vs. Ajudhia, 15 Ind. App., 77; Mahadeo Singh vs. Bachu Singh, I. L. R., 11 Alla., 224, nor to determine a right to rent against a person claiming as landlord-Gobind Ram vs. Narain Das, I. L. R., 9 Alla., 394; and see Mirza Anand vs. Mausuma, I. L. R., 13 Alla., 634; nor a suit to restrain a tenant from changing the nature of his holdingGangadhar vs. Zahurriya, I. L. R., 8 Alla., 446, see Musharaf Ali vs. Iftkhar, I. L. R., 10 Alla., 634; nor to remove trees-Prosonno Mai vs. Mansa, I. L. R. 9 Alla., 35.

Settlement officers cannot determine the rights of contending parties in the soilTota Ram vs. Har Kishan, I. L. R., 7 Alla., 224.

Bengal. - By Act VIII (B.C.) of 1869, Revenue Courts were abolished, over the greater part of Bengal, and the trial of rent suits was made over to the ordinary Civil Courts. The question of jurisdiction can but seldom arise. It has been held that a Court was not justified in dismissing a suit wrongly instituted under Act VIII (B.C.) of 1869, if it could give relief under the ordinary procedure-Jallalooddeen vs. Burne, 18 W. R.,:99; Gobind Mahtoon vs. Ram Khelawun, 22 W. R., 478; if necessary, it should allow the plaint to be amended Gobind Chunder vs. Bykuntnath, 19 W. R., 61. A suit for enhancement not cognizable under the rent law may be brought under the ordinary procedure-Coomar Poresh Narain vs. Watson, 3 C. L. Ř., 543.

Objections to Jurisdiction how raised.-A Court cannot try a cause where there is no jurisdiction, if it did, it would be nothing more than a private arbitratorSreemutty Lalmoney Dossee vs. Juddoonauth Shaw, 1 Ind. J. (N.S.), 319; and submission by the defendant cannot oust the jurisdiction of the Appellate Court to set the decision aside-Ledgard vs. Bull, 13 Ind. App., 134, p. 145; Roy Bhopendro Nath vs. Kalee Prosunno, 24 W. R., 205; Government vs. Ramnalsinghji, 9 Bom., 242 ; Aukil Chunder vs. Moheenee Mohun, 4 C. L. R., 491; and see Foster vs. Underwood, 3 Ex. D., 1; but it has been held in England that where a Judge acts ultra vires by consent no appeal liesWhite vs. Buccleuch, L. R., I. H. L., S. C., 70; though if the person who is cast by the decision succeeds in first appeal, he cannot object to a second appeal-Bickett vs. Morris, L. R., I. H. L., S. C., 47. In India where an appeal lies, appeals have been always allowed on the question of jurisdiction-Naro Hari vs. Aupurnabai, I. L. R., 11 Bom., 160; Ledgard vs. Bull, 13 Ind. App., 134; Meenakashi vs. Subramaniya, 14 Ind. App., 160; Bishenmun vs. The Land Mortgage Bank, I. L. R., 11 Cal., 244, at p. 248.

If the objection is not raised till a late stage, and the jurisdiction is doubtful, the proper course is to proceed and determine the suit-Bagram vs. Moses and Gaspar, 1 Hyde, 284.

Regular Appeal.-When no objection to the jurisdiction of the first Court was raised in the grounds of appeal, and the first Appellate Court declined to hear the question argued, it was held that the objection should have been considered and decided-Motilal Ramdass vs. Jumnadas, 2 Bom., 40: otherwise if it were only an irregularity-Ram Kishen vs. Dipa, I. L. R., 13 Alla., 580; and when a Judge acted without jurisdiction, their Lordships of the Privy Council set aside the decree, although the point was not raised either in the first Court, or the Court of Appeal in India — Har Narain vs. Bhagwant Kuar, I. L. R., 13 Alla., 300.

-

Waiver.-There cannot be a waiver of jurisdiction - Meenakshi vs. Subramaniya, 14 Ind. App., 160; Sankumani vs. Ikoran, I. L. R., 13 Mad., 211. As to what amounts to waiver of an irregularity, see Ledgard vs. Bull, 13 Ind. App., 134.

