KUNWARIA Vs. PANDI

JUDGEMENT

(1.) 1. The respondent brought a suit for possession of a village with sir and khudkasht land, which had been held by Sunhar, the husband of appellant 1 Mt. Kunwaria, as a protected thekedar, and for a declaration that the order passed by the Deputy Commissioner transferring the theka to Tikaram appellant 2 did not affect the rights of the respondents and that the appellants had no interest in the village. The facts have been set out in the judgments of the lower Courts and need only be briefly stated. Sunhar died in 1898 and was succeeded in the theka by his two widows Mt. Baddo and Mt. Kunwaria. Mt. Baddo died about three or four years ago and then Mt. Kunwaria succeeded to the whole theka. An application was made by Tikaram to the Deputy Commissioner Under Section 112, C.P. Land Revenue Act, stating that he was a grandson of Sunhar's sister and entitled to succeed to the theka as a reversioner upon the death of Kunwaria. Kunwaria appeared in the enquiry made upon the application and stated that she had no objection if the theka was recorded in the name of Tikaram. A report was then submitted by the Sub-Divisional Officer to the effect that Tikaram was the only heir of Kunwaria and was entitled to be maintained out of the income of the theka and was, in fact being so maintained, and that Kunwaria made no objection to the transfer; a recommendation was therefore made that the theka should be transferred to Tikaram. Upon that report the Deputy Commissioner passed the following order: Approved as recommended by the SectionD.O. Under Section 112, Land Revenue Act.

(2.) TIKARAM was then put in possession of the theka. On 26th May 1926, the respondents made an application Under Section 109(3) of the Act that they, as proprietors of the village, should be put in possession, as the transfer in favour of Tikaram was contrary to the provisions of Section 109(1). Upon their application the Sub-Divisional Officer made a report stating the facts of the. previous application Under Section 112 and giving an opinion that the transfer in favour of Tikaram was according to Section 112, Land Revenue Act, and recommending that the application of the respondents should be rejected; upon which the Deputy Commissioner rejected the application on 7th October 1926. The respondents thereupon filed their suit on 21st December 1926.

(3.) I am of opinion that the view taken by the trial Court was correct and that of the District Judge is wrong. Distinction must be drawn between an erroneous order and an order without jurisdiction, and the District Judge has, I think, failed to draw that distinction. There can be no doubt that the Deputy Commissioner has power to transfer a theka Under Section 112, Land Revenue Act, on the application of any member of the family of a protected thekedar, who is entitled to share in the theka or to be maintained out of its income, in favour of such a member; and, if an application is made purporting to be such member, and the Deputy Commissioner upon enquiry holds that that member is entitled to be maintained out of the income and transfers the theka in his favour, his, order cannot be without jurisdiction even though, as a matter of fact, as in the present case, the applicant was not entitled to be maintained out of the income. The application could only be made to the revenue Court, and the revenue Court was the only Court that could decide such a matter. The application purported to be by a member of the family entitled to be maintained out of the income of the theka, and had the applicant been entitled to be so maintained, the order of the Deputy Commissioner would have been correct and unassailable. The fact that the applicant was not strictly entitled to be maintained out of the income of the theka, though he appears to have been actually so maintained, cannot, in my opinion, divest the Deputy Commissioner of his jurisdiction, even though the Deputy Commissioner made a mistake in the matter. I would hold that an order passed by a competent revenue Court upon a matter within its jurisdiction is not ultra vires or without jurisdiction even though it is based upon a mistake of fact. In such a case Section 220, Land revenue Act, will bar the jurisdiction of the civil Court to question the order of the revenue Court. The civil Court would only have jurisdiction if it be found that the revenue Court acted without jurisdiction, e. g., if a condition precedent for the exercise of jurisdiction was wanting, or the order of the Revenue Court was based upon a mistaken view of law. I have been referred in this connexion to Malkarjun v. Narhari [1901] 25 Bern. 337, Sadasheo v. SectionN. Fadnavis A.I.R. 1926 Nag. 379 and Jagannath v. Khuba [1909] 5 N.L.R. 176. I would quote the following passage which occurs at p. 347 of the Bombay ruling: The Code goes on to say that the Court shall issue a notice to the party against whom execution is applied for. It did issue notice to Ramlingappa. He contended that he was not the right person, but the Court having received his protest decided that he was the right person, and so proceeded with the execution. In so doing the Court was exercising its jurisdiction. It made a sad mistake, it is true; but a Court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken the decision, however wrong, cannot be disturbed. The real complaint here is that the execution Court construed the Code erroneously. Acting in its duty to make the estate of Nagappa available for payment of his debt, it served with notice a person who did not legally represent the estate, and on objection decided that he did represent it. But to treat such an error as destroying the jurisdiction of the Court is calculated to introduce great confusion into the administration of the law. Their Lordships agree with the view of the learned Chief Justice that a purchaser cannot possibly judge of such matters, even if he knows the fact; and that if he is to be held bound to inquire into the accuracy of the Court's conduct of its own business, no purchaser at a Court-sale would be safe. Strangers to a suit are justified in believing that the Court has done that which by the directions of the Code it ought to do.