1956 Supreme(Pat) 141

PATNA HIGH COURT
V.Ramaswami and Raj Kishore Prasad JJ.
Nanda Gopal
Versus
Baidyanath Dutta
Letter Patent Appeal No. 20 of 1954 ;
Decided On : OCTOBER 05, 1956

1. A decree can be passed in favour of a co-sharer defendant, even if he was not a plaintiff, or a co-plaintiff, and, he never sought to be so, provided that the court has determined the rent due to the co-sharer defendant. 2. The Deputy Commissioner has jurisdiction to entertain the appeals against the judgment of the Deputy Collector, who decided the rent suits, because there was no conflict between the plaintiffs and the pro forma defendant themselves in respect to their respective title to the rent claimed land. 3. Sec. 47 of the Code of Civil Procedure is a bar to the present suit of the appellants, because the decrees were not void and nullities, and, as such, the executing court had no power to entertain an objection as to the validity of the decrees, or as to the legality of the character of the decrees.

Headnote:

CHOTANAGPUR TENANCY ACT, 1908 - SEC. 142(2) - DECREE IN FAVOUR OF CO-SHARER DEFENDANT - JURISDICTION - SEC. 215(2) - APPEAL FROM JUDGMENT OF DEPUTY COLLECTOR - JURISDICTION OF DEPUTY COMMISSIONER - SEC. 47, CIVIL PROCEDURE CODE - BAR TO SUIT - DECREE WITHOUT JURISDICTION - NULLITY.

Fact of the Case:

Two rent suits were filed by the brothers of Baidyanath Dutt, defendant-respondent 1, against the plaintiffs, in the court of the Deputy Collector at Purulia under Sec.142 (1) (B) of the Chotanagpur Tenancy Act, 1908 (Bengal Act VI of 1908), hereinafter referred to as "the Act". To each of these suits, Baidyanath Dutt, defendant-respondent 1, was made a pro forma defendant. The plaintiffs, of those suits, claimed -/12/- interest in the claimed holding, and, alleged that their brother, Baidyanath Dutt, the pro forma defendant of those suits was their co-sharer in respect of the remaining -/4/- share. Appellant 1, who was defendant 2, in one of the suits, and defendant 3, in the other, filed a written statement, in both the suits, alleging that there was no relationship of landlord and tenant between the plaintiffs and him, and the other principal tenant-defendants of those suits, and, that the pro forma defendant, Baidyanath Dutt, was the sole landlord of the rent claimed lands. The pro forma defendant, Baidyanath Dutt, respondent 1, also filed his written statement in those suits, supporting the plaintiffs, his brothers, that they had -/12/- share, and, he had -/4/- share. He, further, averred that the tenants-appellants had not paid to him anything out of the rent due. He, therefore, prayed that a separate decree may be passed in his favour, in respect of the arrears of rent due to him. The two rent suits were tried together by the Rent suit Deputy Collector, who, on the 28th December, 1944, dismissed both the suits, holding that there was no relationship of landlord and tenant between the plaintiffs and the tenants-defendants, because, the pro forma defendant Baidya-nath Dutt, was the sole landlord of the rent claimed holdings. Against these decrees, two rent appeals, R. A. 41 and 42 of 1944-15, were filed, before the Deputy Commissioner, Manbhum. In these appeals, Baidyanath putt, co-shares respondent, was also made a respondent, along with the tenants-respondents. Before the appellate Court, Baidyanath putt, co-shares respondent, filed a petition, dated the 28th April, 1945, on the 7th July, 1945, praying that if he be considered the sole landlord of the rent claimed holdings, then, as the full court-fee had already been paid on the entire rent, by the plaintiffs-appellants of these appeals, decrees be passed for the entire rent in his favour. This application was considered by the Deputy Commissioner, in his judgment, dated the 13th August, 1945, by which he dismissed the appeals of the plaintiffs of those suits, but accepted the petition of the pro forma defendant, Baidyanath Dutt, and, passed decrees for the entire rent in his favour, according to his prayer. These are the two decrees, passed by the Deputy Commissioner in the two rent appeals, which are now being challenged by the tenants-defendants of those suits, by a separate suit, as being without jurisdiction. These decrees were executed before the Deputy Commissioner. Before the executing court, the present appellants filed objections, on the ground that the decrees under execution were without jurisdiction and, nullities, and, therefore, inexecutable. These objections were rejected, by the executing court, on the 13th July, 1946. After the rejection of their objection, the present suit was brought by the tenants-judgment-debtors, for a declaration that the decrees passed in the rent suits and the connected rent appeals, in favour of Baidyanath Dutt, were without jurisdiction, and, therefore, he should be restrained from proceeding with the execution of those decrees.

Finding of the Court:

The court held that the decrees passed by the Deputy Commissioner in the two rent appeals were with jurisdiction, and not without jurisdiction. The court also held that Sec. 47 of the Code of Civil Procedure was a bar to the present suit of the appellants.

Issues: 1. Whether the decrees passed in favour of Baidyanath Dutt, defendant-respondent, in Rent Appeals 41 and 42 of 1944-45, by the Deputy Commissioner, Manbhum, are without jurisdiction? 2. Whether Sec. 47, Code of Civil Procedure, is a bar to the present suit of the plaintiffs-appellants?

Ratio Decidendi: 1. On the interpretation of Sec.142(2) of the Act, the court held that a decree can be passed in favour of a co-sharer defendant, even if he was not a plaintiff, or a co-plaintiff, and, he never sought to be so, provided that the court has determined the rent due to the co-sharer defendant. The court further held that the decrees cannot be attacked on the ground that they were passed in favour of a co-sharer defendant, who was not a plaintiff, or, who did not seek to be transferred to the category of the plaintiff, but who remained throughout on the record as a co-sharer pro forma defendant. 2. On the interpretation of Sec.215(2) of the Act, the court held that the Deputy Commissioner had jurisdiction to entertain the appeals against the judgment of the Deputy Collector, who decided the rent suits, because there was no conflict between the plaintiffs and the pro forma defendant themselves in respect to their respective title to the rent claimed land. The question of title was raised by the tenants-defendants, which was not accepted by the landlords themselves. In such circumstances, Sub-section (2) of 6. 215 of the Act is not at all attracted, and, therefore, the only Court which could entertain appeals against the judgment of the Deputy Collector, who decided the rent suits, was the Deputy Commissioner and none else. 3. On the interpretation of Sec. 47 of the Code of Civil Procedure, the court held that the decrees were not void and nullities, and, as such, the executing court had no power to entertain an objection as to the validity of the decrees, or as to the legality of the character of the decrees, and, to such decrees, Sec. 47 of the Code of Civil Procedure had application, and, therefore, the contention of Mr. Chatterji that Sec. 47 of the Code was no bar to the suit must be overruled.

Final Decision: The court dismissed the appeal with costs.