RAHIMUNNESSA BIBEE Vs. MAHADEB DAS

JUDGEMENT

(1.) This is an appeal on behalf of the plaintiff in an action for rent which has had a varied history. The plaintiff alleged that on the 2 November, 1905, he obtained an intermediate lease from the Maharaja of Burdwan within whose zemindary the land in the occupation of the defendant was situated. He, therefore, sued to recover rent from the defendant in respect of the years 1312 and 131:1. The defendant did not deny that he held lands under the Maharaja of Bardwan but he disputed the title of the plaintiff. He alleged that although the lease was granted by the Maharaja in the name of the plaintiff, the person beneficially interested in the lease-hold property was one Makhan Lal Mukerjee under whom the husband of the plaintiff was a servant, The Court of first instance stated the question in controversy to be, whether the relationship of landlord and tenant, existed between the plaintiff and the defendants. Evidence was adduced by the parties in support of their respective allegations and the Court came to the conclusion, that the plaintiff had no real interest in the disputed property under the lease executed by the Maharaja. In this view the original Court dismissed the suit. The plaintiff then appealed to the District Judge who held that it was not competent to the original Court to consider whether the plaintiff had any title to the property; he then framed two issues which arose for decision in the suit as brought, viz. first, whether possession had been delivered by consent of the plaintiff to some party other than the plaintiff; and, secondly, whether the ryots with the consent of the plaintiff had paid their rent to some party other than the plaintiff. The District Judge ultimately allowed the appeal, set aside the decree of the Court of first instance and remanded the case for re-trial. The original Court then considered the question laid down for trial by the District Judge and made a decree in favour of the plaintiff. The defendant appealed to the Subordinate Judge, who came to the conclusion that the order of remand was erroneous because as laid down by this Court in the case of Kailash Mandul v. Baroda Sundari Dasi 24 C. 711 : 1 C.W.N. 565, it was open to the defendant to allege and establish that the relationship of landlord and tenant did not exist between the plaintiff and the defendant, inasmuch as the plaintiff was not beneficially interested in the lease-hold property. The Subordinate Judge, therefore, considered him-Self bound in no way by the order of remand by the District Judge. He examined the evidence and came to the conclusion that the plaintiff had acquired no interest in the leasehold property. In this view, he set aside the decree made by the Munsif after remand and dismissed, the suit.

(2.) The plaintiff has now appealed to this Court, and on his behalf it has been contended that the Subordinate Judge had no jurisdiction practically to hear an appeal against an order of remand made by the District Judge. In support of this view, reliance has been placed upon the decision of the Madras High Court in the case of Jammalamadaka Subbalaksh-mamma v. Jammala Venkatarayadu 32 M. 318 : 5 M.L.T. 75 : 2 Ind. Cas. 525. On. behalf of the respondent, this position has not been controverted. But it has been argued that the decree made by the Subordinate Judge is obviously well-founded on legal principle, and that although it was not competent to the Subordinate Judge to question the legality of the order of remand made by the District Judge, yet upon the present appeal the whole matter is open for consideration by this Court. From this point of view, the learned Vakil for the respondent has invited us to confirm the decree of the Subordinate Judge. In answer to this contention, it has been argued by the learned Vakil for the appellant that if the order of the Subordinate Judge was made without jurisdiction, the proper course to pursue is to set aside his decree, to direct him to rehear the appeal on the assumption that the order made by the District Judge was correct and to leave it open to the present respondent to prefer an appeal against such decision of the Subordinate Judge and to have it reversed on the ground that the order of remand by the District Judge on which such decision would be based was erroneous in law. In our opinion, we are not compelled by any principle of law to adopt the course suggested by the learned Vakil for the appellant, it may be conceded that the contention of the appellant is to some extent supported by the decision in JammalaMadaka Subba Lahshmamma v. Yenkatarayadu 32 M. 318 : 5 M.L.T. 75 : 2 Ind. Cas. 525, where the learned Judges of the Madras High Court held that it was not competent to the High Court under similar circumstances to investigate the propriety of the order of remand under Section 591 of the Code of 1882. It need not be disputed that Section 591 is not comprehensive enough to cover a case of this description. But it is obvious that the contingency which has happened in the case before us was not anticipated by the framers of the Code and no provision has been expressly made in that behalf. Under such circumstances, the Court has inherent power to adopt such procedure as would do substantial justice and shorten needless litigation. The appellant invites us to hold that the decree made by the Subordinate Judge is erroneous, because he proceeded on the assumption that it was competent to him to question the validity of the order of remand made by the District Judge. But he invites us to stop there. The learned Vakil for the respondent, on the other hand, argues that if the decree made by the Subordinate Judge is questioned on the narrow ground urged by the appellant, the whole matter is set free, and it becomes open to this Court to consider, without recourse to a remand followed by an inevitable appeal, the real merits of the controversy between the parties. We feel no doubt whatever that it is open to us to adopt such a course ; and we are fortitied in this view by the analogy of the decision of the Judicial Committee in Parichat v. Zalim Singh 3 C. 211, 4 L.A. 159. In that case the plaintiff claimed in the alternative a decree for possession or a decree for maintenance. In the original Court, the claim for possession was overruled and a decree for maintenance was made. This decree was confirmed on appeal. Upon second appeal, it was argued that the decree for maintenance could not be supported ; this contention prevailed. But after reversal of the decree for maintenance, the Court proceeded to consider whether the plaintiff should not be awarded a decree for possession ; such decree was then made, although the plaintiff had been content with the decree for maintenance and had never assailed it on the ground that she was entitled to a decree for possession. The Judicial Committee ruled that the procedure adopted was right on principle. Their Lordships held that since the defendant successfully contended that the particular decree which had been made was improperly made, it became the duty of the Court as soon as this decree was discharged, to consider what would be the right decree to make upon the pleadings and the evidence. In the case before us, the learned Vakil for the appellant has successfully argued that the Subordinate Judge in hearing the appeal after remand was a Court of co-ordinate jurisdiction, and could not consequently sit in judgment over an order of remand previously made by the District Judge. He has, therefore, properly invited us to hold that the decree made by the Subordinate Judge cannot be supported. But we are unable to uphold his further contention that his success inevitably necessitates a remand to the Subordinate Judge. We mast now proceed to consider the case on the merits and to determine whether the order of remand made by the District Judge can be sustained in principle.

