Page rescan 655 (PLP)

KAIKAUS, J.‑This appeal arises out of a suit for partition. Khan Muhammad and four others, who are respondents in this appeal, filed a suit against Ghulam Hussain and three others, who are appellants before us, for partition of a plot of land situate in Mohalla Sahowanlian, Maghiana City, claiming to be entitled to 13/15th of the property in dispute. On a part of this land some building had been constructed by the defendants. The plaintiffs; however, had asked for posses sion by partition only of the plot and not of the building. The defendants denied that the plaintiffs were entitled to 13/15th share but before issues were struck conceded the title of the plaintiffs. As a result, a preliminary decree was passed on the 29th of March 1950. A commissioner was then appointed for partition of the plot. He made a report which was rejected by the Court. In accordance with the directions of Court the Commissioner made a second report. To this report the plaintiffs filed no objections. The defendants filed objections but later on withdrew them and agreed that a decree may be passed according to the report. When the decree was passed, however, they filed the present appeal against it. It is argued on behalf of the defendants‑appellants, in the first instance, that the partition was not a just and proper one. We did not allow them to raise this plea because they had withdrawn their objections with respect to the commis sioner's report and had agreed to a decree being passed according to its terms. The appellant: then raised a question that the trial Court had no jurisdiction to entertain this suit because of section 158 (2) (xvii) of the Land Revenue Act which ousts the jurisdiction of a Civil Court in respect of a claim relating to partition of any 'holding'. They also relied in this connection on section 158 (1) which prevents a Civil Court from adjudicating upon any question which a Revenue Officer is empowered to dispose of. It is alleged on behalf of the defendants that the plot of land in dispute is, according to the allegations in the plaint itself, entered in the revenue papers and according to the commissioner's report part of it was agricultural land even at the time when he recommended a partition. This objection, apparently simple, gives rise to a multitude of questions. The respondents object that no appeal lies at all in view of section 96 (3) which bars an appeal in cases of consent decrees and the first question that arises is whether the prohibition relating to consent decrees applies even to decrees passed without jurisdiction. There is an allied question as to whether an appeal lies at all against a decree passed without jurisdiction. The second question that requires determination is as to what is a consent decree. Is it an order to which a party agrees or sloes it refer to a contract between the parties ? Is not consent decree under section 96 (3) synonymous with a decree which was passed in accordance with Order 23, rule 3 on the basis of a lawful agreement or com promise ? If it be held then that an appeal does not lie against the decree under appeal cannot this appeal be treated as an appeal against the order recording the compromise If there was no order recording the compromise can it be regarded as a consent decree at all and will not in such a case an appeal lie against the decree itself ? If we allow an appeal or revision, should the question which was not raised in the lower Court allowed to he raised now T Lastly, there is a question as to whether in fact the Court had no jurisdiction to hear the suit. I will take up first the objection on account of section 96 (3) to the maintainability of the appeal. There is no doubt that in cases of consent decrees an appeal is not allowed. But would section 96 (3) apply to cases where the Court had no jurisdiction at all to adjudicate upon the matter. To appreciate the correct legal position let us first consider whether an appeal lies at all against a decree passed without jurisdiction for the second step may then become easy. So far as decrees in cases where there is not an absolute lack of jurisdiction, but there is what I will term a qualified lack of jurisdiction, are concerned, there can be no doubt that an appeal would lie. When I say qualified lack of jurisdiction I am referring to cases where the decision of whether a Court has jurisdic tion depends upon a fact which the Court whose decree is being impeached has jurisdiction to decide. Take this very case. The learned trial Judge had jurisdiction to decide whether the property in dispute was "an estate or holding" or not. This would be a mixed question of law and fact. Assuming that the question of law was correctly decided (for I want to keep cases where jurisdiction is usurped by misinterpreta tion of law in a separate category) the learned judge would then determine whether according to the interpretation of estate or holding that he accepts the property in dispute was a 'holding' or 'estate'. If he held that it was not a 'holding' and an appeal was filed against the decree on the ground that the Court had no jurisdiction to determine the suit for the property was in fact a 'holding', could it be said that the appeal was incompetent ? It could not be incompetent, for otherwise the party would be left entirely without a remedy. The decree could not be said to be a nullity so that any Court before which it was produced could ignore it. 'The Court had jurisdiction to decide the question of fact whether the property in dispute was a "holding" and this finding could not be attacked in collateral proceedings. It would be res judicata between the parties. In case of this case there is what I call a qualified lack of jurisdiction, for only an appellate or revisional Court can set aside the decree on the ground that it was without jurisdiction. Even in cases where there is an utter lack of jurisdiction an appeal should be (provided ?) although the decree may be void and liable to be ignored in collateral proceedings, unless the tribunal against whose decree appeal is preferred is not legally constituted at all. A decree without jurisdiction would be within the definition of decree. All that is needed for the order being a decree is that it should be a conclusive determina tion of the rights of parties before the Court. I accept that truly a void decree is in law not in existence. But all that we mean to say is that it has no legal effect at all. While