SREE RAJA VASIREDDI SREE CHENDRA MOWLESWARA PRASADA BAHADUR MANNE SULTAN Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OF KRISHNA

JUDGEMENT

(1.) The Courts below should not have disposed of these cases on the question of limitation. There can be no doubt that if the lands in suit were included in the assets of the Zamindary at the time of the Permanent Settlement, the Government would have no right to resume them. See Section 17 of Act II of 1894. Act VIII of 1869 makes it clear that any decision by the Inam Commissioner would not affect the actual rights of the parties entitled to the property. Therefore, if the Inam Commissioner with knowledge that the lands were post settlement inams passed enfanchisement proceedings, he would have acted ultra vires. Such proceedings need not be set aside under Article 14 of the Limitation Act. The learned Dt. Judge has relied on the dissenting judgment of Candy, J, in Surannama v. Secretary of State (1900) I.L.R. 24 Bom. 486. The judgment of Jenkins C.J., who differed from Candy, J., was upheld on a reference by Parsons, J., and has been followed in Balwant Bamachendra v. Secretary of State (1905) I.L.R. 29 Bom 480 and other cases. In our opinion these decisions lay down the law correctly. No doubt, as the learned Government Pleader suggested, if on investigation of the circumstances which would give jurisdiction, an officer decides facts in a particular manner and proceeds to deal with it further in the exercise of the powers vested in him, it may be contended that the order was passed intra vires and that mistake as to facts of the deciding officer would not oust his jurisdiction. But where the facts are undisputed and do not give the officer jurisdiction, but he still erroneously holds that he has jurisdiction to deal with the subject matter, his decision must be regarded as ultra vires.

(2.) The learned Judge in the Court below has not kept these considerations before him in dealing with the appeal. We find that the very question which would show whether the Inam Commissioner had or had "not jurisdiction is raised in the first issue; and in our opinion, without deciding it, the question of limitation should not have been considered. We reverse the decree of the Court below and remand the suits for trial on the merits. Costs to abide and will be provided for in the decree of the First Court.

(3.) Refund of stamp duty will be granted on application.