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HusaIn Bux Vs. Mahiradhoaj Singh - Court Judgment

LegalCrystal Citation
SubjectTenancy ; Civil
CourtAllahabad
Decided On
Reported inAIR1949All288
AppellantHusaIn Bux
RespondentMahiradhoaj Singh
Excerpt:
- - the answer is simple and it is that the legislature considers that the civil court is a better forum for deciding such difficult points as question of jurisdiction......the sub-division ached the revenue officer who was an assistant collector of the first class. an issue of jurisdiction was framed and decided by the revenue officer. normally, an' appeal from a decree under section 179, u.p. tenancy act, lies to the commissioner. when this appeal, however, came to be heard before the additional commissioner, he was of opinion that it lay to the district judge and. therefore, returned the memorandum of appeal for presentation to the proper court. a preliminary objection had been before him by the respondent, kunwar mahiradhoaj singh in this connection and the appellant husain bux did not contest that point with the result that the appeal was returned to be presented to the district judge in view of a section 265, (3) u.p. tenancy act. when the matter.....
Judgment:

Agarwala, J.

1. This is a reference by the District Judge of Jhansi under Section 289(2), U.P. Tenancy Act (XVII [17] of 1939).

2. The facts leading to the reference are these Kunwar Mahiradhoaj Singh had filed an application against Husain Bux under Section 175, C.P. Tenancy Act. This application was convested and must, therefore, have been forwarded by the Tahsildar under Section 179 of the Act to the Assistant Collector in charge of the sub-division ached the revenue officer who was an Assistant Collector of the first class. An issue of Jurisdiction was framed and decided by the Revenue officer. Normally, an' appeal from a decree under Section 179, U.P. Tenancy Act, lies to the Commissioner. When this appeal, however, came to be heard before the Additional Commissioner, he was of opinion that it lay to the District Judge and. therefore, returned the Memorandum of appeal for presentation to the proper Court. A preliminary objection had been before him by the respondent, Kunwar Mahiradhoaj Singh in this connection and the Appellant Husain Bux did not contest that point with the result that the appeal was returned to be presented to the District Judge in view of a Section 265, (3) U.P. Tenancy Act. When the matter came before the District Judge, he was of opinion that the appeal did not, lie to him but to the Commissioner and, therefore, has made this reference.

3. Section 255, Sub-section (3) of the Act reads as follows:

An appeal shall lie to the District Judge from the decree of an Assistant Collector of the first class or of a Collector in all suits, in which a question of jurisdiction has been decided and is in issue in the appeal.

4. There is no doubt that a question of jurisdiction was decided in this case. But the contention of the learned District Judge is that that question is not in issue in appeal and therefore, the appeal could not lie to him under Section 265(3). In this connection the learned District Judge points out that in the memorandum of appeal which was filed on behalf of Husain Bux in the Court of the Commissioner, no ground is taken to the effect that the revenue Court had no jurisdiction. It was only when the appeal came to be heard that the point of jurisdiction was raised The learned District Judge also points out that even after the memorandum of appeal had been presented before him, no application was made for its amendment by addition of a ground that revenue Courts had no jurisdiction. An application was certainly made by Husain Bux when the appeal was presented before the District Judge to the effect that an issue of jurisdiction had been decided by the trial Court and that on a preliminary objection being wised as to jurisdiction, the appeal was returned for presentation to the proper Court and was being presented before the District Judge, The mere fact, however, that no formal steps were taken to get the memorandum of appeal amended, cannot do away with the fact that the question of jurisdiction was raised and became an issue in the appeal, at any rate, on the date of the hearing before the Additional Commissioner, that is, on 14th December 1944, though no such question had been raised in the memorandum of appeal which was filed in September 1944. The question, therefore, that arises for decision under these circumstances is whether Section 265(3) would apply. This depends mainly on the interpretation of the word 'lie' in that section. If the word 'lie' only refers to the stage when the appeal is actually being filed and does not extend to the stage of hearing the appeal, this appeal must be held to have been properly tiled before the Commissioner. But if the word 'lie' includes the stage of hearing also the jurisdiction to hear the appeal will be in the District Judge as soon as the question of jurisdiction became an issue in the appeal.

5. There is no case so far on this point. The dictionary meaning of the word 'lie,' vide Murray's English Dictionary is 'to be admissible or sustainable.' To be admissible would seem to refer to the stage when the appeal is filed, but the word 'sustainable' would cover the hearing of the appeal also. It seems to us that the word 'lie' in Section 265(3) would cover not only the admissibility of the appeal but also its hearing. Thus as soon as the question of jurisdiction became an issue in the appeal it ceased to be sustainable before the Commissioner. The same conclusion would seem to follow from the policy of the Legislature in enacting Section 265(3). Why is it that the Legislature declares that appeals in which questions of jurisdiction are raised should lie in the civil Court? The answer is simple and it is that the Legislature considers that the civil Court is a better forum for deciding such difficult points as question of jurisdiction. If this be the underlying intention of the law, then it is immaterial that the question of jurisdiction is not raised in the grounds of appeal, but is raised subsequently at the time of hearing. We, therefore, hold that the appeal was properly taken to the District Judge and should have been decided by him.

6. The result is that we reject the reference and direct that the appeal in this case be heard by the learned District Judge.


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