1. This second appeal has been filed by the defendant against the judgment and decree of the Additional District Judge, Amritsar, 7-11-72.
2. The case has a chequered history, Briefly, the facts are that the plaintiff is a joint owner of the property in dispute in equal shares with the defendant. He filed a suit for possession of his one-half share by partition. It was contested by the defendant who controverted the allegations of the plaintiff. He inter alia pleaded that the land was purchased by him benami in the name of the plaintiff him. He further pleaded that the suit was not properly valued for the purposes of Court-fee and jurisdiction that he made construction on the property and that if he suit of the plaintiff was decreed, he was entitled to compensation for the same. On the pleadings of the parties, the following issues were framed :--
(1) Whether the site in dispute was purchased exclusively by the defendant and the name of the plaintiff appears in the sale-deed Benami ?
(2) In case the above issue is not proved then whether the plaintiff is not entitled to one-half share in the site in dispute ?
(3) What construction, if any, has the defendant raised on the site in dispute and of what amount and to what effect ?
The learned trial Court, vide its judgment dated 31st May, 1965, decided the issues in favour of the defendant and consequently dismissed the suit. The plaintiff went up in appeal before the Additional District Judge, Amritsar. At the time of arguments, the respondent raised a preliminary objection that the memorandum of appeal was not correctly valued for the purposes of Court-fee and jurisdiction. The learned Additional District Judge came to the conclusion that the matter in that regard had not been properly tried by the trial Court. Consequently, he accepted the appeal on 9-12-1966, and remanded the case to the trial Court for deciding the matter of court-fee and jurisdiction, after allowing the parties to lead evidence.
3. The trial Court, on 31st May, 1967, after going through the order of remand, held that the appellate Court had remanded the case with regard to court-fee and jurisdiction and it could not go into the merits. Therefore, the Court came to the conclusion that the value of the properly was RS. 4,000/- for the purpose of court-fee and jurisdiction. Consequently, it directed the plaintiff to make up the deficiency in the Court-fee. However, the plaintiff did not make up the deficiency as directed. Consequently, the Court rejected the plaint under O. 7, R. 11, Civil P. C. (hereinafter called the Code), vide its order dated 1st July, 1967. The plaintiff went up in appeal before who vide order dated 30-10-1969, remanded the case to the trial Court. The plaintiff then deposited the court-fee on 3-12-1969, as assessed by the Court. The plaintiff also made an application that the whole case be heard on merits and the Court vide its order dated 4th May, 1970, held that according to the remand order, the whole case was required to be decided by it. It then decreed the suit of the plaintiff on 24th July, 1970. The appeal by the defendant against the judgment and decree of the trial Court was affirmed by the Additional District Judge vide his order dated 7-11-1972. He has come up in second appeal to this Court.
4. It is submitted by the learned counsel for the appellant that the remand order dated 9-12-1966. Was not a legal order as the Court of the Additional District Court, on the objection of the respondent regarding court-fee, could not set aside the decree and remand the case. According to him the Additional District Judge could send for the report regarding the court-fee from the trial Court and thereafter decide the matter himself. He further submits that the aforesaid judgment was an interim judgment and can be challenged now in second appeal. In support of his contention, he places reliance on Kshitish Chandra Bose v. Commr. of Ranchi, AIR 1981 SC. 707.
5. The learned counsel for the respondent, on the other hand, has strenuously argued that the judgment D/- 9-12-1966, was not challenged by way of appeal and the judgment cannot now be challenged in this appeal which is against the judgment D/- 7-11-1972. He makes reference to Nainsingh v. Koonwarjee, AIR 1970 SC. 997.
6. I have given due consideration to the argument of the learned counsel. However, I agreed with the contention of Mr. Batta. It is not necessary to examine the matter minutely as the Supreme Court has settled this matter in Kshitish Chandra Bose's case (AIR 1981 SC. 707)(supra). In that case, the plaintiff had filed a suit for declaration that he had acquired title to the property in dispute by virtue of Hukamnama granted to him by the landlord. He also pleaded that he had acquired title by prescription. The trial Court decreed the plaintiff's suit both on the questions of title and adverse possession. The Additional Judicial Commissioner, Ranchi, the finding of the trial Court and upheld the decree on both the points. In second appeal by the defendant, the High Court held that the plaintiff had failed to show that he had obtained title by adverse possession. Consequently the case was remanded for decision on the question of title only. After the remand, the Additional Judicial Commissioner held that the defendant had proved its title to the land and consequently he dismissed the suit of the plaintiff. On appeal by the plaintiff, the High Court affirmed the judgment of the Additional Judge Commissioner and dismissed the appeal. The plaintiff, then went up in appeal before the Supreme Court. The counsel for the appellant challenged the first judgment of the High Court by which the case was remanded. An objection was taken by the respondent and, therefore, that could not be challenged. Fazal Ali, J., speaking for the Court, came to the conclusion that the first judgment of the High Court was an interlocutory judgment and could be challenged in appeal. The relevant observations of the learned Judge are as follows :--
'In this view of the matter we are of the opinion that it is open to the appellant to assail even the first judgment of the High Court and if we hold that this judgment was legally erroneous then all the subsequent proceedings namely, the order of remand, the order passed after remand, the appeal and the second judgment given by the High Court in appeal against the order of remand would become non est.'
Ultimately, the Supreme Court accepted the appeal and decreed the suit of the plaintiff. In Nainsingh's case (supra), the facts are distinguishable. In that case, the Supreme Court interpreted S. 105(2) of the Code. However, in the present case, that section is not applicable. Therefore, I am of the opinion that this Court can go into the legality of the judgment of the Addl. District Judge D/- 9-12-1966.
7. The next question that arises for determination is as to whether the order of remand was proper or not. The learned Additional District Judge remanded the case on the objection of the respondent that the appeal was not properly valued for the purposes of court-fee and jurisdiction. That matter could be decided by the learned Additional District Judge either himself or by sending for the report of the trial Court under O. 41, R. 25 of the Code. Unless he came to the conclusion that the judgment of the trial Court was liable to be set aside on merits, he could not accept the appeal and remand the case. Consequently, I am of the opinion that the order of the learned Additional District Judge is illegal. In the above view, I am fortified by the judgment of a Division Bench of Lahore High Court in Dr. Kishan Singh v. Bachan Singh, AIR 1942 Lah 201. Consequently, the proceedings subsequent to the judgment of the Additional District Judge would become non est.
8. At this stage, the learned counsel for the appellant has made a statement before me, and in my opinion very fairly, that because of prolonged litigation between the parties, the defendant-appellant will not press the objections regarding court-fee and jurisdiction before the first appellate Court.
9. In view of the above-said discussion, I accept the appeal, set aside the judgment and decree of the appellate and trial Courts 3/- 7-11-1972 and 24th July, 1970, respectively, and remand the case to the appellate Court Appeal No. 31 of 1965 shall be restored before the appellate Court in its original number and decided on merits. The parties are directed to appear before the District Judge, Amritsar, on 24th May, 1983. He shall decide the case himself or send it to the Court of competent jurisdiction. No order as to costs.
10. Appeal allowed.