Girwar Narayan Mahton and Others vs Kamla Prasad and Others

These two second appeals are by the same plaintiffs and arise out of two rent suits against two different sets of defendants, which though decreed in full by the trial Court, the Munsif of Bihar, have been partly dismissed by the Additional. Subordinate Judge of Patna.

The plaintiffs are cosharer landlords of the village where the rent-claimed lands are situated. The suits were for rents of 1333 to 1336 Fs. The plaintiffs'' shares consisting partly of the proprietary and partly of a leasehold interest, amounted to 7 annas 11 dams in the year 1333 and 13 annas 18 dams in the years 1334 to 1336 Fs. The rent was claimed at the rate of Rs. 7-8-0 per bigha. The defences raised included the denial of the extent of the plaintiffs'' share and of their right to collect their own share of rent separately, and a plea of payment, but the most important defence was the denial of the rate of rent, namely, Rs. 7-8-0 per bigha, it being asserted that it was only Rs. 5 per bigha. Both the Courts have overruled all other contentions of the defendants; as to the rate of rent the defence has been accepted by the lower appellate Court. In order to appreciate the questions involved in the dispute about the rate of rent it is necessary to state a few facts.

The defendants and one of the plaintiffs, namely, Shconarain Mahton, and the fathers of the two plaintiffs, namely, Ramadhin Mahton and Tulsi Mahton, and some other persons not before us, were formerly the ijaradars or zerpeshgidars (lessees) of the village under the former proprietors. In 1909 when the village came under survey and settlement operations, a large area of land was found in the possession of the lessees which they claimed as their occupancy holdings at an annual rent of Rs. 5 per bigha. The proprietors, on the other hand, asserted that they were the bakasht of the landlords and that the lessees were in possession of them in that capacity. Up to the settlement stage u/s 103-A, Ben Ten. Act, the contention of the proprietors prevailed, and the lands were entered as the bakasht of the landlords; but subsequently under a revisional order of the Assistant Settlement Officer in charge, raiyati khatians were prepared in favour of the defendants (among others), and the rent-claimed lands with a rent at Rs. 5 per bigha were entered as their occupancy holdings, and it was with these entries that the Record of Rights was finally published. Being dissatisfied with this, the landlords instituted a suit u/s 106, Ben. Ten. Act. That suit was withdrawn with permission to bring a fresh one of the same cause of action. Later on, some of the proprietors instituted a suit in the civil Court, which was numbered 233 of 1911. That suit was for a declaration that the defendants had no raiyati land in the village, that the lands in suit were the bakasht of the landlords and that the defendants were in possession thereof as ijaradars, and for a declaration of the plaintiffs'' right over those lands, together with an injunction against the principal defendant not to cultivate the lands after the expiry of their ijara.

The principal defendants in the two present rent suits were among the defendants in that title suit. That suit was compromised, the landlords agreeing to recognize the defendants as occupancy raiyats in respect of the lands in question, and the latter agreeing to pay rent at the rate of Rs. 7-8-0 per bigha. A decree was passed in the terms of this compromise. Since then the present plaintiffs have become landlords of a portion of the village either by purchase or by taking leases. It is on the basis of the compromise decree in Suit No. 233 of 1911 that the plaintiffs claim rent at the rate of Rs. 7-8-0 per bigha.

The defence in respect of this part of the case is contained in paras. 6 and 9 of the written statements of the defendants, and is to the effect that the defendants had no knowledge and information of the compromise, that they did not effect any compromise against the entries made in the survey khatian, that the compromise alleged was illegal and contrary to law, and that they were not at all bound by it. While the trial Court decreed rent at the rate of Rs. 7-8-0 per bigha, the learned Subordinate Judge has allowed rent at the rate of Rs. 5 per bigha only as entered in the Record of Rights and has ignored the compromise decree, holding that it was void and the Court''s jurisdiction to entertain the suit of 1911 was barred u/s 109, Ben. Ten. Act. He has also held that the compromise constituted an enhancement of rent which was void u/s 29 of the Act and that the compromise decree is also void on account of non-compliance with the provisions of Section 147-A, Ben. Ten. Act.

