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Hira Lal Vs. Maharaj Singh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Judge
Reported in35Ind.Cas.105
AppellantHira Lal
RespondentMaharaj Singh
Excerpt:
agra tenancy act (ii of 1901), sections 181, 182 - appeal from order of remand--practice, uniform, desirability of--civil procedure code (act v of 1908), order xli, rule 23. - - the appellant's case is clearly not stronger because it was an order remanding only a part of the suit......dismissed the suit, but incidentally came to a finding that the defendant was holding the land in suit rent free under a judicial decision and was, therefore, not liable to pay the revenue assessed thereon. apparently the assistant collector found it necessary to determine this further point, after he had held that the land was not liable to resumption, because of the alternative prayer at the end of the plaint for any other relief which might be deemed beneficial to the plaintiff in the court's opinion. the plaintiff appealed to the district judge, who agreed with the assistant collector that the land was not liable to resumption. he differed from the assistant collector, however, in holding that the land must be deemed to be held by the defendant in proprietary right and that.....
Judgment:

1. This appeal, along with Nos. 157, 158 and 159, registered and filed to this Court as first appeals from order, arise out of certain litigation in the Revenue Courts. The suit was by a landholder against a person in possession of-land held rent free and the principal relief sought was an order for resumption of the same. The Assistant Collector dismissed the suit, but incidentally came to a finding that the defendant was holding the land in suit rent free under a judicial decision and was, therefore, not liable to pay the revenue assessed thereon. Apparently the Assistant Collector found it necessary to determine this further point, after he had held that the land was not liable to resumption, because of the alternative prayer at the end of the plaint for any other relief which might be deemed beneficial to the plaintiff in the Court's opinion. The plaintiff appealed to the District Judge, who agreed with the Assistant Collector that the land was not liable to resumption. He differed from the Assistant Collector, however, in holding that the land must be deemed to be held by the defendant in proprietary right and that the defendant was liable to pay the revenue assessed thereon. He then proceeded to pass an order embodying the conclusions at which he had arrived, but closing with an order of remand, purporting to be passed under the provisions of Order XLI, Rule 23, of the Code of Civil Procedure, returning the case to the Court of first instance with directions to proceed to dispose of the suit completely by determining the revenue payable by the defendant in accordance with the provisions of Section 158 of the Agra Tenancy Act.

2. The defendant having come to this Court in appeal, a preliminary objection has been taken to the effect that no appeal lies. Under the provisions of the Tenancy Act no appeal lies from an order of remand passed by a District Judge under the provisions of Order XLT, Rule 23, of the Code of Civil Procedure. This is apparent from a consideration of the provisions of Sections 181 and 182 of the Tenancy Act itself, and has been repeatedly affirmed by this Court, as in the case of Zahur Ali v. Sher Ali 28 A. 283 A.W.N. (1906) 5 : 3 A.L.J. 20 and in that of Gulzari Lal v. Latif Husain 35 Ind. Cas. 27 : 14 A.L.J. 84 : 38 A. 181. The question before us is, not whether the order of the District Judge is a proper one, or one which he ought to have passed under the provisions of Order XLI, Rule 23, but whether an appeal lies in law against that order. An appeal cannot lie unless the Legislature has seen fit to provide for it and it seems to us, after a full consideration of the arguments, that we should adhere to the previous decisions of this Court in holding that the case is one in which an appeal is not provided for by the Statute. We would further point out the desirability of the Courts of co-ordinate jurisdiction in the same Province. following cognate decisions on matters of practice. It is absolutely impossible for legal advisers of parties to know what steps to take and how to advise their clients, unless they know what the practice of a Court is, and this they cannot know if a Court is constantly distinguishing it. We think, following the decisions which have been referred to, that this preliminary objection may be justified on one short ground. It is not denied, and could not be contested, that, if this had been an order remanding the whole suit, no appeal could be brought. The appellant's case is clearly not stronger because it was an order remanding only a part of the suit. We, therefore, dismiss this and the connected appeals with costs.


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