Mitter, J.@mdashThis appeal is directed against an order of the Subordinate Judge of 24-Perganas, dated the 29th August, 1930, by which he returned the plaint of the Plaintiff, now Appellant, in a partition suit valued at Rs. 3,80,101 to be filed in the proper Court. He made the order in the absence of the Plaintiff and held on such materials as had been put before him by the Defendant No. 6 Raja Promatha Bhusan Deb Roy of Naldanga, that the Alipur Court had no jurisdiction to entertain the suit as none of the properties which formed the subject-matter of partition lie within the jurisdiction of that Court. Hence the present appeal. Two questions have been debated before us in the appeal: (1) whether the Subordinate Judge should have proceeded to deal with the suit under the provisions of Or. 17, r. 2 instead of proceeding under Or. 17, r. 3 of the Code of Civil Procedure, (2) whether the materials before the Court were sufficient to justify the conclusion that the Alipur Court had no jurisdiction to entertain the partition suit.
2. The substance of the Plaintiff''s case as laid in a somewhat long-drawn and prolix plaint may be briefly stated thus: Raja Sashi Bhusan Deb Roy, Resident of Naldanga in the District of Jessore, while owning and possessing 6a. 8g. of the Naldanga Raj Estate died possessed of considerable movable and immovable properties in several Districts in Bengal. He was survived by his wife Rani Joy Durga Debi, Manada Moyi an unmarried daughter and his mother Tara Moni Debi. After his death Rani Joy Durga possessed the Raja''s estate as a Hindu widow. During Rani Joy Durga''s life-time possession was taken of the estate by the Court of Wards. She died in 1837, leaving behind her only daughter Rani Manada Moyi and she became, on her mother''s death, the heiress to the Naldanga estate and became a Ward of the Bengal Court of Wards. She was married in 1840 to Purna Chandra Ganguli, Resident of Halishahar in the District of 24-Pergannas. Rani Manada died in 1854, leaving behind her three sons, one of whom was Surendra Bhusan who has been declared a lunatic. Plaintiff claims to be one of the sons of Surendra and claims that he is entitled to a share in the Naldanga Raj Estate as the son of Surendra Bhusan who succeeded to Raja Sashi Bhusan as one of his daughter''s son. But it appears from the plaint that Indu Bhusan was adopted by Rani Joy Durga and alleges (?) subsequent adoption of Raja Pramatha (Defendant No. 6) by Raja Indu Bhusan''s widow in 1870. These two adoptions are, challenged nearly sixty years after the alleged adoption of Raja Pramatha (Defendant) in paragraphs 6, 7 and 8 of the plaint. If this adoption is valid, then Raja Pramatha must have been transferred from his paternal family to Raja Sashi Bhusan''s family and he won''t be able to claim any portion of Purna Chandra Ganguly Estate in Halishahar and no question can arise for joining Defendant No. 6 in this partition suit so far as his paternal properties are concerned. If on the other hand the adoption is invalid, the present suit for partition might include the Halishahar properties and the properties of Naldanga Estate. But on the face of the plaint the Plaintiff will have to meet even in such a case serious questions of adverse possession or ouster since 1870.
3. Amongst the properties of the Naldanga estate, properties Nos. 37 and 38 as given in the schedule to the plaint at page 25 of paper-book are claimed to be situate in 24-Pergannas.
4. The plaint in paragraph ka of the prayer portion asked for partition after declaration of title.
5. The Defendant No. 6, Raja Promatha, filed his written statement on the 9th May, 1930 and in paragraph 16 raised the question of want of jurisdiction of the Court where the suit was laid and stated that the Plaintiff had made false allegations as to the existence of portions of joint properties at Halishahar, Naihati, Gobordanga and Ichapur to create jurisdiction in the Court. The written statement in paragraph 26 raised the contention that Raja Indu Bhusan and after him the answering Defendant had got an indefeasible title to the Naldanga Raj estate by adverse possession for more than one hundred years and that the Defendant has no concern with the house at Halishahar, i.e., the properties described at para 5 of the plaint. The written statement asserted the validity of the two adoptions. The written statement traversed almost all the allegations of fact in the plaint. It is not necessary to detail them for the purposes of the present appeal.
