C.P.Sinha, J.

(1) This is a defts. appeal which arises out of a suit filed by the pltf. for a declaration that the order of eviction by the Comr. Of the Patna Division, dated 29-8-1947, passed under the Bihar Buildings Control Act, 1947, is ultra-vires, null and void, without jurisdiction and not; binding on the pltf.; the pltf has also prayed for the issue of a permanent injunction restraining the deft. from ousting the pltf. from any portion of holding No. 23, circle No. 16 ward No. 8, situate in mahalla Sabzibagh of Bankipur.

(2) The first Ct. dismissed the suit, but it has been decreed on appeal by Mr. K. K. Dutta, Addl. Subordinate Judge, 2nd Ct. Patna, by his judgement dated 23-2-1948.

(3) The pltf.s case is that the entire holding No. 23 as well as holding No. 22, which is adjacent north of it, belonged to Messrs. T. C. Palit and S. C. Palit, that out of these two holdings, holding No. 22 was the tenancy of the deft. applt. and the northern portion of holding No. 23 was in the tenancy of one Lachhmi Mistry and the southern portion of holding No. 23, which is the portion in. dispute, has been in the tenancy of the pltf.s family since several generations and the pltf. holds-a shop and also lives in it with his family. It is alleged by the pltf. that the deft. took a permanent settlement of holding No. 22 as well as the northern portion of holding No. 23 from the proprietors by a deed dated 6-8-1946, and thereafter the deft. applied to the House Controller, Patna for evicting the pltf. on the allegation that he had purchased both the holdings Nos. 22 and 2

3. The House Controller had rejected the appln. of the deft. but on appeal, the Comr. has ordered the eviction of the pltf. The pltf. alleges that he is a. permanent tenant of the holding and that there is no relationship of landlord and tenant between the deft. and the pltf. and therefore, according to him, the. Bihar Buildings Control Act, 1947, had no application and consequently, the order of the Comr.. under that Act is without jurisdiction.

(4) The deft. denied that the pltf. had a permanent tenancy in the disputed katra and also alleged that by the aforesaid deed the deft. has acquired interest in the entire holding No. 23 including the katra in the possession of the pltf. except to the extent of 3 feet out of that katra which is in the pltf.s occupation. The deft. pleaded further that the order passed by the Comr. was a valid order within his jurisdiction and, as such, the suit was barred under the provisions of the Act.

(5) The learned lower appellate Ct. has com to the following findings : that the civil Ct. in spite of the provisions contained in Section 18, Claulse (3), Bihar Buildings Control Act, has the jurisdiction to go into the question whether the Comr.s order has been passed against the provisions of this Act, or in violation of the fundamental principles of judicial procedure and the civil Ct. has jurisdiction to consider whether the order of the Comr. under that Act is ultra vires upon any of those grounds. It has been found further that the pltf. has failed to prove that he had a permanent tenancy in the disputed katra. The Ct. below has also found that the disputed katra comprises the southern portion of municipal holding No. 28. The deft. had admit lied that the proprietors, namely, the Palit brothers, had made a permanent settlement in favour of the deft. by virtue of the deed, Ex. A, dated 6 8-46. The Ct. below, upon a comparison of the boundaries and upon the construction of the deed (EX. A) has found that the permanent settlement with the deft. includes the whole of the disputed katra excepting an area of 6 1/2 feet towards the south He has found further that there is no relationship of landlord and tenant between the deft. and the pltf. with respect to that part of the disputed katra, namely, the southern portion up to a length of 5 1/2 feet, and upon that finding, he has held the order of the Comr. evicting the pltf. is evidently without jurisdiction on that ground alone so far at least as that portion of the katra is concerned. According to the Ct. below, the entire katra constitutes only one room and it is not possible to evict the pltf. from any particular portion of it without evicting him from the whole, and in that view of the matter, he has decreed the suit, holding that, as the deft had interest with respect to only a part o the katra and because the Palit brothers, to whom the rest of the katra belonged, did not join in the appln. for eviction, the appln. was not on behalf of the landlords of the entire katra and, therefore, there was no valid appln. under Section 11, cl (3) of the Act and, consequently, the Comr. had no jurisdiction to pass any order of eviction on such an appln.

