Sadai Muduli vs Prosadi Biswal and Another

Harries, C.J.—This is an application for revision of an order passed by the Collector of Balasore dismissing an appeal from a Deputy Collector who had decreed a suit for rent against the present petitioner. The defence to the claim for rent was that the plaintiff-opposite parties were not the landlords and that the rent had been paid to another person who was the landlord. The Deputy Collector who heard the suit, came to the conclusion that a relationship of landlord and tenant did exist between the plaintiffs and defendant and finding that the rent had not been paid he decreed the suit. The defendant himself appealed to the Court of the Collector and the appeal was dismissed.

Since a recent Full Bench decision of this Court, it cannot now be argued that an order of the Collector passed u/s 204, Orissa Tenancy Act, is not revisable by this Court. But the question arises whether or not this particular order should be revised.

It has been contended by Mr. P.C. Chatterji that the Collector had no jurisdiction to hear this appeal, though he frankly admits that it was his client who invited him to it. Further, it is clear that a party or both parties for that matter cannot give a Court jurisdiction by consent or agreement. It is contended that by reason of Sub-sections (2) and (3) of Section 204, Orissa a Tenancy Act, the appeal in this case lay not to the Collector but to the District Judge. The suit was for less than Rs. 100; but it is said that as the defendant had denied that the plaintiffs were his landlords, a question of title to the land arose. Section 204(2), Orissa Tenancy Act, is in these terms:

In suita where the subject-matter of the claim or dispute does not exceed one hundred rupees in value, and the judgment does not decide a question whether rent is payable for land or not, or a question relating to title to land or to some interest in land as between the parties to the suit, the judgment of the Collector shall be final:

Provided that, if the suit be tried and decided by a Deputy Collector exercising the powers of a Collector, an appeal shall lie from the judgment of the Deputy Collector to the Collector.

Sub-section (3) provides:

In suits other than those referred to in Sub-section (2) an appeal from the judgment of the Collector or Deputy Collector shall lie to the District Judge, unless the amount or value in dispute exceeds five thousand rupees, in which case the appeal shall lie to the High Court....

Clearly, therefore, if the present case decided a question relating to title to land or to some interest in land as between the parties to the suit the appeal would lie to the District Judge and not to the Collector. The issue in this case was whether a relationship of landlord and tenant existed between the plaintiffs and the defendant. The defendant alleged that a (third person, not a party to the suit, was his landlord. All that the Deputy Collector decided was that a relationship of landlord and tenant existed between the parties, and he did not decide any question of title as between the plaintiff and the person who, the defendant alleged, was the real owner of the land. In such circumstances, can it be said that the case decided a question relating to title to land or to some interest in land as between the parties? There is authority that a mere decision as to whether there exists a relationship of landlord and tenant is not the decision of a question relating to title to land as between the parties to the suit. Ramaprosad Roy v. Shorup Paramanik (82) 8 Cal. 712 is a case in point. This was a suit for rent below Rs. 100. The defendant set up a title of a third person, who was, however, not made a party to the proceeding. The lower Court found that a relationship of landlord and tenant existed between the parties, and that as the rent was unpaid, decreed the suit in favour of the plaintiffs.

The defendant appealed to the District Judge, who decided that the defendant had paid the rent, and reversed the decision of the Court below. The plaintiffs preferred a second appeal to the High Court. A Bench (Garth C.J. and Bose J.) held that no second a appeal lay by reason of Section 102, Bengal Act 8 of 1869, as the case did not decide any question relating to title as between parties having conflicting claims. Garth C.J. points out that as the ease was between landlord and tenant, there was no question of title as between parties having conflicting claims thereto. Had the third person, whose title was set up by the defendant, intervened in the suit and claimed the rent against the plaintiffs different considerations would have arisen.

A case very similar to the present is the ease in Ram Mohan Mohish v. Badan Barai (04) 8 C.W.N. 436 in which it was held that where in a suit for rent not exceeding t Rs. 100 in value the question was one between a tenure-holder and a raiyat and the latter set up the title of the superior tenure-holder who was not a party to the suit, no second appeal lay u/s 153, Bengal Tenancy Act, as the case did not decide any question relating to title to land or to any interest in land 1 as between parties having conflicting claims thereto. Another case of the Calcutta High Court is the case in Shilabati Debi v. Roderigues (08) 35 Cal. 547. In that case also, the question as to whether the case decided any question relating to title to land or to some interest in land as between parties having conflicting claims thereto, arose. All g that the case decided was whether the relationship of landlord and tenant existed between the parties, and at page 549 Maclean C.J. observed:

I think it is quite clear that the decree passed by the Munsif in this case did not decide any question relating to title to land or to some interest in land as between parties having conflicting claims thereto . It only decided the question of whether or not the relationship of landlord and tenant existed.

The only difference in language between the Bengal Statutes and Section 204(2), Orissa Tenancy Act, is that in the latter Act the phrase is "a question relating to title to land or to some interest in land as between parties to the suit," whereas in the Bengal Tenancy Act the phrase "parties having conflicting claims" is substituted for "parties to the suit." In my judgment, I should follow these Calcutta cases and hold that there was no decision in this case of a question relating to title as between the parties to the suit.

In any event I should be extremely reluctant to interfere in revision in this case when the petitioner has obtained the view of the Court which he deliberately moved. For the reasons which I have given, I dismiss this petition and discharge the rule. The opposite parties are entitled to costs and I assess the hearing fee at one gold mohur.