considering whether an appeal lies we are to see whether there is something that purports to be a decree and not whether it is one which if not attacked by appeal will be effective. I may here refer to cases where the question before a civil Court is whether a suit is cognizable by a civil or a revenue Court. If the Civil Court decides that it has jurisdic tion the proper remedy is an appeal though objection is to jurisdiction of Count. The decree of the Civil Court in such a case will not be liable to collateral attack. I may also refer to the revisional jurisdiction of the High Court which allows it to set aside a decree on the ground that the decree is passed without jurisdiction. The revisional jurisdiction is really a part of the appellate jurisdiction in the wider sense of that expression and I do not see any reason why the jurisdiction in appeal should not cover cases of the kind dealt with in revision. I have given my own reasons on the appeal against decrees without jurisdiction. In fact there is abundant authority for the proposition that an appeal lies against a decree passed without jurisdiction vide Nagar Mal v. Kishan Lal (AIR 1931 Lah. 96.), Budh Singh and others v. Budh Singh (32 PLR 90.) Bilas Singh v. Emperor (A I R 1925 All. 737.), Ranjit Missir v. Ramudar Singh and others (16 I C 940.) and Bindeswari Prosad Singh v. Lakpat Nath Singh and others (8 I C 26.). Assuming then that it was the intention of the Legislature to provide for an appeal in such cases even though the decision was without jurisdiction, can we say that the Legislature intended to exclude an appeal in cases where the decree though passed without jurisdiction was with consent. I cannot impute such an intention to the Legislature. We should presume that the Legislature does not want proceedings illegal and without jurisdiction to be validated. On the other hand, we can reasonably assume that it intends the setting aside of such proceedings. When therefore, in section 96 (3) the Legislature speaks about the consent decree, it can only meal. a consent decree which is given in proceedings taken with Jurisdiction. Jurisdiction is implied when a decree by consent is mentioned as not open to appeal. There is another way of looking at the matter. That a decree which is alleged to be passed on consent can be challenged on the ground that in fact there was no consent cannot be disputed. The decree by consent mentioned in section 96 (3) does not mean a decree which only purports to be by consent. It must be one in respect of which in fact there was a consent. The next step in the argument is that the consent must be valid. It cannot be said that although the consent was in law no consent still the decree could not be appealed against. Such a consent 'implies an agreement between two parties and assumes that the same is valid. There is more than one reason for saying that consent would not be, in a case like the present, valid. The parties ,are entering into a contract for doing an act which by law is not possible, i.e., the granting of a decree by a Court in a matter in which it has got no jurisdiction, or we may say that tile parties enter into a contract on the assumption that the proceedings are with jurisdiction which is really a substratum for the contract and in the absence of which no contract comes into existence. I would, therefore, hold that an appeal is not barred by section 96 (3) against a decree by consent if E the Court which passed the decree had no jurisdiction in the subject‑matter of the dispute. Another reason why an appeal should lie in the present case is this. An appeal lies against an order recording the compromise. There is in this case no order recording the compromise. But by the omission to record such an order a party cannot be deprived of his right of appeal. The decree can in such a case be regarded as the order recording the compromise and the appeal against the decree can be regarded as an appeal against the order recording the compromise. Assuming that an appeal does not lie against a decree itself, there is no bar to this appeal being regarded as against the order recording the compromise. The party has paid full Court‑fee while he could have appealed against the order on a payment of Court‑fee of Rs. 2 only. Truly, there is no order recording compromise in this case and that would rather be a reason for allowing an appeal against the decree itself. Authority can be found for the proposition that where no order is passed recording a compromise there ought to be an appeal against the decree. To hold otherwise would amount to depriving a party of the right of appeal for no fault of his. I have been assuming that (apart from the effect of the proceedings being without‑ jurisdiction) the decree passed in the present case is a consent decree within the meaning of section 96 (3). Let us examine whether the order which is passed is a consent decree at all. I have already explained that there was first a report by the commissioner appointed to carry out the partition which was rejected and then a second report was made by him Against this second report, the defendants filed sonic objections and the local commissioner was called upon by the learned Senior Civil judge to explain the matter referred to him and to furnish a detailed report. The local commissioner, however, filed what appears to be a third report. To this report again the defendants did file objections while the plaintiffs did not. The plaintiffs were called upon to reply to the objections and they filed a reply, but then, for reasons which do not appear on the record, Chaudhri Abdul Ghani, learned counsel for the plaintiffs made the following statement :‑ "I withdraw my objections and accept the report of the commissioner. Final decree my be passed according to it. Now if a report had been received and no objections had been filed and a decree had been passed in accordance with that report, it could hardly be argued that it was a consent decree. The mere fact that there was a failure to file objections by both parties would not have resulted in transforming the decree into a decree by consent If then, objections were filed and withdrawn, would that make the position different ? There is no doubt that in the statement of the learned counsel for the appellants the second sentence goes further than mere withdrawal of an objection. I do not think, however, that such a matter should be decided merely by the addition of a sentence the