1. These are two connected appeals arising out of proceedings under Section 144, Civil P.C. in the Court of the Assistant Collector, First Class, District Ballia. Sheo Nandan Singh, the appellant in this Court, obtained two decrees for ejectment from the rent Court against the opposite parties in these two appeals and was put in possession of the properties in respect of which he had sued for ejectment. The opposite parties appealed with success and thereafter applied under Section 144, Civil P.C., for restoration of their possession and for mesne profits for the period of their dispossession. The Assistant Collector assessed the mesna profits and awarded them against the plaintiff-appellant Sheo Nandan Singh. The latter was satisfied with the order of the Assistant Collector but the opposite parties appealed to the District Judge who decreed a larger amount to the opposite parties. The present appeals have been laid to this Court against the decision of the learned District Judge.
2. The first point urged in these appeals before me is that no appeal lay to the District Judge from the order of the Assistant Collector allowing restitution and the Court below has exercised jurisdiction not vested in it in interfering with the order of the trial Court. I think this contention is correct and must be accepted. Orders passed under See. 144, Civil P.C., are no doubt included in the definition of the word 'decree' as that term is defined in the 'Civil Procedure Code, but the Agra Tenancy Act has its own definition of that expression 'decree' which for the purposes of that Act 'means any order which so far as the Revenue Court is concerned finally disposes of a suit.' Now an order under Section 144, Civil P.C., is not an order in a suit; and does not dispose of a suit. Consequently such an order is clearly excluded from the definition of 'decree' as given in Section 3, Clause (4), Agra Tenancy Act. Section 242, Agra Tenancy Act, provides for appeals to the District Judge from the decree of an Assistant Collector of the first class in any of the suits included in Group A of Schedule 4 of that Act in which the amount or value of the subject-matter exceeds Rs. 200 or which relate to matters specified in Clause (b) et seq. of Section 242. This Section speaks only of suits and decrees in suits. An order under Section 144, Civil P.C., not being a decree under the Agra Tenancy Act and proceedings under Section 144 taken on an application not being a suit, no appeal lies to the District Judge under Section 242, Agra Tenancy Act, from the decision of the Assistant Collector. The matter is concluded by a decision of a Bench of this Court :Kashi Prasad Singh v. Balbhaddar Singh (1922) 9 A.I.R. All. 71.
3. The question of jurisdiction raised in these second appeals does not appear to have boon raised in the Court below, but that does not preclude its being raised and considered in this Court : see Municipal Board, Benares v. Krishna and Co. : AIR1935All760 where the plea of want of jurisdiction was allowed to be raised in a Letters Patent appeal. Reference was made in the above-mentioned ruling to the earlier case in Ramkindar Rai v. Tufani Ahir : AIR1931All35 in which it was conceded that a question involving jurisdiction can be raised for the first time in appeal. As to whether when the appeal to the District Judge was incompetent, this Court can in second appeal set aside the order of the District Judge, reference may be made to the Bench case in Khim Chand v. Keshar Singh : AIR1933All403 where it was held that where a District Judge assumes a jurisdiction which he does not possess the order can be set aside by the High Court in second appeal. For the above reasons, I hold that the appeal to the District Judge was incompetent and that his order can and should be set aside by this Court in second appeal. I therefore accept these appeals, set aside the order of the lower Appellate Court and restore the decision of the Assistant Collector. As to costs, since the point of jurisdiction was not raised in the Court below, I think it would be fair that the parties should bear their own costs of the lower Court as well as of this Court and I order accordingly. Leave to file Letters Patent appeal is refused.