Special Appeal.-Generally, the plea of want of jurisdiction will not be listened to in special appeal if not raised in the Courts below, unless it arises clearly upon the pleadings or from the admissions of the parties-Nymooddee Joardar vs. Moncrieff, 12 W. R., 140; 3 B. L. R., 283; and see the remarks of Bovill, C. J., in Revell vs. Blake, L. R., † C. P., 300; 8 C. P., 533; but if it appears on the face of the proceedings the Court must take notice of it-Bibi Ladli vs. Bibi Raje, I. L. R., 13 Bom., 650; Meenakshi vs. Subramaniya, 14 Ind. App., 160; see also Chundee Churn vs. Eduljee, I. L. R., 8 Cal., 678. If a party protest against jurisdiction, he is not bound to retire; he can go through the case subject to the protest - Hamly vs. Bellemy, 6 Q. B. D., 63; Ledgard vs. Bull, 13 Ind. App., 134.

After years of litigation in execution-proceedings, the Court of first instance was held to be justified in refusing, in a suit brought to have errors in those proceedings corrected, to raise an issue as to the jurisdiction of the Court to entertain those proceedings-Nehora Roy vs. Radha Pershad, 4 C. L. R., 353.

Costs. As to costs when the plea of no jurisdiction is allowed in special appeal, see Aftabooddeen vs. Mohin Mohunee Doss, 15 W. R., 48.

Form of Order.-When an objection to jurisdiction is raised and allowed at an early stage of the case, the plaint should be returned to be presented in the proper Court-Khooshal Chund vs. Palmer, 1 Agra, 280; and this is the rule in Bombay at any stage-Prabhakarbhat vs. Vishwambhar, I. L. R., 8 Bom., 313, even in special appealBabaji vs. Lakshmibai, I. L. R., 9 Bom., 266. In Bengal there is no uniform practiceJoynath Roy vs. Lall Bahadoor Sing, I. L R., 8 Cal., 126. In Madras the Court either dismisses the suit or appeal, or returns the plaint Yacoob vs. Mohan Singh, I. L. R., 1 Mad., 482; Sonachala vs. Manika, I. L. R., 8 Mad., 516; but see Muttirulando vs.

Kottayan, I. L. R., 10 Mad., 211. In Ledgard vs. Bull, 13 Ind. App., 134, p. 142, their Lordships of the Privy Council stated "that the Court should have given the plaintiff the alternative of having his suit dismissed or of withdrawing it with leave to bring a new action."

Jurisdiction.-The leading case on jurisdiction is Ledgard vs. Bull, L. R., 13 Ind. App., 134; I. L. R., 9 Alla., 191. This was a case under the Patent Act, and should have been instituted in the District Court. It was instituted in the Court of the Subordinate Judge, and defendant pleaded that the Court had no jurisdiction, and though subsequently he consented to have the case removed into the District Court, he did not withdraw the objection to jurisdiction. Their Lordships said:

"The defendant pleads that there was no jurisdiction in respect that the suit was instituted before a Court incompetent to entertain it, and that the order of transference was also incompetently made. The District Judge was perfectly competent to entertain and try the suit, if it were competently brought, and their Lordships do not doubt that in such a case a defendant may be barred by his own conduct from objecting to irregularities in the institution of the suit. When a Judge has no inherent jurisdiction over the subject-matter of a suit, the parties cannot by their mutual consent, convert it into a judicial process, although they may constitute the Judge their arbiter and be bound by his decision on the merits when these are submitted to him. But there are numerous authorities which establish that when, in a cause which the Judge is competent to try, the parties without objection join issue and go trial upon the merits, the defendant cannot subsequently dispute his jurisdiction upon the grounds that there were irregularities in the initial procedure, which, if objected to at the time, would have led to the dismissal of the suit. The present case does not come strictly within those authorities, because the defendant's plea was stated before issue was joined on the merits, and in reliance on that plea, he objected to the case being tried, and withheld his objections to the validity of the patent." Their Lordships then found that defendant had not consented to the case being tried by the District Judge, and dismissed the suit. This case was followed and approved in the case of Meenakshi vs. Subramaniya, 14 Ind. App., 160. See also Vishnu Sakharam vs. Krishnarao, L. R., 11 Bom., 153; Naro Hari vs. Aupurnabai, I. L. R., 11 Bom., 160; Bibi Ladli vs. Bibi Raje, I. L. R., 13 Bom., 650.

