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Sri Pedda Vikrama Deo Garu Vs. the Maharaja of Jeypore and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in36Ind.Cas.801
AppellantSri Pedda Vikrama Deo Garu
RespondentThe Maharaja of Jeypore and anr.
Cases Referred and Sri Sri Sri Vikramadeo Maharajulum Garu v. Sri Neladevi Pattamadhadevi Garu
Excerpt:
vizagapatam agency rules, rules 20, 31 - decree, order of remand by agent, whether amounts to--high court, power of to interfere in revision. - .....to disregard; and that definition would not cover the order before us. we, therefore, dismiss civil miscellaneous petition no. 2561 of 1915 and deal with civil miscellaneous petition no. 3762 of 1915.2. the suit is in ejectment plaintiff alleging that the property was originally granted to one viswambaradeo and that the grant was continued to his widow and is resumable. the special assistant agent held that nothing was proved as to the original grant or the origin of the defendants' possession. the agent however observing that it would appear that the property or the revenue from it was given to viswambara, referred to the points in issue as being only whether plaintiff was entitled to resume and on what terms the grant was made. he then remanded the case observing that the burden,.....
Judgment:
ORDER

1. We have before us an application under Rule 20, Agency Rules asking us to call on the Agent to review his judgment and a petition for the same relief forwarded to us by the Government under Rule 31. Mr. Sarma for the first respondent-plaintiff, however contends that the Agent's order, one passed in an appeal remanding the suit for disposal, is not liable to interference by this Court on either the application or petition. His argument is in effect that there are some orders of the Agent, this being one of them which are not subject to the powers of control which this Court can (with or without the invitation of Government) exercise We feel bound to hold in accordant with the view expressed in Maharaja of Jeypore v. Neladevi 13 M.L.J. 151, that Rule 31 must have been intended to provide for cases for which no previous provision had been made, including orders against which no appeal was allowed vide also Ohakrapani v. Varahal-amma 18 M.k 227, Maharaja of Jeypore v. Jammartdhora 24 M.k 345, and Sri Sri Sri Vikramadeo Maharajulum Garu v. Sri Neladevi Pattamadhadevi Garu 26 M.k 266, It is argued then that in the present case the remedy by appeal is open to 2nd defendant because he will be able if the Court of first instance decides against him at the remand hearing, to appeal to the Agent and then, if necessary, to this Court. But we cannot treat that as a remedy for the prejudice which the order of remand if erroneous, must cause. We have then considered whether we should deal with the application under Rule 20 or the petition under Rule 31. The former rule relates to the decrees passed by the Agent in appeal. But we do not think that we can treat this order_ of remand as a decree. For though the Code of Civil Procedure is not applicable the definition in it affords guidance which, in the absence of any other authoritative interpretation of the word, weare not prepared to disregard; and that definition would not cover the order before us. We, therefore, dismiss Civil Miscellaneous Petition No. 2561 of 1915 and deal with Civil Miscellaneous Petition No. 3762 of 1915.

2. The suit is in ejectment plaintiff alleging that the property was originally granted to one Viswambaradeo and that the grant was continued to his widow and is resumable. The Special Assistant Agent held that nothing was proved as to the original grant or the origin of the defendants' possession. The Agent however observing that it would appear that the property or the revenue from it was given to Viswambara, referred to the points in issue as being only whether plaintiff was entitled to resume and on what terms the grant was made. He then remanded the case observing that the burden, of proving the absolute gift alleged by the defendants was on them. His order of remand was clearly unjustifiable in the absence of any discussion of the evidence as to the plaintiff's original ownership and the grant to the defendants or their predecessors and any statement of his reasons for dissenting from the Special Assistant Agent's decision that neither plaintiff's possession nor any grant was proved Until a conclusion in favour of both had been reached the question whether the grant was as defendants alleged an absolute gift did not arise and they ought not to have been called on to discharge the burden of proof in connection with it. The Agent's order of remand is therefore set aside and he is directed to re-admit the appeal and deal with it in the light of the foregoing disposing of it only-after recording a definite finding on all the points involved in the first issue, including plaintiff's title and circumstances in which his possession terminated. We make no order as to costs in Civil Miscellaneous Petition No. 2561 of 1915. In Civil Miscellaneous Petition No. 3762 of 1915 the costs in this Court will abide the result and be provided for in Agent's decree.


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