(6) It has been contended on behalf of the applt. that the civil Ct. has DO jurisdiction to set aside the order of the Comr. under the Bihar Buildings Control Act, 1947, on the findings arrived at by the Ct below. It is also contended that the katra is only a sort of a verandah which is enclosed by shutters and that there is no difficulty in evicting the pltf. from that portion of the katra of which the def., had taken settlement and further that the deft. is the sole landlord so far as that portion of the katra is concerned and it is not a case of joint landlords.

(7) The Bihar Buildings Control Act, 1947, is a special Act which the Legislature has enacted to meet the emergency created by the scarcity of house accommodation and to prevent, as far as possible, the spiral rise in the rent of houses. The statute is self-contained and has created a special tribunal for deciding the rights and liabilities of the parties under that Act and has also provided for appeal against orders passed by the House Controller. This Act has barred the jurisdiction of the Civil Cts. under Section 18 of the Act. But it must be conceded, in spite of such a bar, that, if the House Controller or the Comr. acts without jurisdiction or in excess of the jurisdiction as given to them under the Act, the civil Ct. has jurisdiction to determine whether or not as order passed by the House Controller or the Comr. is without jurisdiction or in excess of the jurisdiction conferred upon them by the Act. Where the liability is statutory, the party must adopt the remedy given to him by the statute. In the light of these observations, I would now address myself to the consideration of the question whether the Comr. in this case has acted without jurisdiction or in excess of the jurisdiction as given to him under the Act.

(8) Before I consider that question I would like to clear the ground of fact. Upon the finding of the Ct. below, the deft. has acquired a permanent right under his deed (Ex. A) to the extent of 64 1/2 feet in holding No. 28 and that the remaining area to the extent of 5 1/2 feet in that holding towards the south does not belong to him. The Palit brothers, the proprietors, therefore, have no interest in the said holding No. 28 except to the extent of 5 1/2 feet. The katra as appears from its very nature, can be held by different persons in specified parts without disturbing the possession of the respective holders of the other parts.

(9) When an appln. for eviction is made under the Act, the House Controller or the Comr., as the case might be, has, to find out whether the parties stand in the relation of landlord and tenant. That would be the first question to decide before any action is taken under that Act. In the present case, it was not disputed before the House Controller or the Comr. that the pltf. was not the tenant of the deft. and in that view, the House Controller and the Comr. had had no necessity of coming to an express finding on that point. The parties before the House Controller proceeded on the footing that they answered the definition of "tenant" and "landlord" as given in that Act and that there existed a relationship of landlord and tenants between them Bat supposing this question had been raised before them, was it open to those authorities to come to a finding on that point to enable them, to apply the provisions of the Bihar Buildings Control Act If the answer is in the affirmative, it must be held that the House Control authorities had jurisdiction to decide that question of fact. Ii that be so, can it be said that the tribunal has exceeded its jurisdiction as given under the Act or that it had no jurisdiction to decide that matter. In my view, if a Ct. or a tribunal with limited jurisdiction is given authority under law to decide a particular matter, but the decision of that particular matter depends upon certain preliminary findings of fact, that tribunal must have jurisdiction to decide those preliminary points of fact and the civil Ct. will have no jurisdiction to go into the correctness or otherwise of the findings of the tribunal in regard to those preliminary questions of fact.

(10) I would now consider the oases which have been cited at the Bar on the question of the jurisdiction of civil Cts. to review or revise the decision of a tribunal of limited jurisdiction. In the case of Ishan Chandra v. Moomraj Khan, A. I. R. (13) 1926 Cal. 1101 [LQ/CalHC/1926/210] : (97 I. C. 770) the following observations of Ghose J., are very much apposite to the question before this Ct.

"There cannot be any question that a decree passed without jurisdiction is a nullity. But the expression jurisdiction has not unoften been used with ambiguity, and the distinction between a judgment where jurisdiction is assumed by the Ct. where there is absolute want of it and where the Ct. in the exercise of its jurisdiction acted wrongly in disregard of the law has not always been borne in mind. This want of discrimination in the use of the term has resulted in a good deal of confusion. The distinction between a defeat of jurisdiction and an error or irregularity in procedure is pointed out in Hawes on the Jurisdiction of Courts thus : In the former case, the whole proceeding is corum non judice and void, in the latter the proceeding cannot be impugned in a collateral action, even though it be erroneous upon its face, and even though it relates to a fact which in a former stage of the proceeding might have been essential to confer jurisdiction. It is examinable only on a direct proceeding as by an appeal or by a proceeding in the nature of an appeal, and where there is no remedy of that kind, it concludes for ever."