(3.) The District Judge, as we have already stated, has held that it was not open to the defendant to urge that the plaintiff was a mere benamdar for Makhan Lal and could not consequently claim rent from him. In support of this view, he has not mentioned any judicial decision ; but in fact, the view taken by him is opposed to a long series of decisions of this Court amongst which reference may be made to the cases of Donzelle V/s. Kader Nath Chuckerbutty 16 W.R. 186 : 7B. L.R. 720; Kedar Nath Chuckerbutty V/s. Donzelle 20 W.R. 352; Inderbuttee Koer V/s. Shiekh Makbool Ali Ticcadar 24 W.R. 44 and Kailash Mondul V/s. Baroda Sundari Dasi 24 C. 711 : 1 C.W.N. 565; possibly also reliance may be placed to some extent upon the case of Jainarayan Bose V/s. Kadumbini Dasi 7 B.L.R. 723 (Note). In some of these cases, there are expressions to be found in the judgments to the effect that the doctrine of estoppel recognized in English Law should not be adopted in this country. It is not necessary for us to consider, whether this view is not too widely expressed and whether such a position could be maintained in view of the provisions of Section 116 of the Indian Evidence Act. It is sufficient for us to hold that in cases where the doctrine of estoppel does not come into play, it is open to the tenant defendant to urge that the plaintiff, as benamidar for the beneficial owner, is not entitled to claim rent from him. We may point out that in the case before us, no question of estoppel arises. As already explained, the defendant was a tenant under the Maharaja of Burdwan. The plaintiff claims to intervene and to receive rent from the defendant on the ground that an intermediate tenure has been executed in his favour by the Maharaja on the 2 November, 1905. It is not alleged either that he was the landlord of the defendant at the inception of the tenancy, or that he inducted the defendant into the disputed land. Consequently upon the authority of the decision of this Court in the case of Lal Mahammed v. Kallanus 11 C. 519, we must hold that no question of estoppel arises. We may also observe that; as explained by this Court in the case of Lodai Mullah V/s. Kally Doss Roy 8C. 238, the plaintiff cannot possibly maintain the position that the defendant is not entitled to question his title. As was pointed out by the learned Judges in the case last mentioned, even where the plaintiff claims by a derivative title and the defendant has attorned to him, the defendant is not thereby estopped from showing that the title is really not in the plaintiff but in some other person. This position is amply supported by the cases of Rogers V/s. Pitcher 6 Taunt. 202 : 1 Marsh. 541; Claridge V/s. Mackenzie 4 M. & G. 143 : 61 R.R. 504 : 4 Scott (N.R.) 796 11 L.J.C.P. 72; Gregory V/s. Doidge 3 Bing. 471. It is difficult to appreciate upon what basis the learned District Judge could have held that it was competent to the plaintiff to realise rent from the defendant without any opportunity afforded to the latter to show that there was no relationship of landlord and tenant between the parties, because the plaintiff had acquired no title to the property under the lease executed in her name by the superior zemindar. The position, therefore, is incontestable that the view taken by the District Judge is erroneous and that the order of re-remand made by him should never have been passed. It would, therefore, be an idle formality to remand this case to direct the Subordinate Judge to proceed on the basis of the erroneous order of the District Judge and then to leave it open to the defendant to have that judgment reversed by this Court on the ground that the order of the District Judge should never have been made. We may point out that the position of the parties might have been different if the order of remand had been made by the District Judge under the Code of 1908. It might then have been contended that under Section 105, Sub-section (2), the omission of the defendant to prefer an appeal against the order of remand gave a character of finality to that order which could not subsequently be questioned by this Court.