1924 (1) TMI 1 - HC - Indian Laws

Summary

Issues Involved:
1. Jurisdiction of the Kumbakonam Sub-Court to pass the final decree.
2. Waiver of objection regarding territorial jurisdiction.
3. Validity of the agreement and allegations of document tampering.
4. Entitlement to recover property and limitation.

Issue-wise Detailed Analysis:

1. Jurisdiction of the Kumbakonam Sub-Court to pass the final decree:
The primary issue was whether the final decree passed in O.S. No. 15 of 1903 by the Kumbakonam Sub-Court was void due to lack of jurisdiction after the jurisdiction over the mortgaged property was transferred to the Mayavaram Court in 1907. The court concluded that once a suit is properly instituted, the court retains jurisdiction to try it to its conclusion unless explicitly removed by a competent authority. The court referenced several precedents, including *Sadasiva Pillai v. Kalappa Mudaliar* and *Fedavalli Narasiah v. Mangamma*, to support that changes in jurisdiction do not affect pending suits. Thus, the final decree was not passed without jurisdiction.

2. Waiver of objection regarding territorial jurisdiction:
The judgment emphasized that objections to territorial jurisdiction must be raised at the earliest opportunity as per Section 21 of the Civil Procedure Code. Since the plaintiff had consented to the jurisdiction and invoked it, he was barred from raising the objection later. The court noted that territorial jurisdiction could be waived, unlike subject-matter or pecuniary jurisdiction, which cannot be waived by consent of parties. The court cited *Zamindar of Ettiyapuram v. Chidambaram Chetty* to extend the principle of Section 21 to this case, concluding that the final decree was binding on the plaintiff.

3. Validity of the agreement and allegations of document tampering:
The plaintiff alleged that the agreement (Ex. I) had been tampered with to alter its terms, specifically that the document originally provided for the retention of one veli of land by the mortgagors. The court found evidence supporting this claim, including letters (Exs. L and L(1)) indicating discussions about retaining one veli. The court noted that the document showed clear signs of erasure in several places, which were not adequately explained by the defendants. Consequently, the court held that the agreement was for four velis of land, not five as contended by the defendants.

4. Entitlement to recover property and limitation:
The court addressed whether the plaintiff was entitled to recover any portion of the property. It was determined that the suit was not barred by limitation as it was not a suit to enforce the agreement but to recover land to which the plaintiff was entitled and from which he had been dispossessed. The court concluded that the plaintiff was entitled to recover one veli of land out of the five velis mortgaged.

Conclusion:
The court allowed the appeal in part, granting the plaintiff a decree for the recovery of one veli of land and ordered proportionate costs. The related Appeal No. 329 of 1920 was dismissed with costs.