import of which 'learned counsel probably never realized when he was making the statement. In substance the statement implies only a withdrawal of objections. But in any case, there was no agreement between the parties. The real basis of the bar to the maintainability of an appeal against a consent decree is the agreement between the parties. It is because the parties have on a basis of give and take settled their disputes that none of them is allowed to impeach it. But no ground exists for debarring a party from appealing in a case where he simply does not object to an order of the Court without there being between him and the other party any agreement. It is to be remembered that in the present case if the plaintiffs wanted to appeal against this order there was no bar at all. They had not filed objections against the commissioner's report and they had not made any state ment with respect to the decree that might be passed. It may be a good argument against them that as they had not filed any objection, there was no force in their appeal, but that would not be an objection to the maintainability of the appeal and it may be possible for them to point out to a defect in the commissioner's report which may result in the decree being interfered with. The incompetence of an appeal should at least be mutual and not one sided. It appears to me that the consent decree in section 96 (3) is synonymous with the lawful compromise in Order 23, rule

3. There is no jurisdiction in the trial Court to pass a decree by consent except in accordance with Order 23, rule

3. If Order 23, rule 3 does riot apply to a case the decision ought to be regarded as one by the Court on the merits although a party may not have objected to the passing of an order. In such a case the consent of the parties to the passing of a particular order no more than an admission that that order is the proper one to be passed under the circumstances but the consent is riot the result of an agreement between the parties or of a contract, and no estoppal attaches to it. So far as a compromise is concerned there is an implied agreement that neither party will file an appeal. This consideration however, is not present where is a one‑sided consent of a party to an order being passed. If I were to hold that no appeal lies against this decree a revision would be competent on the ground that the whole proceedings before the Court were entirely without jurisdiction. The next question is whether the objection as to jurisdiction should be allowed to be raised. It was not taken before the trial Court. If the decision of the point depended upon some fact which was not admitted or proved on the record, there is no doubt that even though the question related to jurisdiction we would not have allowed it to be raised. But the facts on which learned counsel for the appellants bases his objections are really admitted. In paragraph 1 of the plaint itself it is stated that this land is entered in the revenue papers and its hhasra numbers are also mentioned. Even this fact alone is sufficient for maintaining an objection as to jurisdiction. According to section 158 of the Punjab Land Revenue Act no claim for partition of an `estate' or `holding' is cognizable by a civil Court. The definition of 'holding' as provided in section 3 (3) of the Punjab Land Revenue Act is that it is part of an estate. An estate as provided in section 3 (1) means an area for which a separate record of rights has been prepared. The result is that all land which is entered in any record of rights must be a holding and would be within the purview of section 158 (2) (xvii). But there is even further material on the file to show that the land in dispute is within the mischief of the Punjab Land Revenue Act. The local Commissioner had himself reported that when he went to the spot he found part of the land under cultiva tion. I do not mean to say that for the application of the land Revenue Act it is necessary that land be agricultural land. As held in Rai Jagat Chand v. Haku and others (38 P L R 428.) the defini tion of land in the Punjab Tenancy Act does not apply to the Land Revenue Act. But; in any case, the fact that part of the land is agricultural prevents the plaintiffs from saying that the plea now raised involves any investigation into any issue of fact. There is one another objection to the raising of this point which was not argued at the bar, but which I regard it only proper to mention. No appeal was filed in this case against the preliminary decree. A preliminary decree for partition estab lishes the right of the plaintiff to partition. In this case even a commissioner for partition had been appointed by the preliminary decree. By virtue of section 97 of the C. P. C. a party is debarred from challenging the correctness of al preliminary decree in an appeal against the final decree. Sol ordinarily the, present appellants could not go behind the preliminary decree and show that it was wrong. The position however, is different when there was no jurisdiction to pass the preliminary decree at all. If this preliminary decree was produced in collateral proceedings it would have to be disregarded of the ground that it was passed without jurisdic tion. I do not think its effect can be different in the same proceedings. Hid it been a matter of some doubt on the question of fact I would not allow the objection to be raised, at all. The necessary facts are, however, admitted in the plaint and it is apparent that if the final decree be without jurisdiction the preliminary decree is necessarily so. , On the merits there is nothing at all to be said for the plaintiffs. There can be no doubt that the Civil Court has no jurisdiction in this matter. Under section 158 (1), a Civil Court is debarred from adjudicating upon a matter which a land revenue officer is empowered under the Punjab Land Revenue Act to dispose of. Under section 158 (2) (xvii) no claim for partition of a holding can be entertained by a Civil Court. Considering only 158 (2) (xvii) it is clear that) the present claim is entirely within the jurisdiction of the revenue officer. The land in dispute is entered in the evenue papers and falls within the definition of "holding" and the Civil Court has no jurisdiction to partition it. I would accept this appeal and setting aside the decree would dismiss the suit but would leave the parties to bear their own costs throughout. AKHLAQUE HUSAIN, J.‑I agree. A. H. Appeal accepted.