Jurisdiction in Part.-As to where is jurisdiction in part, see In the matter of Leslie, 9 B. L. R., 171, p. 175; Sree Nath vs. Cally Doss, I. L. R., 5 Cal., 82, but see Holkar vs. Dadabhai, I. L. R., 14 Bom., 353; Punchanun vs. Shib Chunder, I. L. R., 14 Cal., 835. See "THE PROPERTY is SITUATE," section 16, post; and as to when a second suit can be brought when the first is partly infractuous for want of jurisdiction, see the cases under " Act VIII," section 19, post.

Alternative Relief.-Where plaintiff claims different relief to some of which he is not entitled, jurisdiction depends on the other reliefs-Nanda Kumar vs. Ishan, 1 B. L. R., 91; Lakshman vs. Babaji, I. L. R., 8 Bom., 31.

In

Irregularity.-The distinction between entire absence of jurisdiction and an irregular exercise of jurisdiction seem to have been lost sight of in several cases. Ekouri Sing vs. Bijaynath Chattapadya, 4 B. L. R., A. Č., 114, Markby, J., said:—"The only point upon which I have felt the smallest doubt is as to whether or no the conduct of the defendant in the subsequent suit in having, as I think it is pretty clear he had, concluded that mesne profits were given in the first suit could in any way affect the position of the parties. But upon consideration, I think it clear that it could not. I think it is a clear principle of law that parties cannot, either by special agreement or by any conduct of their own, invoke the process of the Court in execution. Process in execution must always be granted by the direct act of the Court itself. And it appears to me that precisely upon the same principle that parties are prohibited from invoking the process of the Court de novo, either by agreement or by their conduct, they are also prohibited from extending in like manner the relief which the Court has chosen to award. Therefore all questions as to the conduct of parties, where they are seeking to execute a decree of the Court, are, in my opinion, immaterial in considering what is the effect of the decree."

64

In Sadasiva Pillai vs. Ramalinga Pillai, 15 B. L. R., 383, their Lordships of the Privy Council, referring to a question of mesne profits under a decree, held as follows:Upon the whole, their Lordships are of opinion that the respondent did come under an obligation to account in this suit for the subsequent mesne profits of the appellant's land which was capable of being enforced by proceedings in execution, notwithstanding the construction of the 11th section of the Act of 1861, which now prevails in Madras. They conceive that this liability made the accounting a question relating to the execution of the decree within the meaning of the latter clause of the section. But even if it did not, they think, that, upon the ordinary principles of estoppel, the respondent cannot now be heard to say that the mesne profits in question are not payable under the decree, nor do they feel pressed by the observations made by Mr. Justice Markby in the case reported in the 4 B. L. R., A. C. J., p. 113. The Court here had general jurisdiction over the subject-matter, though the exercise of that jurisdiction by the particular proceeding

may have been irregular. The case therefore seems to fall within the principle laid down and enforced by this Committee in the recent case of Pisani vs. Attorney-General of Gibraltar, in which the parties were held to an agreement that the questions between them should be heard and determined by proceedings quite contrary to the ordinary cursus curiae." See also Pisani vs. Attorney-General for Gibraltar, L. R., 5 P. C., 516, referred to above; Brooks vs. Wigg, 8 C. D., 510; Fakhruddin Mohamed vs. The Officiating Trustee, 8 Ind. App., 197; Khemna Gawala vs. Budoloo Khan, I. L. R., 6 Cal., 251; Dinonath vs. Guruchurn, 14 B. L. R., 287. See also the case of Vishnu vs. Krishnarao, I. L. R., 11 Bom., 153. Again, in the case of Rewa Mahton vs. Ram Kishen, 13 Ind. App., 106, the High Court held that execution-proceedings not carried on as required by section 246 of this Code were null and void. Their Lordships in setting aside that decision said:

