GEORGE Vs. VARKEY

JUDGEMENT

(1.) THE suit out of which these proceedings arise was between two Christian brothers. Recovery of a slice of immovable property with the building thereon was the relief sought for and granted. THE basis of the action was trespass by the defendant. THE case was fought in three courts and ultimately the plaintiff succeeded. Before execution was applied for, the defendant's son approached the trial court with a petition stating that a part of the site and a building thereon were given to him by his father under an arrangement some years after the litigation started and that bit of property and building are not liable to be surrendered in execution of the decree. THE decree-holder opposed this application. THE court below found against the petitioner and held that he was not in possession as alleged. It also held that in law the application was not maintainable. Hence this revision.

(2.) THE question of fact cannot be and has not been canvassed before us. THE question of law alone was presented before us. We say "presented before us" with a purpose because learned counsel for the petitioner did not canvass the correctness of the opinion of the court below. Indeed he was supporting that view as it suited his purpose because, if the court below had jurisdiction to entertain the application and determine it, the finding recorded by it on the question of fact would affect him. Learned counsel for the respondent also supports the opinion held by the court below. Thus an interesting situation of counsel, on both sides agreeing that particular view is the correct view to be taken has arisen and the court called upon not to choose between conflicting views urged by the contending parties but to consider whether the view that they conjointly contend for is correct.

(3.) EXCEPT the dissenting judgment of Mukerji, J. , and the decision of a single judge in A. I. R. 1925 Rangoon 374, there is no support for the view that a stranger is entitled to approach the court for adjudication of his title to or possession of property before the property is either attempted to be taken out of him and on his obstruction the person entitled to possession seeks to obtain delivery after removal of the obstruction, or before he is dispossessed and he complains of dispossession and seeks restoration. The question has arisen in almost all the courts in India and they are uniform in their view against the maintainability of an application by a stranger before his dispossession. Reference may be made to: 1. Sobha Ram v. Tursi Ram (I. L. R. 46 Allahabad 693); 2. Kiron Shoshi Dassee v. The Official Assignee of Calcutta (I. L. R. 60 Calcutta 8); 3. Hargolal v. Chendu Lal (A. I. R. 1923 Lahore 145); 4. M. T. Talia Bibi v. Nur Din (A. I. R. 1928 Lahore 672); 5. Milkhi Ram v. Basant Singh (A. I. R. 1931 Lahore 686); 6. Daroga Prasad v. Bhagwati Prasad (A. I. R. 1935 Patna 253); 7. Lonan v. Lekshmi (V Cochin Law Journal 432); and 8. Nityananda v. Pala Dei (A. I. R. 1952 Orissa 120 F. B. ). In the Cochin case the obstructor who succeeded at the enquiry conducted upon his "ante-delivery petition" by the court below contended that the opposite party having acquiesced in the enquiry conducted by that court is estopped from questioning its competency. In repelling this contention the learned judges say at page 435: "a plea of estoppel cannot be allowed to defeat the provision of a statutory enactment which affects the jurisdiction of a court, as a party cannot by his admission or his conduct, confer jurisdiction where none exists. Where no jurisdiction exists neither the consent not the acquiescence of parties can invest the court with any authority so as to convert the proceedings before it into a proper judicial process. If the court has no authority in law to hear and decide a matter, its decision is one made without jurisdiction and the judgment of a court without jurisdiction is a nullity. "