Askaran Baid vs Deolal Singh

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 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 Lai 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 Sections 29 and 147A, Ben. Ten. 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 Mahton [1916] 35 I.C. 445. 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 u/s 147A, Ben. Ten. 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 Mahton [1916] 35 I.C. 445 that a compromise decree passed in contravention of the provisions of Section 147A, Ben. Ten, Act, is a nullity.

This Court in so deciding followed a decision of the Calcutta High Court in Sarjugsharan Lal v. Dukhit Mahto 17 C.W.N. 496. 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 decision of the Calcutta High Court. In Ishan Chandra Banikya Vs. Moomraj Khan, it was held by a Division Bench of the Calcutta High Court that a decree under the provision of Section 147A, Ben. Ten. 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 commise were such that if embodied in a contract they could be enforced under the Act was not followed although such a decree might 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 17 C.W.N. 496 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 Chaudhury Vs. Charan Singh and Another, a Single Judge of this Court followed the decision of the Calcutta High Court in Sarjugsharan Lal v. Dukhit Mahton 17 C.W.N. 496 but before that case was decided a Division Bench of this Court had already taken the view that |a consent decree u/s 147A could not be regarded as a nullity on the ground that the formalities indicated in that section were not complied with: see Sheo Ram v. Ram Bhorosey AIR 1923 Oudh. 9 . This judgment was not brought to the notice of the Single Judge deciding the case of Kunj Behary Chaudhury Vs. Charan Singh and Another, and in the later case of Loki Gope and Others Vs. Ramanandan Prasad Singh, the learned Judge who decided the case reported in Kunj Behary Chaudhury Vs. Charan Singh and Another, stated that his decision would have been different had the decision of the case in Sheo Ram v. Ram Bhorosey AIR 1923 Oudh. 9 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 properly in seisin of that case and it must follow that his decision cannot be 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 Huddersfield Banking Co. v. Lister [1895] 2 Ch. 273 and on numerons decisions of this and other Courts. The proposition in the form in which it is stated by I the learned advocate for the respondent need not be disputed; but in my opinion a decree u/s 147A, Ben. Ten. 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 u/s 147A, Ben. Ten. Act, is altogether a, different matter. It would appear on a reference to Section 147A, Ben. Ten. 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 23, 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 satisfied 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 para. 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 u/s 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 [1895] 2 Ch. 273 and we must follow the decisions of our Courts directly u/s 147-A Ben. Ten. 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 ennunciated in Section 147A, Ben. Ten. 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, Ben. Ten. Act. The fact that in a suit for trespass the plaintiff is claiming an alternative remedy such as Section 157, Ben. Ten. Act. concedes to him does not make the suit any more a suit between landlord and tenant. In my judgment therefore Section 147A, Ben. Ten. 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 u/s 147A, Ben. Ten. 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. He 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 these 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, Ben. Ten. Act.

For these reasons, I am of opinion that the decisions arrived at 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.