"Their Lordships are of opinion that the High Court came to an erroneous decision with regard to the construction of section 246, and that the judgment of the High Court must in that respect be set aside. A purchaser under a sale in execution is not bound to inquire whether a judgment-debtor had a cross-judgment of a higher amount, any more than he would be bound in an ordinary case to inquire whether a judgment upon which an execution issues, has been satisfied or not. These are questions to be determined by the Court issuing the execution. To hold that a purchaser at a sale in execution is bound to inquire into such matters would throw a great impediment in the way of purchases under executions. If the Court has jurisdiction, a purchaser is no more bound to inquire into the correctness of an order for execution, than he is as to the correctness of the judgment upon which the execution issues." So it has been held that the omission to record reasons for admitting new evidence as directed in section 565, post, is only an irregularity and does not touch jurisdiction-Gunga Gobind vs. Collector of 24 Pargannahs, 11 Moore, 345; so where the Judicial Commissioner of Mysore struck a pleader off the rolls without hearing him, although the Act declared that "notwithstanding hereinbefore contained, no pleader shall be suspended or dismissed under this Act, unless he has been allowed an opportunity of defending himself," the order was set aside on the ground of irregularity only-In the matter of Sonthekul Krishna Row, 14 Ind. App., 154; and where a suit cognizable by a Munsif was brought, contrary to the corresponding section of Act VIII of 1859, in the Court of a Subordinate Judge, it was held that the Court had power to try the cases by virtue of the Civil Courts Act, and this power was not affected by the prohibition in Act VIII which was merely a procedure code-Russick Chunder vs. Ram Lall, 22 W. R., 301. See also the remarks of James, L. J., in Dale's case, L. R., 6 Q. B. D., 376, p. 451.

In Revell vs. Blake, L. R., 7 C. P., 300, 8 C. P., 533, which was an interpleader suit to have an adjudication declared a nullity as made without jurisdiction, the Kent County Court adjudicated one Maxwell, a bankrupt. The petition had described him as residing within the jurisdiction of the Court, and not carrying on business within the jurisdiction of the London Bankruptcy Court;" for otherwise the latter Court alone could, under section 59 of the Bankruptcy Act of 1869, make the adjudication. It turned out afterwards that Maxwell did in reality carry on business in London within the jurisdiction of the London Bankruptcy Court (which was unknown to the petitioning creditor and to the Kent County Court), and the question was, what effect had that fact on the adjudication made by the Kent County Court. The majority of the Court of Common Pleas held that, as on the facts which were before the County Court, the adjudication made was correct, and one which the Court would be bound to make, it was not rendered null by the fact that the Court had come to a wrong conclusion that the Bankrupt had not traded in London; Bovill, C. J., saying "In ordinary cases where the jurisdiction of an inferior tribunal, as of Magistrates at petty sessions, depends on some fact into which it is their duty to inquire as essential to jurisdiction, the determination of that tribunal after bona fide investigation as to such fact is conclusive as to the existence of jurisdiction so far as that fact was concerned, see Reg. vs. Bolton, L. R., 1 Q. B., 66; Mould vs. Williams, L. R., 5 Q. B., 469." On appeal to the Exchequer Chamber, the whole Court were unanimous that, under the Bankruptcy Act of 1869, each County Court has a general jurisdiction in Bankruptcy as part of one general Court of record, and therefore the adjudication was merely an irregular exercise of jurisdiction, the remedy for which was an appeal, and that the question as to the effect of want of jurisdiction did not really arise. On this latter point Blackburn, J., said:"It was thought by Brett, J., in the Court below, that the County Court could only have jurisdiction if the debtor resided within the district, and did not reside or carry on business in the London district. And it was argued, that the general rule applied to this case, which is applicable to inferior Courts with a limited jurisdiction, viz., that where such Court exceeds the limits of its jurisdiction, the proceedings are void, and may be shown to be so in any collateral proceedings. If it were so, and the local Courts of Bankruptcy were inferior Courts, these consequences might follow, however inconvenient they might be. I do not, however, think that such is the effect of the Act."

Officer not Appointed. As to objections to jurisdiction on the ground that the officer whose act is impugned was not properly appointed or was disqualified, see Glyn

vs. Bonnaud, 2 Taylor and Bell, 205, 224, and cases there cited. Acts done by Justices, in a judicial character, have in no instance been thought invalid-Margate Pier Co. vs. Hannan, 3 B. and Ald., 271; Addison on Torts, p. 691.

Suits to be instituted where subject-matter situate.

