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Dibba Balesu Vs. Lagudu Chinna Sanyasayya and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1933Mad695; 145Ind.Cas.941; (1933)65MLJ383
AppellantDibba Balesu
RespondentLagudu Chinna Sanyasayya and anr.
Excerpt:
.....lies to the high court by the person who is ejected from the..........(1), the agent or any other prescribed officer may, on application by any one interested, decree ejectment against any person in possession of the property claiming under the transfer and may restore it to the transferor or his heirs [section 4(2)]. an application under section 4(2) for such ejectment was made before the special assistant agent, narasapatam, by the appellant. the assistant agent found that he was not a person interested and dismissed the application. he put in an appeal to the agent, and the order was confirmed. this second appeal has been filed to the high court. a preliminary objection was taken by the office as to the maintainability of the appeal, and it was ultimately admitted subject to the matter being left open to discussion when the appeal came on for.....
Judgment:

Pakenham Walsh, J.

1. Under Section 4(1) of the Agency Tracts Interest and Land Transfer Act (I of 1917) any transfer of immovable property situated within the Agency Tracts by a member of a hill tribe shall be absolutely null and void unless made in favour of another member of a hill tribe, or with the previous consent in writing of the Agent or any other prescribed officer. Where a transfer of property is made in contravention of Sub-section (1), the Agent or any other prescribed officer may, on application by any one interested, decree ejectment against any person in possession of the property claiming under the transfer and may restore it to the transferor or his heirs [Section 4(2)]. An application under Section 4(2) for such ejectment was made before the Special Assistant Agent, Narasapatam, by the appellant. The Assistant Agent found that he was not a person interested and dismissed the application. He put in an appeal to the Agent, and the order was confirmed. This second appeal has been filed to the High Court. A preliminary objection was taken by the Office as to the maintainability of the appeal, and it was ultimately admitted subject to the matter being left open to discussion when the appeal came on for hearing.

2. This preliminary objection that no second appeal to the High Court lies, is based on the fact that Section 4(3) states:

Subject to such conditions as may be prescribed, an appeal against a decree or order under Sub-section (2), if made by the Agent, shall lie to the Governor in Council, and, if made by any other officers, shall lie to the Assistant Agent or to the Agent as may be prescribed.

3. Rule 4, framed under the Act, which deals with appeals from ejectment orders, expressly says that no second appeal lies. For the appellant it is argued that the prohibition contained in Rule 4 applies only to orders of ejectment passed under Section 4(2) of the Act but not to orders refusing ejectment, that an order refusing the application is a decree and therefore a second appeal to the High Court under Rule 48 of the Agency Rules lies. The interpretation clause in the Rule says that 'decree' shall include orders passed under Rules 39(1) and 43(3) but not orders under Rules 33 and 35. Rules 39(1) and 43(3) are not in question in the present case. Turning to the definition of 'decree' in Section 2 of the Code of Civil Procedure, it is stated to be 'the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final'. Therefore, to be a decree within this definition, the determination must be made by a Court, must conclusively determine the rights of the parties with regard to all or any of the matters in controversy and must be in a suit. There is in my opinion nothing to show that an application under Section 4 of Act I of 1917 is a suit. Under the Code of Civil Procedure decrees are appealable: first appeals lie under Section 96 and second appeals under Section 100. Certain orders are also made appealable by Section 104(1) and by Section 47 orders in execution between the parties are to be deemed decrees for purposes of appeal. Thus it will be seen that unless there is a decree, there is no second appeal under the Code of Civil Procedure. No doubt Section 4(2) of Act I of 1917 talks about the Court 'decreeing ejectment against any person' and Section 4(3) of an appeal 'against a decree or order under Sub-section (2)'; but if we adopt the appellant's reasoning that there is a difference in procedure, namely, that, if the order is one dismissing the application for ejectment, a second appeal lies to the High Court but does not lie from an order granting the application, then we might equally introduce the same distinction into the words and say that it is only an ejectment order which is a decree and hence the words 'decreeing' and 'decree' will not avail to bring an order refusing the application under the definition of a 'decree'. It would certainly be anomalous that there should be a second appeal to the High Court by the unsuccessful applicant but that no second appeal lies to the High Court by the person who is ejected from the property. In my opinion the application is not a suit and the order refusing it is not a decree. Therefore I must dismiss the appeal as I hold it does not lie. The respondents will have their costs.


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