SATISH CHANDRA CHATTERJEE Vs. KALI CHARAN CHOUDHURY

JUDGEMENT

(1.) This is the plaintiff's appeal in a suit for rent for the years 1321 to 1324 B.S. The plaintiff claims that he is the landlord of the defendants in respect of a jama of Rs. 90-8-0 and odd gandas, the superior interest in which fell to his share upon a partition made in the year 1914 under the Bengal Estates Partition Act V. (B.C.) of 1897. The Munsif of Basirhat decreed his suit: but the Subordinate Judge of 24 Parganahs, on appeal has dismissed the suit.

(2.) The facts upon which the case has been decided by the learned Subordinate Judge may be stated as follows:-Originally the plaintiff with a number of co-sharers was the landlord in respect of a tenancy comprising lands in a number of mouzas, of which tenancy the rent was Rs. 251-0-6 pies. In course of time, the tenancy by arrangement, in the first instance, was split up, and about the year 1913, if not much earlier, the tenants were claiming that the original jama of Rs. 251 odd had entirely gone and that in point of fact and law, there were created twelve separate jamas, certain of the landlords having the superior interest in each of those jamas, and certain of the tenants having the tenants interest in them. It appears further that in 1913 a decree was obtained which proceeded on the basis that by this time at all events the claim that the original jama had been legally split up was well-founded. In these circumstances in 1914, the sharers entitled to the superior interest effected a partition under Act V of 1897. The Deputy Collector, so far as appears, proceeded quite regularly under that Act. He made out the necessary lists of assets, he gave the necessary notices and he found that the original jama of Rs. 251 odd still subsisted. Accordingly, it became necessary for him in making the partition to exercise the powers conferred by Section 81 of the Act and there again proper notices were served on the tenants concerned. None of the tenants concerned with a single exception appeared to object. One tenant did appear and did object but his objection was over-ruled and he did not appeal. The learned Subordinate Judge in the present case has found that the decree of 1913 was not brought to the notice of the Deputy Collector, so that in exercising his powers under Section 81 the position is that having jurisdiction to enquire into the facts, he did enquire into the facts and came to a conclusion which, on the evidence adduced, was correct enough. But it now turns out by reason of a further piece of evidence that his conclusion was in fact incorrect. Now, in these circumstances, the view taken by the learned Subordinate Judge in the present rent suit is that it being established that, there was no one jama of Rs. 251 but that this bad, at the time of the partition, been split into twelve different jamas,, the Deputy Collector had no jurisdiction to amalgamate the different jamas and then to sub-divide them again: that his order was entirely without jurisdiction; and that, therefore, the plaintiff's claim which is based upon that order must fail.

(3.) In answer to this contention, the learned Vakil for the Appellant relies, in the first place, upon Section 119 of the Estates Partition Act. That section provides that no order of certain kinds therein enumerated " shall be liable to be contested or set aside by suit in any Court or by any means other than those expressly provided in this Act." The orders which are so guarded include orders made under Chapter IX. But when Chapter IX is mentioned, there is introduced this exception "except Section 81." It is to be noticed that with regard to certain orders made under Section 84; 86 and 88, an express right is given to bring a suit to modify or set aside the order. The first question is whether Section 119 imports that nobody can challenge an order under Section 81 except by bringing a suit. In my opinion that is not a possible construction. All that is done here is to exclude orders made under Section 81 from the wide prohibition against bringing a suit or doing anything else to challenge. Another question arises upon this section. As Section 81 is excepted from a provision which forbids not only the bringing of a suit to set aside but forbids the use of any means other than those expressly provided in this Act, is it a correct inference to say that this impliedly means or imports that, in the case of Section 81, it is liable to be challenged not only by bringing a suit but by taking the point in any other fashion? There again, in my judgment, the inference would be unsound. Section 119 does not, in my opinion, prejudice the question either way. It seems to me that if a person has the right to bring a suit or to challenge the order by any other means, the section leaves him that right. But the section gives no right in respect of Section 81. I have, however, no doubt at all that a suit does lie to set aside an order made under Section 81 if it turns out that by that order a tenure or holding has not been split up but an amalgamation of tenures and holdings has been divided contrary to the meaning of the section. In such a suit I am fairly clear that it would be no answer at all to say that the Deputy Collector had jurisdiction to enquire into the facts and that if he has found the facts wrongly his order cannot be interfered with. For the purposes of such a suit, it seems reasonable to say that the Deputy Collector could not give himself jurisdiction under Section 81 by coming to a wrong finding of fact. In my opinion, the question in this case, since no suit has been brought to set aside the order under Section 81, is really whether in the circumstances and upon the facts found the tenants are entitled to treat this order as a mere nullity-an order which no man is required to pay any attention to, and an order which does not even require to be set aside. That question, in my opinion, in view of the draftsmanship of the Act, has extraordinary difficulty and to resolve it, it is necessary to make a careful study of the scheme of the Estates Partition Act.