He has further held that as both the defendants in Second Appeal No. 1458 were minors at the time of the suit of 1911 and were not properly represented therein, the decree was void on this ground also. He has also held, reversing the finding of the trial Court, that the compromise was not given effect to. Unfortunately none of these grounds, except the last one, was specifically raised before the trial Court, or decided by it, and it seems that the appellants were prejudiced by the omission. They protested against these questions being raised in appeal, but the learned Subordinate Judge overruled the objection. The written statement was not clear enough to give the plaintiffs sufficient notice of the lines of attack which the defendants were going to adopt against the decree.

Some of the facts necessary to support or resist these lines of attack did require evidence, as is shown by the comment of the learned Subordinate Judge that there was no evidence that the mother of the minor defendants actually compromised the suit or signed the petition or that the vakalatnama authorized the pleader to file the compromise petition. As in our opinion the view of law taken by the learned Subordinate Judge is not correct, it is not necessary to pursue the matter further.

As to the decree being void for want of jurisdiction in the Court, we consider that the learned Subordinate Judge has failed to appreciate the distinction between an inherent want of jurisdiction and want of jurisdiction on grounds which have to be determined by the Court itself. The first makes the decree a nullity which can be ignored and need not be set aside. The second does not make the decree a nullity but only voidable; such a decree can be set aside by adopting the proper procedure, but cannot be collaterally impeached. For instance, if a Munsif tries and decrees a suit of Rs. 5,000 in value, as alleged by the plaintiff and not disputed by the defendant, or found by the Court, there is an inherent want of jurisdiction, and the decree need not be set aside by any particular procedure--it is a nullity and can be ignored. On the other hand, if a Court proceeds to try a suit, which is barred for instance by the principle of res judicata, however erroneous the decree of the Court may be, it cannot be collaterally challenged. The distinction between void and voidable judgment has been repeatedly laid down in a number of cases.

In the case of Satdeo Narain v. Ramayan Tewari AIR 1923 Pat 242, Das, J. observed:

A void judgment, on the other hand, is a judgment where there was a total lack of jurisdiction in the Court to render it. Such a judgment is a mere nullity. It is not necessary to set it aside. It can be completely disregarded whenever, it is pleaded either in support of a claim or in answer to a claim. In order then to establish that the judgment...is a mere nullity, it must be established that there was a total lack of jurisdiction in the Court to render the judgment... Where there does not exist any jurisdiction to try and determine the case, the judgment is void and it can be impeached collaterally.... Now jurisdiction has been classified under different heads by different Judges; but I think we may take that it falls under four different heads: (1) territorial jurisdiction, (2) pecuniary jurisdiction, (3) jurisdiction of subject-matter and (1) jurisdiction of the person.

In the case before us there is no doubt that the Court before which the suit of 1911 was instituted had jurisdiction under all these four heads. It is contended that a bar was placed on its power on account of the prohibition contained in Section 109, Ben. Ten. Act; but that is not an inherent want of jurisdiction. Assuming that the plea that the suit was barred under the provisions of Section 109, Ben. Ten. Act, had been specifically taken before the Munsif before whom the suit was pending, and assuming further, in view of the fact that the interpretation of that section had not been clearly laid down at that time, that he had held that section was no bar on account of the suit u/s 106, Ben. Ten. Act, having been withdrawn and on that ground or on the ground that the scope of the suit of 1911 was different, had decreed the suit, could the decree have been treated as a nullity? A Court, which is empowered by law to try a suit, has power to try it either rightly or wrongly the validity of a decree does not depend on whether it embodies a correct decision.

