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Murat Pande Vs. Kesho Das and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in15Ind.Cas.27
AppellantMurat Pande
RespondentKesho Das and anr.
Cases ReferredSarnam Tewari v. Sakina Bibi
Excerpt:
.....trees prior to the year in suit and finding that the plaintiffs had failed to prove this, he held that he had no jurisdiction to inquire further into the respective rights and liabilities of the parties under the village custom or contract recorded in the wajib-ul-arz. hut he proceeded to consider further what remedy the plaintiffs had in the event of failure on the part of the defendant to deliver one-half of the produce due to them in any given year. he also remarked that, possibly, a suit for damages on the ground that the plaintiffs had failed to obtain the enjoyment of fruits to which they were entitled would lie in the civil court. i think, therefore, that the learned district judge, in holding that he had jurisdiction to entertain the second appeal, was, at any rate, not so..........collector and that the defendant held the grove in suit as a tenant. the question was whether he held it rent-free or whether he was liable to pay anything to the plaintiffs as rent therefor. in deciding this issue, the assistant collector expressed a doubt whether, according to the provisions of the village record-of-rights upon which the plaintiffs based their claim, the plaintiffs were entitled only to one half of the fallen timber of the grove or to one half of the produce of the fruit bearing trees as well as one half of the fallen timber. he did not, however, decide this point. he went on to say that in his opinion it was only necessary for him to decide whether or not the plaintiffs had actually been receiving one-half of the produce of the fruit bearing trees prior to the year.....
Judgment:

Piggott, J.

1. In this case, the plaintiffs as proprietors of a certain village sued the defendant as tenant of a certain grove therein situated for the cash equivalent of one-half of the produce of the fruit-bearing trees in the said grove as being the rent due to them on account of the two years in suit. The suit was filed in the Court of an Assistant Collector of the second class. He framed three issues. The first of these raised the question whether the plaintiffs were entitled to claim the whole rent supposing it to be due, and it was decided in favour of the plaintiffs. The third issue related to the appraisement of the produce during the years in suit and was never decided at all. The second issue ran as follows: Is the grove in suit in possession of the defendant as a rent free grant?' It is clear, therefore, that it was common ground between the parties in the first Court that the suit had been rightly instituted in the Court of an Assistant Collector and that the defendant held the grove in suit as a tenant. The question was whether he held it rent-free or whether he was liable to pay anything to the plaintiffs as rent therefor. In deciding this issue, the Assistant Collector expressed a doubt whether, according to the provisions of the village record-of-rights upon which the plaintiffs based their claim, the plaintiffs were entitled only to one half of the fallen timber of the grove or to one half of the produce of the fruit bearing trees as well as one half of the fallen timber. He did not, however, decide this point. He went on to say that in his opinion it was only necessary for him to decide whether or not the plaintiffs had actually been receiving one-half of the produce of the fruit bearing trees prior to the year in suit and finding that the plaintiffs had failed to prove this, he held that he had no jurisdiction to inquire further into the respective rights and liabilities of the parties under the village custom or contract recorded in the Wajib-ul-arz. He gave as his reason for this finding the ruling of this Court in Sarnam Tewari v. Sakina Bibi 3 A. 37. The plaintiffs took the case on appeal to the Court of the Collector. The Collector came to the conclusion that the plaintiffs were entitled to receive one-half of the produce of the fruit-bearing trees from year to year; hut he proceeded to consider further what remedy the plaintiffs had in the event of failure on the part of the defendant to deliver one-half of the produce due to them in any given year. He held that on the terms of the contract or custom recorded in the Wajib-ul-arz, the plaintiffs' only remedy would be a suit for ejectment against the defendant for breach of the conditions of the lease on which he held the grove. He also remarked that, possibly, a suit for damages on the ground that the plaintiffs had failed to obtain the enjoyment of fruits to which they were entitled would lie in the Civil Court. The matter was then taken to the Court of the District Judge in Second Appeal. The District Judge held that a question of jurisdiction had in fact been decided by the Collector within the meaning of Section 180 of the Agra Tenancy Act (II of 1901) and that an appeal lay to his Court. He then agreed with the Collector that the plaintiffs were entitled to receive half the produce of the fruit bearing trees in the grove in suit every year: and differing from the Collector he further held that there was no reason why the plaintiffs should not enforce this right by way of a suit for arrears of rent under the Tenancy Act. There was nothing left for him to decide except the question of appraisement of the cash value of the plaintiffs' share of the produce for the years in suit. It would have been easy for him to pass an order under the provisions of Order XLI, Rule 25, calling for a finding on this point from the lower Appellate Court and then to dispose of the suit accordingly. He preferred to pass an order under the provisions of Order XLI, Rule 23 of the Code of Civil Procedure remanding the suit through the lower Appellate Court to the Court of first instance for disposal on the merits. The defendant has brought this order before this Court by a petition of revision. In this petition, he does not say that the learned District Judge had no jurisdiction to entertain the appeal presented to his Court, but practically this question was raised by the arguments before me. I am not bound to deal with the question at all as it is not taken in the petition for revision. I, therefore, merely remark that, in my opinion, both the Assistant Collector and the Collector had in effect held that there was a difficulty about jurisdiction which either prevented them from giving the plaintiffs relief to which they would otherwise have been entitled, or at any rate debarred them from considering the question whether the plaintiffs might not have been entitled to the relief claimed if they had brought their suit as one for damages in a Civil Court. I think, therefore, that the learned District Judge, in holding that he had jurisdiction to entertain the second appeal, was, at any rate, not so clearly wrong as to compel me to interfere with his order of my own motion upon a ground not taken in the petition before me. In the next place, it is contended that the District Judge was wrong in holding that the suit as brought would lie in a rent Court. This would be at most a wrong decision on question of law which the Court of Second Appeal had jurisdiction to decide. It is, moreover, a somewhat difficult question upon which it does not seem to me altogether easy to harmonize the decisions of this Court as they stood before Local Act II of 1901 was passed. On these grounds alone, I might decline to interfere in revision, I am further of opinion that the definition of the word rent', contained in Section 4 of the Agra Tenancy Act (II of 1901), is wide enough to make a suit like the present maintainable as a suit for arrears of rent. Finally, it is contended that the District Judge had no jurisdiction to remand the suit for trial to the Court of first instance. The provisions of Order XLI of the Code of Civil Procedure refer directly to appeals from original decrees only. They are also applicable as far as may be (vide Order XLII of the same Code) to appeals from appellate decrees. It is, therefore, certainly within the jurisdiction of a Court of a Second Appeal to remand a suit back to the Court of first instance, if it is of opinion that both the Courts below have decided it on a preliminary point. Personally I consider the procedure adopted by the Court of Second Appeal in this case objectionable, and that the matter should have been dealt with under Order XLI, Rule 25 of the Code of Civil Procedure. If the matter were before me as a Court of Appeal, I am not sure that I should not be inclined to hold that a sufficient cause for interference had been made out. It is another matter, however, to say that it affords a good ground for revision that the learned District Judge has not taken the view. I should have been disposed to take as to what constitutes a decision on a preliminary point. I am of opinion that no adequate case for interference in revision has been made out. 1 dismiss this application with costs.


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