16. Subject to the pecuniary or other limitations prescribed by any law, suits

(a) for the recovery of immoveable property,
(b) for the partition of immoveable property,

(e) for the foreclosure or redemption of a mortgage of immoveable property.

See Shurnomoyee vs. Srinath, I. L. R., 12 Cal., 614, p. 621.

Service may be made under section 77, post-Michael vs. Ameena Bibi, 13 C. L. R., 166; I. L. R., 9 Cal., 733.

(d) for the determination of any other right to or interest in inmoveable property,

(e) for compensation for wrong to immoveable property, (f) for the recovery of moveable property actually under distraint or attachment,

shall be instituted in the Court within the local limits. of whose jurisdiction the property is situate :

Provided that suits to obtain relief respecting, or compensation for wrong to, immoveable property held by or on behalf of the defendant may, when the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction he actually and voluntarily resides, or carries on business, or personally works for gain. Explanation. In this section" property" means property situate in British India.

Act VIII of 1859, section 5; New York Code, section 123; Westlake's Private Inter. Law, p. 58. This section applies to P. S. C. C.

Immoveable Property.-By section 12 of the Charter of 1865, the High Court has jurisdiction of the case of suits for land or other immoveable property, situated within the local limits of its original jurisdiction, and under this section it has been held that suits for foreclosure or redemption of land-Bebee Jaun vs. Meerza Mahommed Hadee, I. I. J. N. S., 40; Sreemutty Lalmoney Dassee vs. Judoo Nath Shaw, id., 319; Ramdhone Mullick vs. Blacquire (the Englishman, September 11th, 1865); (see all these cases referred to in Juggodumba vs. Puddomoney, 15 B. L. R., 318; against a receiver in possession of lands after the mortgagee has foreclesed, asking for an account and to redeem-Denonath Sreemoney vs. C. S. Hogg, 1 Hyde, 141; against trustees to carry out the terms of a trust deed executed by A for himself and B, and compel the sale of lands outside Calcutta, where B denies A's authority to act for him-Delhi Bank vs. Wordie, I. L. R., 1 Cal., 249; 25 W. R., 272, explained in Kellie vs. Fraser, I. L. R., 2 Cal., p. 457; to restrain persons working a mine in the mofussil beyond a certain line-East Ind. Ry. Coy. vs. Bengal Coal Coy., I. L. R., 1 Cal., 95; for specific performance to execute a mortgage of lands-Sreenath vs. Cally Doss, I. L. R., 5 Cal., 82; contra-Holkar vs. Dadabhai, I. L. R., 14 Bom., 353; or for partition-Jairam vs. Atmaram, I. L. R., 4 Bom., 482, have been considered "suits for land."

As to the High Court's jurisdiction between 1862 and 1865, to sell property outside Madras, see Sriman Sadagopa vs. Jamuna, I. L. R., 5 Mad., 54; reversed on reviewJamuna vs. Sadagopa, I. L. R., 7 Mad., 56.

By section 5, Act VIII, 1859, "suits for land or immoveable property" should be instituted in the Court within whose jurisdiction it is situated. Held, a suit for the recovery of a mortgage-debt by sale of the mortgaged property is not a suit for land within this section, and that a suit for land is a suit which asks for delivery of the land to the plaintiff-Yenkoba Balshet vs. Rambhaji, 9 Bom., 12. It seems to be otherwise in Bengal. In the matter of S. J. Leslie, 18 W. R., 269; 9 B, L. R., 171, Markby, J., said: I think that the plaint, so far as it asks for a sale of the mortgaged property in satisfaction of the mortgage-debt, is a "suit for land" within the meaning of section 5 of the Code of Civil Procedure which regulates the jurisdiction in this case. Mr. Branson contended that these words should be read as signifying these suits alone in which the land itself is sought directly to be recovered. It was admited that a much wider construction had been put by Mr. Justice Macpherson upon the similar words of the Charter of the High Court; that learned Judge holding that a suit for foreclosure by the mortgagee was as such a suit for land (1 Ind. Jur., N. S., 40), and that a suit for redemption was so also (1 Ind. Jur., N. S., 319), but it was contended that these decisions were not correct. We see no reason to suppose this. They have never been questioned so far as we are aware. On the contrary, the uniform practice of the Court on its original side has been in accordance with them." But see the observations of Garth, C. J., in Delhi and London Bank vs. Wordie, I. L. R., 1 Cal., 249, p. 257. See "Interest in Immoveable Property."