A judgment of a Court having jurisdiction over the subject-matter and the parties of the suit however erroneous, cannot be a mere nullity and cannot be collaterally challenged. To hold otherwise will mean that there is no finality in litigation as any unsuccessful party would then be at liberty in subsequent proceedings collaterally to challenge the decree as erroneous and therefore void. The question whether the suit of 1911 was or was not barred u/s 109, Ben. Ten. Act, was one within the competence of the Court to decide in the suit of 1911. Though that question was not raised and was therefore not expressly decided, the fact remains that the Court entertained the suit and passed a decree on consent. The bar of Section 109, Ben. Ten. Act, is a matter that ought to have been raised prior to the decree and cannot now be raised, as it could not have been raised collaterally if it had been raised in the suit of 1911 and, let us assume, wrongly decided against the defendants.

In the case of Dwarka Prasad Marwari v. Jai Barham AIR 1922 Pat 322 a question was raised whether a previous decision of a Court not having jurisdiction was final and conclusive between the parties if the question of jurisdiction was not specifically decided. Though it was held in that case as a fact that the question of jurisdiction had been actually raised and decided, Das, J. observed:

But if the question was not, in fact raised the plaintiffs are in no bettor position.... In my opinion, when there is no want of jurisdiction in the Court to try a suit, that is to say, when the want of jurisdiction is not apparent on the face of the proceedings, but the absence of jurisdiction depends on a fact in the knowledge of the party which he had an opportunity of bringing forward in the Court then, if he does not bring that fact forward but allows the Court to proceed with the judgment he ought not to be permitted to impeach the jurisdiction of the Court in any collateral proceeding.

Thus, if the question of jurisdiction is to be decided by the Court itself with reference to the existence or otherwise of a particular fact in bar of the trial, there is no want of inherent jurisdiction, and the judgment pronounced may be erroneous but not void and cannot be collaterally impeached. The question of jurisdiction in such a case is, like other questions of fact or law to be decided by the Court itself which otherwise has jurisdiction to try the suit. Ordinarily if a party does not raise the question of jurisdiction during the trial, he should not be allowed to do so after the proceedings were carried to completion (Casperz on Estoppel, Section 83) provided the question of jurisdiction depends upon the decision of some fact or point of Law. In this case, if the question of jurisdiction had been raised in 1911, it would have been for the Court to decide firstly whether Section 109, Ben. Ten. Act, applied after the previous suit u/s 106 of the Act, was withdrawn, and secondly whether the scope of the subsequent suit was the same as that of the previous suit.

No doubt, it is now settled law that the prohibition of Section 109, Ben. Ten. Act, applies even if the suit u/s 106 of the Act was withdrawn: see the decision of a Full Bench of the Calcutta High Court in the case of Becharam Choudhuri and Others Vs. Purna Chandra Chatterji and Others, , and the Privy Council decision in the case of Reshee Case Law v. Satis Chandra AIR 1929 PC 134, but the contrary view was previously taken in Chiodith v. Tulsi Singh (1912) 40 Cal 428 and Mahommed Ayejuddin v. Prodyot Kumar AIR 1921 Cal 741, which were expressly overruled by the Full Bench of the Calcutta High Court: see also Bibi Saleha v. Antu Ram (1918) 43 IC 973. It was therefore open to the Court to decide either way, and whatever would have been the decision it would have been final between the parties. Apart from this, it was open to the Court to decide that the scope of the suit was different.

Mr. Manohar Lal on behalf of the respondents has however contended that the bar created by Section 109, Ben. Ten. Act, affects the inherent jurisdiction of the Court, and therefore the decree is void. In our opinion it is not so. The criterion is that if the institution of the Court gives it jurisdiction to entertain a suit, but the jurisdiction may be barred by the existence of some extraneous facts, or the bar depends on an interpretation of the law, there is no inherent want of jurisdiction as the existence of those facts, or the interpretation of the law, is a matter for the Court itself to decide.

