Deolagan Singh and Another vs Mt. Gulbansi Koer

Das, J.—This is an appeal on behalf of the tenants defendants in an action for rent.

It appears that there was a previous rent suit and that suit was compromised by the defendants agreeing to pay the rents according to the Batwara Record. Subsequently there was a Cadastral Survey and it appears that the Survey authorities came to the conclusion that the enhancement of rent was illegal and contrary to the provisions of Section 29 of the Bengal Tenancy Act. This suit was instituted before the Record of Rights was finally published but it was actually decided after the publication of the Record of Rights. The tenant defendants took the plea that the enhancement of rent; was illegal and that they were not bound by the consent decree which was passed in that previous rent suit.

The Court of first instance came to the conclusion that the consent decree was illegal and that it was competent to go behind it. On the facts the learned Munsif agreed entirely with the contentions of the tenants and in the result decreed the landlord''s suit at the rate recorded in the Record of Rights.

The landlord carried an appeal to the learned Subordinate Judge of Gaya. The learned Subordinate Judge came to the conclusion that the rent of the defendants had been illegally enhanced but he thought that he could not go behind the consent decree and in the end he gave a full decree to the landlord substantially as claimed by her.

The tenant defendants appeal to this Court and on their behalf it is urged by Mr. Nirsu Narain Sinha that the decision of the learned Subordinate Judge is erroneous and ought to be set aside.

In my view the learned Subordinate Judge decided the point which was argued before him correctly and in any event his findings of fact are sufficient for the disposal of the appeal. I will deal very shortly with the point of law that was argued before us by Mr. Nirsu Narain Sinha. The argument was this. That in the first suit for rent which was compromised and which compromise is challenged in this suit, the learned Subordinate Judge in so far as he did not record evidence as to the rent which was legally payable immediately before the period in respect of which the dispute arose, acted without jurisdiction and that accordingly the consent decree is a nullity. Section 147A paragraph 3 provides as follows:

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 rant which was legally payable immediately before the period in respect of which the dispute arose.

The question which was have to determine is this. Supposing the Court which passed the consent decree did not act in conformity with paragraph 3 of Section 147 A of the Bengal Tenancy Act, can it be said that the consent decree which it does pas3 is a nullity which every Court is entitled to ignore? The question arose in this Court not, it is true, with reference to a case u/s 147 A of the Bengal Tenancy Act but with reference to a case where a Court allowed the suit to be withdrawn under Order 23, Rule 1 of the Civil Procedure Code. Order 23 Rule 1 gives a Court power to grant the plaintiff permission to withdraw from a suit if it appears to the Court that his suit must fail by reason of some formal defect. In the case of Raj Kumar Mahto v. Ram Khelawan Singh 1922 Pat 44 the Court did not record a formal order that the suit would not fail by reason of some formal defect. In fact the petition of the plaintiff himself made it clear that he thought that there were certain legal defects in his way, but notwithstanding that there was no proof before the Court that the suit would fail by reason of some formal defect, the Court did grant the plaintiff permission to withdraw from the suit with liberty to bring a fresh suit. The question before the Full Bench was whether the Court in granting the plaintiff permission to withdraw from such suit acted without jurisdiction and the Court came to the conclusion that however erroneous the decision of the Court might have been it could not be said that it acted without jurisdiction. The Chief Justice of this Court in delivering the judgment of the Court said this: "If the Court is not satisfied that the circumstances contemplated in the rule exist, then, in my opinion, it has no jurisdiction, to make the order as the jurisdiction is only conferred where the Court is so satisfied. If this condition is not fulfilled, I think it is clear that the jurisdiction does not arise. In all cases, however, where an order under the rule is made, it must be presumed, in the absence of proof to the contrary, that the Court was satisfied that the condition in one or other of the Sub-rules (a) or (6) existed. Otherwise it is hardly conceivable that it would have made the order. In order successfully to challenge the jurisdiction it is not, in my opinion, sufficient merely to point out that no reasons are assigned by the Court in making the order. In the present case the Munsif acted with the petition before him, and it must be presumed, in the absence of any evidence to the contrary that the circumstances mentioned in the rule existed at least to 1m satisfaction. Once this is conceded, as I think it must be, it follows, in my opinion, that the Munsif had jurisdiction to make the order, and it is not open to the Court in the subsequent suit to question the propriety of his decision, or to consider whether in fact there existed a formal defect or other sufficient ground for the order."

Now in this case the learned Subordinate Judge says that the Munsif trying the first suit "recorded some sort of evidence, explained the terms of the compromise petition which distinctly state the Jama fixed by the Batwara Officer and consequently paid by the defendants and asked the Court to cancel the Jama fixed by the Survey." Can it be said that the Court was not satisfied that circumstances existed entitling it to pass a compromise decree u/s 147A paragraph 3 of the Bengal Tenancy Act. The learned Subordinate Judge says that he cannot hold that the Court did not record the Jama. In my opinion it is impossible upon these findings to hold that the decision of the Munsif in the first rent suit which ended in a compromise was a decision without jurisdiction. If that decree stands then it is conceded that the question which has been raised by the tenant defendants in this suit cannot at all be raised.

Apart from all other consideration the learned Subordinate Judge has recorded a distinct finding of fact that there was a bona fide dispute between the parties in regard to the rent payable by the defendants to the plaintiff. In my opinion the suit was rightly decided by the Court below and I would dismiss this appeal (1352) with costs. The analogous appeals are also dismissed but without costs.

Adami, J.

I agree.