NARAYAN NAGAPPA HEGDE Vs. SHANKAR NARASIMHA BHATTA

JUDGEMENT

(1.) The question of law that has been raised by the learned counsel for the respondent in this revision petition relate to the competence of this court to entertain this petition under S. 115 of the Code of Civil Procedure to revise the order passed by the Assistant Commissioner under S. 23(2) of the Mamlatdars' Courts Act, 1906

(2.) The Petitioner commenced the suit which has given rise to this revision petition, by filing a plaint on 18-5-1959 under S. 7 of the Mamlatdars' Courts Act, 1906(hereinafter called the Act) in the court of the Mamlatdar (now called the Tahsildar) at Yellapur, praying for the issue of an injunction restraining the respondent from causing disturbance to his peaceful possession and enjoyment of Survey No. 5 of Kodlagadde village. He contended that he had been in possession of the land in spite of the potmulgeri lease that he had executed in favour of the respondent since the Tahsildar declined to certify the sub-leas as being in contravention of the provisions of the Bombay Tenancy and Agricultural Lands Act, and he never delivered possession in pursuance of that document. The respondent however, contended that he had been put in possession and had been cultivating the land himself since the date of his lease. After recording evidence of both the parties the Tahsildar held in favour of the petitioner and issued an order of injunction; against that order the respondent approached the Assistant Commissioner who set aside the order and remanded the case back to the Tahsildar for disposal. On enquiry, the Tahsildar decreed the suit on 3-8-1962 and issued an order of injunction against the respondent restraining him from causing any disturbance in the peaceful possession and enjoyment of the land by the petitioner. The respondent preferred revision petition No.JNC-SR-III/9 before the Assistant Commissioner, Sirsi Division who allowed his petition and dismissed the suit, holding that it was the respondent who was in possession of the land since the date of the sub-lease. It is the legality of this order that has been impugned in the present revision petition.

(3.) Mr. Datar the learned counsel for the petitioner submitted that the Assistant Commissioner had no jurisdiction to interfere with a finding of fact under S. 23(2) of the Act and that the order dismissing his client's suit was without jurisdiction. Mr. Krishnaswami Rao the learned counsel for the respondent tried to justify the order of the Assistant Commissioner on the ground that the Tahsildar had failed to consider the entire evidence in the case and that the Assistant Commissioner had jurisdiction to interfere with the order. He further raised a preliminary objection as to the competency of this Court to entertain the revision petition under S. 115 of the Code of Civil Procedure.