Reliance has been placed on the case of Banke Bihari v. Ram Anugrah AIR 1931 Pat 215 and of Rameshwar Singh v. Yunus Momin AIR 1923 Pat 101 on which the former decision was based. These two cases decided that a finding as to the amount of rent or of the bhaoli area in a rent suit after the question had been decided in a suit u/s 106, Ben. Ten. Act, did not operate as res judicata in a rent suit for subsequent years.

These cases are, we think, really against the contention of Mr. Manohar Lal. No doubt it was held that the previous decisions were not res judicata, but the decree for rent passed in contravention of the rent fixed in the cases u/s 106 was held to be a valid decree. In the present case the decree (passed with consent, no doubt) is not a decree for rent but a declaratory decree fixing the amount of rent and is final between the parties and binding upon the defendants.

Reliance has also been placed upon the case of Rajani Kanta Bag Vs. Raja Bala Dasi and Others, . But there a case triable by a Subordinate Judge was tried by a Munsif. It was a case of inherent want of jurisdiction and the decree was attacked directly in revision and not collaterally.

The same remark applies to the case of Manisha Eradi v. Siyali Koya (1887) 11 Mad 220 (FB). There the Small Cause Court had only a limited jurisdiction and the decree was attacked directly in revision.

It is settled law that the question of jurisdiction cannot be raised collaterally, except where there is a total lack of jurisdiction in the Court which passed the decree. Mr. Manohar Lal has drawn an analogy from the fact that a decree against a dead person has been held to be a nullity in spite of the fact that the question of the death of the man is to be extraneously proved, and though the Court had jurisdiction over the suit. He therefore contends that the Court before which a decree is used is entitled to go behind the decree in order to ascertain whether or not the Court which passed it had jurisdiction to do so. He has also relied upon the principles underlying the decisions in which it has been held that a decree against a minor, who was not properly represented in the suit, has been held to be a mere nullity. These are however a few exceptions in which the Court can go behind the decree itself, and can treat it as a nullity in spite of the fact that want of jurisdiction does not appear on the face of the decree itself. The principle underlying all these cases is that the decree is void on account of a total lack of jurisdiction, or, in other words, there is only a decree on paper, but not in fact.

As was observed by Manuk, J., in the Full Bench decision of this Court in the case of Jungli Lall v. Laddu Ram AIR 1919 Pat 430, at p. 264 (of 4 P.L.J.) where the question for consideration was the effect of a decree against a dead man:

In cases like the one before us that which purports to be a decree, was really passed only against a name on the record, the person behind that name having passed beyond the jurisdiction of all Courts.

The decree against a dead man is void on the ground that there was no person representing the name in existence against whom a decree could be passed. Though there is a decree on paper there is none in fact. When a question was raised in the Calcutta High Court as to how far an executing Court can go into the question of the validity of the decree, in the Full Bench case of Gora Chand Haldar and Another Vs. Prafulla Kumar Roy and Others, , Walmsley, J., said:

We have to start by accepting the proposition that the Court that made the decree had no jurisdiction to make it, and by that expression is meant that the Court had not such territorial jurisdiction as would authorize it to make the decree and not that having jurisdiction it exercised it erroneously. This distinction is of great importance, for, with all respect, I venture to think that the apparent conflict in reported cases is largely due to failure to keep this distinction clearly in view. It would be tedious to examine the numerous decisions in detail and it would not lead to any useful result. I think it may be said that the correct view, and the view for which there is a strong current of authority is that where the decree presented for execution was made by a Court which apparently had not jurisdiction, whether pecuniary or territorial or in respect of the judgment-debtor''s person, to make the decree, the executing Court is entitled to refuse to execute it on the ground that it was made without jurisdiction. Within these narrow limits I think that the executing Court is authorized to question the validity of a decree.