6. Several issues were framed. It is necessary to notice the first issue which runs as follows:
Has the Court jurisdiction to try this suit? "On the 10th June, 1930, the Defendant No. 6 put in a petition praying for decision of Issues Nos. 1 and 2 first. Issue No. 2 related to the insufficiency of court-fees. On the 20th June the Court ordered that the issues of jurisdiction and court-fees should be taken up first and fixed the 29th July, 1930, for hearing of those issues and directed the parties to come with evidence on that date. On the 21st August the Defendant was ready with his witnesses on the question of jurisdiction but Plaintiff was not ready and the Court adjourned the hearing of the issues to 29th August and remarked that as the case was more than eight months old, no further adjournment would be given and directed the payment of adjournment costs to Defendant. On the 29th August Plaintiff did not appear and did not pay the adjournment costs. The Defendant was ready with his witnesses. In the meantime some of the witnesses had been examined on behalf of the Defendant and the learned Judge passed a cryptic order to the following effect, "From the evidence taken on commission it appears that this Court has no jurisdiction to go on with the case. Ordered that the plaint be returned to the Plaintiff''s pleader for presentation in the proper Court."
7. The Plaintiff has preferred the present appeal and two points have been taken on behalf of the Appellant (i) that the Court should not have returned the plaint but should have dismissed the suit altogether as Plaintiff was absent and the provisions of Or. 17, r. 2 of the Code applied, (ii) even if the provisions of Or. 17, r. 3 applied the evidence does not justify the conclusion that the Subordinate Judge had no jurisdiction to try the suit.
8. With reference to the 1st ground taken it is said that as the Plaintiff was absent and did not produce the evidence on the point of jurisdiction, the proper rule applicable was Or. 17, r. 2 and not r. 3 and in support of this contention reliance has been placed on a number of authorities. There is a conflict of authorities on this point in different High Courts in India. The High Court of Madras has held that the Court should in such a case proceed under r. 2 and dismiss the suit for default so that the Plaintiff may have an opportunity to apply under r. 9 of Or. 9 to set aside the dismissal: Pichamni v. Sreeramulu I. L. R. 41 Mad 286 (F. B.) (1917). The High Court of Bombay takes the same view. In Allahabad the balance of authority is in favour of this view: Ganesh Lall v. Debi Das I. L. R. 47 All. 140 (1924). The Patna High Court has held that this rule does not apply unless the hearing is commenced, Mahabir Prasad v. Sheo Deyal I. L. R. 7 Pat. 236 (1927). The Lahore High Court has held that if there are no sufficient materials, the Court should proceed under Or. 17, r. 2, otherwise if there are materials the Court should proceed to determine the matter, Jhanda Singh v. Sadig Mahomed I. L. R 5 Lah 218 (1923). The Respondent has relied strongly on a decision of this Court in the case of Enatulla v. Jiban Mohan Roy I. L. R. 41 Cal. 956 (1914) where it has been pointed out that in a case where there are no materials on the record, the proper procedure to be followed would be that laid down in r. 2 but if there are materials on the record the Court ought to proceed under r. 3. To apply the procedure laid down in r. 3 to a case, there must be the presence of both the elements, viz., (i) the adjournment must have been at the instance of a party; and (ii) there must be materials on the record for the Court to proceed to decide the suit. The presence of one without the other does not justify the application of r. 3. In an earlier case Mariannisa v. Ram Kalpa I. L R. 31 Cal. 235 (1907), Mookerjee and Holmwood, JJ., held that the scope of sec. 157 of Code of 1882 which corresponds to Or. 17, r. 2 was distinct from that of sec. 158 (Or. 17, r. 3) but that the Court can act under sec. 158 even though the parties are absent if the requirements of sec. 158 are satisfied. In my opinion this seems to be the correct view with reference to the scope of these two rules. Although therefore the Plaintiff was absent on the 29th of August to which date the suit was adjourned at his instance for producing witnesses for the decision on the question of jurisdiction, it was open to the Court to proceed to determine the question of jurisdiction on the materials put before it by the Defendant No. 6, and Or. 17, r. 3 properly applies to the present case.
