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Musammat Masihunnissa and ors. Vs. Musammat Kaniz Sughra - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All276; 60Ind.Cas.975
AppellantMusammat Masihunnissa and ors.
RespondentMusammat Kaniz Sughra
Excerpt:
.....no appeal against--order, correctness of, whether can be questioned at later stage--remand under rule 25--appeal coming before different judge or bench--order, whether binding. - u.p. zamindari abolition & lands reforms act, 1951 [act no. 1/1951]. section 3(4) & u.p. land revenue act, (3 of 1901). sections 14-a (3) & 14; [s.rafat alam, r.k.agarwal & ashok bhushan, jj] expression collector- held, it includes additional collector. powers and functions of collector can be exercised by additional collector under section 198(4) of 1950 act, provided he has been so directed by collector of the district. [1996 aihc 3628 overruled]. - the defendants pleaded that, whether or not the plaintiff had a good title, neither she nor the transferors from whom she claimed had been in possession within..........suit as barred by limitation, and that finding was upheld by the court of first appeal. on second appeal a learned judge of this court held that the decision of the two courts below bed proceeded upon an erroneous view of the law. he treated the finding of the lower appellate court is amounting to nothing more than a bad in that the plaintiff and her transferors had not been in actual possession within 12 years of the institution of the emit. hi held that it had not yet bean determined whether the plaintiffs transferors had been ousted by the defendants so as to set limitation running in favour of the latter and against the plaintiff and her transferors. on this view he set aside the decision of the lower appellate court and remanded the case to that court under order xli, rule 23, of.....
Judgment:

1. The plaintiff in this case sued for possession over a half share in a certain house. The defendants pleaded that, whether or not the plaintiff had a good title, neither she nor the transferors from whom she claimed had been in possession within 12 years of the institution of the suit. They further pleaded that they them selves had been adverse possession for more than 12 years prior to the institution of the Brit. The first Court dismissed the suit as barred by limitation, and that finding was upheld by the Court of first appeal. On second appeal a learned Judge of this Court held that the decision of the two Courts below bed proceeded upon an erroneous view of the law. He treated the finding of the lower Appellate Court is amounting to nothing more than a Bad in that the plaintiff and her transferors had not been in actual possession within 12 years of the institution of the emit. Hi held that it had not yet bean determined whether the plaintiffs transferors had been ousted by the defendants so as to set limitation running in favour of the latter and against the plaintiff and her transferors. On this view he set aside the decision of the lower Appellate Court and remanded the case to that Court under Order XLI, Rule 23, of the Code of Civil Procedure, fur a decision on the merits. The lower Appellate Court has now recorded a finding that the defendants have failed to prove ouster, i.e., the defendants have not satisfied the lower Appellate Court that their possession had become adverse to that of the plaintiff's vendors more than 12 years prior to the institution of this suit. Upon this finding the lower Appellate Court has set aside the decree of the trial Court and has once more passed an order of remand under Order XLI, Rule 23, of the Civil Procedure Code, directing the Trial Court to dispose of the suit on the merits, the issue of limitation being finally determined in favour of the plaintiff. The appeal before us is against this order of remand. The first point taken is, that the Court of first instance had found that the defendants had been in adverse possession and that this finding had been upheld by the lower Appellate Court before the second appeal to this Court was filed. In effect, we are asked to re consider the correctness of the order of remind passed by the Single Judge of this Court when disposing of the second appeal. There is authority for the proposition that, where a Judge of this Court has remitted issues under Order XLI, Rule 25 of the Code of Civil Procedure, and the appeal subsequently comes up for disposal before another Judge, or a Bench of this Court differently constituted, the Bench which is seized of the appeal and on which the law east's the burden of finally disposing of the same is not bound by the order remitting the issues. It can consider the question whether that order was a proper one and, if it comes to the conclusion that that order should never have been passed, it can ignore the findings of the remanded issues and any evidence which may have bean taken after the order remitting the said issue. The reason for this is obvious. No appeal lies against the order remitting issue, nor does that order dispose of the pending appeal. Consequent the Tribunal which undertakes the responsibility of finally disposing of the appeal is seized of the entire case and has jurisdiction to the consider the propriety of an interim order, such as that remitting issue, passed by another Judge, or by a Bench differently constituted. In the present case the Single Judge of this Court disposed of the appeal then pending before him finally by means of his order of remand, which was not under Order XLI, Rule 25 out under Order XLI, Rule 23, of the Civil Procedure Code. We have no responsibility for the result pf that appeal. The decision of, the Single Judge of this Court could have been challenged by appeal under the others Patent and was not so challenged. The principle laid down in Section 105, Clause (2), of the Civil Procedure Code, which prohibits a party, after submitting to an order of remand from which an appeal lay, from disputing its correctness at a later stage applies also to the, case now before us. We are satisfied that the appellant is not entitled to challenge the correctness of the order of remand passed by this Court on the second appeal. As the case stands, this finding disposes of the appeal before us. Whatever may have happened previously the lower Appellate Court has now recorded a finding that adverse possession for 12 years prior to the institution of the suit is not proved on behalf of the defendants. That is a finding of' fact which Cannot, be successfully impugned on any of the grounds taken in the memorandum of appeal before us. This, appeal, therefore fails and we dismiss it accordingly with costs.


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