It will be seen therefore that in all these cases the underlying principle has been a total lack of jurisdiction in the Court which passed the decree. The same thing can be said in respect of a decree against a minor who is not properly represented in the suit. There also the decree is treated as a nullity, because the defendant being a minor the Court had no jurisdiction over him unless he is represented by a guardian. In the case of Tika Ram v. Tula Ram AIR 1930 Pat 480 where a lunatic was concerned, Kulwant Sahay, J., pointed out the distinction between a decree which is void and a nullity and a decree which is voidable, and then he said:

A decree can be said, to be void where there was a total want of jurisdiction in the Court to pass it.... The jurisdiction of a Court may be determined with reference to its territorial jurisdiction, its jurisdiction over the subject-matter of the suit, its pecuniary jurisdiction and its jurisdiction over persons impleaded in the suit.

It was held in that case that if a man under disability was not properly represented, the Court had no jurisdiction over him. In the case before us, as has been pointed out before, the Court in which the suit of 1911 was instituted had jurisdiction under all the usual heads in the suit, territorial, pecuniary, etc., and whether the jurisdiction to determine the suit was taken away, u/s 109, Ben. Ten. Act, was a matter to be determined by the Court itself.

Mr. Manohar Lal has further drawn an analogy from the fact that absence of the notice prescribed under Order 21, Rule 22, Civil P.C., makes further proceedings in the case a mere nullity, and he points out that in spite of the fact that the Court has jurisdiction to execute the decree, still the want of notice makes the whole proceedings void.

He has drawn our attention to the decision in the case of Gopal Chunder v. Gunamoni Dasi (1892) 20 Cal 370, where Beverley, J., observed that until notice was issued on the legal representative of the judgment-debtor, the Court had no jurisdiction to issue its warrant for the execution of the decree. The word "jurisdiction" was there used, clearly, in the general sense of power. The analogy has no application as there a necessary step in the institution of the proceeding was wanting. We are therefore of opinion that there was no want of inherent jurisdiction in the Munsif who passed the consent decree in the suit of 1911 and that decree cannot be collaterally impeached and is not a nullity.

Mr. Manohar Lal has argued that the Record of Rights being in his favour the plaintiffs cannot realise more rent than is entered therein and that the statutory presumption has not been rebutted. It is enough to say that the consent decree obtained after the publication of the Record of Rights must prevail against the Record of Rights. The next two grounds on which the learned Subordinate Judge has held the compromise decree to be void are equally untenable. There is no doubt that there was a bona fide dispute about the very existence of the tenancy between the then landlords and the principal defendants of the two rent suits before us, the former denying the tenancy altogether and the latter claiming a tenancy at the rate of Rs. 5 per bigha.

If under the circumstances the parties compromised the suit such a compromise does not offend against Section 29, Ben. Ten. Act.

In the case of Ferasat Ali Mulik Vs. Priamboda Devi, Ghosh, J., held that where on the refusal by the landlord to recognize the purchase of a non-transferable occupancy holding the purchaser agrees to pay a certain rent and is thus recognized as a tenant, the case does not come within Section 29, Ben. Ten. Act.

The same view was taken by a Special Bench of this Court in Askaran Baid v. Deolal Singh AIR 1929 Pat 568, a case which will be referred to later, and also in the case of Sheogobind Singh v. Mahabir Missir AIR 1922 Pat 654, another case which will also be referred to later and which has been referred to by the learned Subordinate Judge.

Regarding the defence of non-compliance with the provision of Section 147-A, Ben. Ten. Act, assuming that there was a non-compliance of its provision, it does not make a decree a nullity. This was also held in the case of Askaran Baid v. Deolal Singh AIR 1929 Pat 568, a decision to which one of us was a party. Das, J., observed that the Court which was in seisin of the case which resulted in a compromise decree, being properly in seisin of that case, its decision cannot be described as a nullity.

The same view was taken in this Court in the case of Sheogobind Singh v. Mahabir Missir AIR 1922 Pat 654 and also in an earlier case, Deolagan Singh v. Gulbansi Koer AIR 1924 Pat 374 and also in Loki Gope v. Ramnandan Prasad AIR 1929 Pat 287. The Calcutta High Court has also taken the same view in the case of Ishan Chandra v. Moomraj Khan AIR 1926 Cal 1101 where it was laid down that a decree passed without complying with the provision of Section 147-A, Ben. Ten. Act, was not a nullity though it was liable to be set aside in a proper case. Apart from this, there is always a presumption that a Court has acted in accordance with law, and we have no reason to suppose that the Court did not comply with the requirements of law when it accepted the compromise between the parties. This is no ground for ignoring the decree in the present case, especially when the suit in which the compromise was effected was not between landlord and tenant as such.