9. We now proceed to deal with the second ground, namely, that the Court should have held that the Alipore Court has jurisdiction to entertain the suit. It is argued that in arriving at the conclusion that the Alipore Court has no jurisdiction the Subordinate Judge has relied on evidence taken on commission which was never read before the Court and was not formally tendered at the trial. The answer to this contention is that regard being, had to the practice of the Mofussil Courts, which is not only consistent but is also in strict accordance with the provisions of the Code, it is not necessary to tender the evidence taken on commission formally at a trial to make it evidence in the case. See Dhanuram v. Murali I. L. R. 36 Cal. 566 (1909). We are, therefore, of opinion that there is no substance in this point.
10. The property belonging to Naldanga estate which is said to be within the jurisdiction of 24-Pargannas is property given in Schedule No. 37 and is said to be the residential house at 10, Hatibagan Road at Beniapukur. The affidavit sworn by the Plaintiff on the 17th of July, 1930, in paragraph 5 states that the house at No. 10, Hatibagan Road was before this the residential house of the Raja of Naldanga. The house in 83, Linton Street which is covered by Schedule No. 38 is, according to the said affidavit, the rented house of the Raj. The owner is a very different person. So this cannot be said to be the property in respect of which the partition can be claimed. It appears that in 1913 the present Plaintiff, as one of the two sons of Surendra Bhusan Ganguly alleged to be a lunatic, filed a pauper application for declaration of right of the alleged lunatic to and for khas possession of 1/3rd share of the Raj known as Naldanga Raj estate in the Court of Subordinate Judge of 24-Perganas and notice of this application was served on Raja Pramatha Bhusan who by his petition of objection distinctly stated that the Alipur Court had no jurisdiction to try the said pauper application. The Subordinate Judge stated in his judgment that the applicant Brojendra who is the Plaintiff in the present suit admitted that the Alipore Code had no jurisdiction. See pages 23-25, Part II of the paper-book. This was a proceeding inter partes and concludes the question against the Appellant that so far as Naldanga Raj estate is concerned there was no property of that estate within the jurisdiction of the Alipore Court. The lease of 10, Hatibagan Road (Beniapukur) at page 16 (Part II) shews that Raja Pramatha was a mere tenant in respect of the same and that the owner of the said house was one Rai Gopal Chandra Chatterji, and there is also oral evidence to that effect. See the deposition of the Raja at page 85. The lands in village Halishahar or the lands and houses in village Ichapur, Gobordanga have all been disclaimed by the Raja and he says that they do not belong to the Naldanga Raj. It is argued, however, for the Appellant, that they are certainly the paternal properties of the Plaintiff and as the Plaintiff''s claim is that the adoption of Raja Pramatha Nath into Naldanga family is invalid, the Raja still continues to be a member of the family of his birth who possesses the Halishahar properties and as such the Plaintiff is entitled to a partition of Halishahar properties with the Raja and thus the Alipore Court would have jurisdiction to entertain the suit. The adoption of the Raja took place in 1870, and that adoption is being questioned nearly sixty years after the adoption. In such circumstances prima facie the Court is entitled to hold that it would be difficult for the Plaintiff to challenge the validity of the adoption. For the purposes of determining the jurisdiction of the Court it would be right to come to the conclusion that the Raja has been adopted in the Naldanga Raj family and has no interest in the Halishahar family. This finding of ours will not preclude the Court from coming to a different conclusion on the evidence in this case. This finding is arrived at only for the purpose of determining the question of jurisdiction.
11. In this view we are of opinion that the decision of the Subordinate Judge is right and this appeal must be dismissed but in all the circumstances there will be no order as to costs.
M.C. Ghose, J.
I agree.