The aforesaid observations of Ghose, J. and the question (quotation) from Hawes on the Jurisdiction of Courts, in my opinion, must conclude the matter. This case has been followed, in R. Krishnamurthy v. S. Parihasarathy, A. I. R. (36) 1919 Mad 730 : (1949-1 M. L. J. 412). In this case a similar question had arisen for decision namely whether the Civil Ct. can entertain a suit to set aside an order passed under the Madras Buildings (Lease and Rent Control) Act (xv [15] of 1946). The question raised In that case was that under the Madras Act the decision of the tribunal was without jurisdiction because notice to quit had not been given before action was taken under that Act for the eviction of the tenant and it was contended that, in the absence of a notice to quit, the Rent Controller under the Madras Act had no jurisdiction to deal with the appln. for eviction of the tenant, and upon a review of several cases of different H. Ct. it was held in that case that

"if the question which is alleged to create the want of jurisdiction is one which the Ct. is bound to decide, the matter is not one relating to jurisdiction; if there is any error in the decision, it can only be remedied by an appeal or other proceeding known to law."

In Mangtu Lai v. Secretary of State, 18 Pat. 854 : (A. I. R

. (27) 1940 Pat. 161) [LQ/PatHC/1939/154] a similar view was taken though the facts were different. The question in that case was as to whether a civil Ct. was entitled to entertain a suit to set aside the decision of the Revenue Ct. under Section 45, Bengal Cess Act (IX [9] of 1880) to the effect that cess was recoverable, and his Lordship Fazl Ali J. with whom Harries C. J. agreed, made the following observations:

"The question whether cess was recoverable in this case under Section 45 of the Act was one to be decided by the Revenue Ct. which issued the certificate and if that Ct. has decided, rightly or wrongly, that the cess was recoverable and the claim made for the recovery was not barred by limitation, a suit cannot be entertained in a civil Ct. to set aside that decision. A Civil C t. can entertain a suit only if the order of the Revenue Ct. is without jurisdiction and not because the decision pronounced by the Ct. is not correct."

Mr. Chatterji, the learned counsel on behalf of the resp. had himself cited the case in Krishnamurthy v S. Parthasarathy, A. I. R. (36) 1949 Mad. 780 [LQ/MadHC/1949/3] : (1949-1 M L. J. 412), on another point which I will consider later, but that ease is against him on the question of jurisdiction, as I have already indicated. He also cited the case of Secretary of State v. Mask and Co., A I. R

. (27) 1940 P. C. 105 : (I. L. R. (1940) Mad. 599) and relied upon a passage at p. 110 which reads as follows:

"It is settled law that the exclusion of the jurisdiction of the Civil Cts. is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also wall settled that even if jurisdiction is so excluded, the Civil Cts. have jurisdiction to examine into case- where the provisions of the Act have not been complied with, or the statutory tribunal has not. acted in conformity with the fundamental principles of judicial procedure."

In my judgment, this case does not differ in principle from the other cases cited above in this connection In the present Act with which we are concerned here the jurisdiction of the civil Ct. is excluded in the following terms which are to be found in Section 18 (3) of the Act:

"The decision of the Comr and subject only to such decision, an order of the Controller shall be final and, shall not be liable to be questioned in any Ct. of law whether in a suit or other proceeding by way of appeal or revn."

I would, therefore, hold that the civil Ct. had no jurisdiction to override the decision of the Comr. under the Bihar Act of 1947. But the decision of the Comr. can be final only to the extent of the defts portion of holding No. 2

