either by himself, or if he thinks right, by the learned Munsif: and, we think that the proper course to adopt is that this matter should be sent back to the learned District Judge in order that he may investigate the application which was made under the proviso of sec. 153 for the revision of the judgment of the learned Munsif. That proviso is to this effect: “the District Judge may call for the record of any case in which a judicial officer as aforesaid has passed a decree or order to which this section applies, if it appears that the judicial officer has exercised a jurisdiction not vested in him by law, or has failed to exercise a jurisdiction so vested or has acted in the exercise of his jurisdiction illegally or with material irregularity, and may pass such order as the District Judge thinks fit.”

Therefore, this case will go back to the District Judge, and if he has sufficient material already before him, to enable him to deal with the application under the proviso of sec. 153, of course he will deal with it. But if he thinks that it will be necessary to refer the matter to the learned Munsif for taking evidence as to the facts—which may be necessary for making the further enquiry—he will do so.

The result of my decision is that the judgment of the High Court and that of the District Judge must be set aside, and the Defendant must have the costs of this Rule (hearing-fee—two gold mohurs) and also the costs of the appeal to the High Court as well as the costs of the appeal to the learned District Judge.

Mookerjee, J.:— I agree that this application for review of judgment must be granted as the proceedings throughout this litigation have been characterized by a succession of inexplicable errors.

The Plaintiff instituted the suit to recover arrears of rent from her father. The amount claimed did not exceed Rs. 50 and the suit was tried by a judicial officer specially, empowered by the Local Government to exercise final jurisdiction under sec. 153 of the Bengal Tenancy Act. The Defendant pleaded that the Plaintiff had no title to the rent claimed, inasmuch as the interest of the superior landlord had been purchased, not by the Plaintiff but by himself. On this state of the pleadings, a question clearly arose “relating to an interest in the land as between parties having conflicting claims thereto”. The trial Court, however, declined to investigate this point and dismissed the suit on the ground that as the Plaintiff had failed to prove realisation of rent from the Defendant in previous years, she was not entitled to succeed in her present claim. The first question is, did an appeal lie against this decree. Now in order to determine whether an appeal lies from a judgment passed by a judicial officer specially empowered by the Local Government to exercise final jurisdiction under sec. 153 of the Bengal Tenancy Act, the test to be applied is, not whether one of the special questions mentioned in the section has been in controversy between the parties, but whether the decree has actually decided such a question. In the case before us, the judgment of the trial Court makes it clear that the question of conflicting title was not decided. Consequently, no appeal lay to the District Judge; yet an appeal was preferred to him. A preliminary objection that the appeal was incompetent was erroneously overruled; the appeal was heard on the merits, the judgment of the trial Court was reversed and a decree was made in favour of the Plaintiff on the ground that the interest of the superior landlord had been purchased by her and not by the Defendant. A second appeal was then preferred to this Court, and the decree of the District Judge was assailed on the ground that it had been made without jurisdiction. This was controverted by the Respondent, who argued that the appeal to the District Judge was competent. This contention was rightly overruled on the authority of the decision in Shilabati v. Roderigues(2). This Court (Holmwood and Mullick, JJ.), however did not give effect to the view that the appeal to the District Judge was incompetent, but proceeded to hold on the basis of the decision in Bhagabati Bewa v. Nanda Kumar Chuckerbutty that inasmuch as the decree of the District Judge had been passed without jurisdiction the appeal to this Court was incompetent. The result was that the appeal to this Court was dismissed and the decree of the District Judge stood untouched. On the present application for review of judgment, we are invited to consider the correctness of this decision.

On behalf of the Respondent, the view has been maintained, that if an appeal has been heard without jurisdiction, no appeal lies from the Appellate decree which must be deemed a nullity; reliance has been placed on the decision in Bhagabati v. Nanda Kumar and the observations in Amrita Lal Mukerjee v. Ram Chandra Roy(3). In my opinion, the proposition formulated by the Respondent is unsound in principle and is opposed to the authorities. It is clear that the observations in Bhagabati Bewa v. Nanda Kumar Chuckerbutty, though expressed in general terms, must be limited by the facts of the case then before the Court. The facts were such as made an appeal from the decision of the trial Court to the Subordinate Judge incompetent, and the decision of the Subordinate Judge was also of such a character as made a second appeal to this Court incompetent under sec. 153. That decision when analysed cannot rightly be regarded as an authority for the general proposition that if an appeal has been heard without jurisdiction, no appeal lies against the appellate decree. The observations in Amrita Lal Mukerjee v. Ram Chandra Roy are also capable of a similarly limited interpretation. On the other hand, we have the decision in Abdul Hossein v. Kashi Shahu where this Court heard an appeal against an appellate decree made without jurisdiction, and reversed the decision of the Court of appeal below. That the Court was competent to do so is plain from the decision of the Judicial Committee in Meenakshi Naidoo v. Subramaniya Sastri. We have finally the decision in Ranjit Misser v. Ramuddr Singh in which this very question was discussed and the rule was laid down that where jurisdiction is usurped by a Court in passing an order against which an appeal would lie if it had been passed with jurisdiction, an appeal against the order cannot be defeated on the ground that the order was made without jurisdiction. A decree made without jurisdiction possesses none the less the qualities of a decree as between the parties thereto, and if there is a statutory appeal from decrees made in suits of that character, the decree does not become unassailable because it has been made without jurisdiction. That an appeal lies against a decree made without jurisdiction is indeed also clear from the terms of secs. 99 and 115 of the Civil Procedure Code. In the case before us, as the Subordinate Judge had decided a question of interest in the land as between parties having conflicting claims thereto, an appeal did lie to this Court against his decree, under the express provisions of sec. 153; it is difficult to appreciate how that appeal could be nullified because the decree was vitiated by absence of jurisdiction in addition to other possible errors. I am clearly of opinion that the decision of this Court passed in appeal was consequently erroneous and that this Court should have reversed the decision of the District Judge on the ground that it had been passed without jurisdiction. This application for review must accordingly succeed and the decision of this Court set aside.

The result of our order is that the appeal to this Court stands revived for disposal under Or. 47, r. 8 of the Code of Civil Procedure. For reasons already assigned, that appeal must be allowed, the decree of the Lower Appellate Court discharged and that of the Court of first instance restored. But the question arises, what further course, if any, should be adopted in the interests of justice. It is plain that the decision of the trial Court was liable to be revised by the District Judge under sec. 153 of the Bengal Tenancy Act. As a matter of fact, an application for revision was presented to him, but when the appeal succeeded, the application was abandoned. Now that it has been held that the appeal was incompetent, the Plaintiff should clearly be allowed to fall back upon the application, which may be deemed to stand revived; it will consequently be open to the District Judge to proceed on the basis of that application and to make such order as he is competent to pass under sec. 153 of the Bengal Tenancy Act.

On these grounds, I agree with the order proposed by the Chief, Justice in this matter.

N.G