The next question to be considered is whether the decree is binding upon Kamla Prasad and Thakur Prasad, the defendants in Second Appeal No. 1458 of 1931 corresponding to Appeal No. 120 of 1931 before the lower appellate Court, (the No. 119 of 1931 as given in the judgment of that Court is apparently a clerical error). These defendants were admittedly minors at the time of that suit, and were sued as sui juris. The fact of their being under age was brought to the notice of the Court, and it ordered the plaintiffs to take necessary steps. Before any step could be taken, the two minor defendants appeared through the guardianship of their mother, their natural guardian, and filed a written statement. Later on she compromised the suit. The learned Subordinate Judge has under the circumstances held that the minors were not properly represented and were not bound by the compromise decree.

The learned Subordinate Judge has confused an agreement which has not ripened into a decree of a Court and a compromise decree which like other decrees of the Court is binding unless it can be shown to have been passed without jurisdiction and is thus a mere nullity, or is shown to have been otherwise set aside. Once a decree is passed, the party relying upon it need not prove facts anterior to the decree. It is for those who challenge it to show that it is not binding.

Now the simple question in this case is whether the defendants, who were admittedly minors, were properly represented in the suit. In our opinion they were. No doubt, as the cause title of the suit shows, they were sued as majors; but it is clear that they did appear in the suit through their mother and filed the written statement. That the heading of the plaint was not amended or a formal order for the appointment of the guardian was not passed by the Court, was a mere irregularity, and does not vitiate the decree. The Court accepted the guardian by permitting her to compromise.

In the case of Mt. Bibi Walian v. Banke Behari (1903) 30 Cal 1021 it was held that where it appeared that in a suit the minor''s interest was effectively represented by their mother with the sanction of the. Court, the absence of a formal order appointing her and an immaterial defect of service of summonses on the minors and their guardian not shewn to have caused any prejudice to them, are mere irregularities and would nor be a ground for reversing the judgment and the execution proceedings on appeal, or in a separate suit for that purpose. The learned Subordinate Judge has distinguished that case on the ground that there the minors were sued as such, and in the present case they were sued as majors. The distinction is however immaterial as long as the interest of the minors was properly represented through a guardian who was allowed by the Court to proceed with the defence.

Mr. Manohar Lal has referred us to the case of Partap Singh v. Bhabuti Singh (1918) 35 All 487, where their Lordships of the Judicial Committee ignored the appointment of a guardian when the amendment of the plaint showing such an appointment was not signed by the Judge. The ratio decidendi of this case was that there was no bona fide application for the appointment of a guardian, and the leave of the Court was not obtained to enter into the compromise on behalf of the minors. In the case before us there is an order of the Court sanctioning the compromise.

In Partap Singh''s case (1918) 35 All 487 the chief ground for setting aside the decree was that the guardian, who had compromised the suit, had acted in collusion and against the interest of the minors. This is not the case here. Partap Singh''s case (1918) 35 All 487 was referred to in this Court in the case of Ram Sundar and Another Vs. Amrit Pajiyar and Another, a case which has already been referred to in connexion with the jurisdiction of the Munsif to pass a decree. The distinction between Partap Singh''s case (1918) 35 All 487 and the present case is this: that in that case there was nothing on the record to show that the Judge accepted the guardian who compromised the suit, whereas in this case there is an order of the Court allowing the guardian to compromise the suit.