Standing Crops.-Standing crops are immoveable property-Ched Lal vs. Mul Chand, I. L. R., 16 Mad., 30.

Interest in Immoveable Property.-A suit for possession and for opening a water-course is a suit for an interest in immoveable property-Oodoyessuree vs. Huro Kishore Dutt, 4 W. R., 107; and so is a suit to have certain lands mortgaged declared liable for the debt-Ram Lall vs. Chittro Coomaree, 15 W. R., 277. And in regard to limitation it has been held that a suit to enforce a contract of hypothecation pledging certain lands for payment of the amount borrowed, and providing that on non-payment in three years the lands should become the absolute property of the pledgee is for an interest in immoveable property-Chetti Gaundan vs. Sunaram Pillai, 2 Mad., 51; Raja Kaundan vs. Muttammal, 3 Mad., 92. So also is a suit brought to enforce payment of principal and interest both as a simple contract, liability and as a debt secured by a collateral mortgage of immoveable property-Kristna Row vs. Hachapa, 2 Mad., 307; Juneswar vs. Mahabeer, 3 Ind. App., 1. So is a suit for a declaration that lands are mortgaged or charged with a debt and to have them sold in execution notwithstanding a later disposition-Surwan Hossein vs. Gholam Mahomed, 9 W. R., 170; or a suit for a sum of money, where plaintiff asked that the decree should been forced against the person of the borrower and the property pledged-Munoo Lall vs. Pigue, 10 W. R., 379. And so is a suit to enforce in plaintiff's favour an assignment of rent not due, but to become due-Hall ex parte, Whatting, in re, 10 C. D., 615.

A suit to follow the purchase-money of land taken up under the Land Acquisition Act, over which the plaintiff had a mortgage lien, is not a suit under clause (d)-Venkata vs. Krishnasami, L. L. R., 6 Mad., 344.

See as to meaning of somewhat similar words-Indar Kunwar vs. Jaipal Kunwar, 15 Ind. App., 127, p. 148; Anund Koer vs. The Court of Wards, 8 Ind. App., 14, p. 22. Sayer. Sayer is not an interest in immoveable property-Surendro vs. Kedar," I. L. R., 19 Cal., p. 8.

The Property is Situate.-And in a suit on a mortgage and money bond in a district other than where the property is situated, the Courts have no jurisdiction to pass any but a money decree, leaving the Court of the district in which the property is situated to execute it against the property mortgaged-Mahomed Khulleel vs. Sona Kooer, 23 W. R., 123. See also Buldeo Dass vs. Mool, 2 Alla., 19. So a mortgage decree passed by a Court other than that described in the section can be only looked on as a money decree-Gudri vs. Jagannath, I. L. R., 8 Alla., 117. and see Premchand vs. Mokhoda, I. L. R., 17 Cal., 699. See "JURISDICTION IN PART," section 15, p. 44, ante.

Mortgage Charge.-A Court has power to give a decree for mortgaged property situate within its jurisdiction, though the mortgage of which redemption is sought includes property without the jurisdiction-Girdhari vs. Sheoraj, I. L. R., 1 Alla., 431 ; and see Bolakee Lall vs. Thakoor Pertam, I. L. R., 5 Cal., 928; but it cannot declare a charge on property wholly outside its jurisdiction, if it does, a purchaser under such a decree would not be in a better position than a purchaser under a money decreeGudri Lal vs. Jagannath, I. L, R., 8 Alla., 117.

Not Immoveable Property: Relief by Personal Obedience.-Under the Charter, suits for foreclosure or for redemption of land in the Mofussil are excluded as being suits for land (see cases abovementioned), and only a limited relief can be given against the individual. A suit to declare that a person resident in Calcutta holds certain lands in the Mofussil, subject to certain trusts, is not a suit for land, and may be tried in Calcutta-Bagram vs. Moses, 1 Hyde, 284; nor is a suit to enforce the right of parties to act as co-sebaits to an idol endowed with lands in the Mofussil where possession of any land is not claimed-Juggodumba vs. Puddomoney, 15 B. L. R., 318;