3. On the finding of the Ct. below, the deft had no interest in the 5 1/2 feet of the holding to the south of it and therefore, it was beyond the subject-matter of the decision of the Comr. and as I have said above, this 5 1/2 feet of holding No. 23 is severable from the rest and there is no difficulty in giving relief to the pltf. to the extent of that portion. [10a] Mr. Chatterji on behalf of the resp. has contended that the jurisdiction of the House Controller and the Comr. was ousted from another point of veiw, namely, that the Palit brothers and the deft. being the joint lessors no order of eviction could have been passed in law upon the appln. of only one of the joint lessors, namely, the deft. and has relied upon a number of authorities namely Baraboni Coal Concern Ltd. v. Gokul-ananda, 61 Claulse 313 : (A. I. R. (21) 1934 P. C. 58) Satyesh Chandra v. Jillar Rahman, 27 C. L. J. 438 : (A. I. R. (6) 1919 Cal. 997), Jagdishwar Dayal Singh v. Dwarka Singh, 12 Pat. 626 : (A. I. R. (20) 1933 P. C. 122) and Gopal Ram v. Dhakeshwar Pershad, 35 Cal. 807 : (7 C. L. T. 483) and the definition of landlord and tenant as given in the Act. There are two answers to this contention. One is that the Palit brothers and the deft. were not the joint lessors inasmuch as by the settlement as embodied in Ex. A the Palit brothers had made a permanent settlement of holding No. 22, and the major part of holding NO. 23 with the deft. and therefore, the deft. was the sale landlord of the plfcf. so far as that portion was concerned. Therefore in terms those authorities have no application. The other answer is that if as I have held above the House Controller and the Comr. had jurisdiction to decide the question of eviction under the Act, their decision, either on law or on fact right or wrong was declared to be final under that Act and even if the decision was opposed to law, the Civil Ct. can have no jurisdiction to go into that decision in a collateral proceeding. If the party feels aggrieved he must find his remedy within the four corners of that Act, and if no second appeal was provided under that Act, he can have no other remedy which is barred under Section 18 (3) of the Act.

(11) Mr. Chatterji has also faintly argued that the provisions of Section 111, T. P. Act, have not been abrogated by the Bihar Buildings Control Act. He contends that the tenancy of the deft. has not been determined in this case in accordance with the provisions of the T. P. Act. The short answer to this contention is that Section 11, Bihar Buildings Control Act, says in Section 11 (1) that

"Notwithstanding anything contained in any agreement or law to the contrary and subject to the provisions of B. 12 where a tenant is in possession of a building he shall not be liable to be evicted therefrom whether in execution of a decree or otherwise except . . . ."

upon certain specified conditions mentioned in that section. This Act is a self-contained Act. It has provided the conditions of ejectment of a tenant. It has made provision for deposit of rent and for obtaining receipt by the tenant on payment of rent, provided the forum and has also provided for appeal from the order of the House Controller. Mr. Chatterji has relied upon the case of Parthasarathy v. Krishnamoorthy, A. I. Rule (36) 1949 Mad. 387 [LQ/MadHC/1948/215] : (1948-2 M. L. J. 39l) where the question was whether a notice to quit was necessary to give jurisdiction to the Rent Controller under the Madras Buildings Act to order eviction under Section 7 of that Act. Subba Rao J. held that the Rent Controller had no jurisdiction to order eviction under that section where there had been no previous or antecedent determination of the tenancy in accordance with the provisions of the T. P. Act. This decision was set aside in the Letters Patent appeal against that judgment and it was held that Section 111 (h), T. P. Act, had no place in the scheme of the procedure laid down in Section 7 and that an appln. for eviction can be made to the Rent Controller before the tenancy has been determined by notice to quit. The relevant extract of Section 7 of the Madras Act (The Madras Buildings (Lease and Rent Control) Act xv [15] of 1946 reads as follows: "A tenant in possession of a building shall not be evicted therefrom .... before .... the termination of the tenancy except in accordance with the provisions of this Section." The Bihar Act (Section 11) is couched in somewhat similar terms. It has laid down the condition or conditions on which a tenant could be evicted from a building and I do not see any reason to differ from the decision of the Madras Ct. on this point and I hold that Section 111, T. P. Act, has no application to the proceeding for eviction under the Bihar Buildings Control Act. Mr. Chatterji had also a cited case reported in Balmukund v. Harinarain, 27 Pat. 273 : (A. I. R. (36) 1949 Pat. 31) [LQ/PatHC/1948/40] but, in my judgment, it has got no relevancy so far as the present case is concerned. That was a case which has interpreted the word "Occupation" occurring in Sub-Section (3) of Section 11, Bihar Buildings Control Act. No other points were raised before this Ct. by any of the parties.

(12) I would accordingly hold that the order of the Comr. so far as the defts. portion of the holding No. 23 is concerned was a final order and that the Civil Ct. had no jurisdiction to go into that matter. The result is that the judgment of the Ct. below is set aside and the suit is dismissed in respect of the defts. portion in holding No. 23 namely the whole of holding No. 23 excepting an area of 5 1/2 feet in length towards the southern portion of holding No. 2

3. The deft. will be entitled to his costs in proportion to his success throughout, that is, three-fourths of the coats.