In Ram Sundar and Another Vs. Amrit Pajiyar and Another, already referred to, it has been held that if a minor is represented by a proper guardian, who is not disqualified to act, the jurisdiction of the Court to try and determine the case as against the minor is complete though the procedure prescribed by law was not strictly followed. Mr. Manohar Lal has laid great stress upon the cause title of the suit as giving or defining jurisdiction to the Court, and he points out that in this case the defendants continued to be shown as sui juris on the record of the case. In our opinion, the critical thing to be looked into is whether or not the minors were really represented in the suit; non-observance of form is merely an irregularity.

It was held in the case of Seshagiri Rao v. Tangaturi Jagannadhan (1916) 39 Mad 1031 that the fact that the plaint showed a defendant who in fact was a major to be a minor did not make the decree a nullity.

A similar view seems to have been taken in the case of Radhakrishnaswami Naidu v. Annamalai Chettiar AIR 1922 Mud 301. In our opinion non-amendment of the cause title was nothing more than an irregularity.

Last of all, it has been contended by Mr. Manohar Lal that the mother was not entitled to compromise on behalf of the minors.

He has relied upon the case of Mir. Sarwarjan v. Fakhruddin Mahomed (1912) 39 Cal 232. This decision has no application, as there the Judicial Committee refused to a minor the specific performance of a contract entered into on behalf of the manager of his estate on the ground that there was no mutuality as the defendant could not have enforced specific performance of contract against the minor.

In this case the compromise was entered into by the mother who in the absence of the father was the natural guardian of the minors, and she was perfectly entitled to compromise: see Nirvanaya v. Nirvanaya (1885) 9 Born 365. The compromise was neither fraudulent nor collusive. Not only these two minors but all other defendants whose interest was similar to that of the minors compromised the suit on the same terms. The Court expressly sanctioned the compromise on behalf of the minors.

The attention of the lower appellate Court was drawn to the case of Ramghulam Sahu v. Sham Sahai Das AIR 1920 Pat 750 where the same principle was applied. The fact that there the question arose in an execution proceeding makes no difference. It was laid down in the case of Hitendra Narayan Singh and Others Vs. Sukhdeb Prasad Jha and Others, that non-compliance with the provisions of law in the matter of the appointment of a guardian will not vitiate the proceedings unless it is shown that the minors had actually suffered by it. Taking into consideration she fact that the other tenants of the village, who were well able, to look after their own interest compromised he suit on the same terms as the mother clearly shows that their interest was sufficiently protected, and the compromise decree cannot be questioned. The learned Subordinate Judge has commented upon the fact that the authority of the pleader who compromised the suit has not been proved. There is however a difference between an authority to effect a compromise and an authority to file a compromise petition. The latter may be covered by general authority to represent a client in Court, while the former stands upon a different footing.

The distinction between these two has been pointed out in the case of Thenal Animal v. Sokkammal (1918) 41 Mad 233. The learned Subordinate Judge has relied upon the case of Sourendra Nath v. Tarubala Dasi AIR 1930 PC 158 which has however no application to the facts of this case. In this case, as it appears from the petition of compromise filed, the compromise was effected by the parties themselves, and not by the pleader. The pleader simply filed the petition. As to the proof of the fact that the mother did actually compromise the onus has wrongly been placed upon the plaintiffs. It was not necessary for them to go behind the decree. As has been pointed out before, once a decree is passed it is for those who want to challenge it to prove the circumstances which would make the decree void.

In this view of the case it is not necessary to discuss whether the compromise was given effect to. A compromise decree has been passed and, if that decree is not void, the plaintiffs are entitled to realize rent at the rate mentioned in that decree. And here again, it is for those who allege that the decree was not given effect to, to prove that rents were being realized at the rates alleged by the defendants. There is no finding by the learned Subordinate judge that this was the case. His findings are of a negative character to the effect that the plaintiffs had not been able to prove that the rents were realized according to the rate decreed, which to our minds is absolutely immaterial and misplaces the onus.

The result is that the appeals are allowed, the decrees of the learned Subordinate Judge are set aside and those of the Munsif restored with costs throughout.