SOORAJMAL MOTILAL MAHAJAN Vs. RAMA

JUDGEMENT

(1.) THIS appeal has been filed by the appellant against the judgment of a Single Judge of this Court in Second Appeal No. 167 of 1962 (decided on 30th March 1965) after leave having been granted by the learned Judge.

(2.) THE facts giving rise to this appeal are that in village Sandawata, tehsil Sarangpur, there was some agricultural land bearing Khata No. 128 and consisting of survey Nos. 797, 798 and 800 measuring 19 Bighas and 4 Biswas, and the appellant's father Motilal was the recorded tenant of these lands. These lands were situated in the erstwhile State of Narsinghgarh. The lands were given on Adh. Batai (sublease) to the deceased respondent Rama on 3rd October 1944. The appellant filed a suit on 6th May 1952 for possession of these lands on the ground that the sub-lease was terminated by a notice dated the 8th April 1950. This suit was decided on 13th December 1954. In pursuance of the decree passed in this suit, an execution was filed and on 21st may 1955 the possession of the suit lands were obtained by the appellant. The deceased respondent Rama preferred an appeal against the judgment of the trial Court, which was allowed on 7th February 1962. Against this, the appellant Surajmal preferred a second appeal in this Court, which was decided by the impugned judgment dated the 30th March 1965. The learned Single fudge held that the respondent being a Shikmi was entitled to the advantage of section 185 (1) (ii) (b) of the M. P. Land Revenue Code, 1959. Consequently the learned Judge dismissed the appeal. On a prayer from the appellant, the learned Judge felt that in view of the decision in Raghunathsingh v. Gangabai (I960 JLJ 998.) the question involved in the case is a substantial question of law and so he certified the case as a fit one for filing an appeal under the Letters patent. Consequently this Letters Patent Appeal has been filed.

(3.) AT the commencement of the hearing, Shri W. Y. Pande, learned counsel for the respondents, raised a preliminary objection. He contended that the suit was filed in the erstwhile State of Madhya Bharat, and that at the time when the suit was filed an appeal against the judgment of a Single judge was only permissible under the provisions contained in section 23 of the m. B. High Court of Judicature Act (No. 8 of 1949), and in view of section 52 f the States Reorganisation Act, 1956, the right of appeal available to the appellant could not be under the Letters Patent but would be under section 23 of the M. B. High Court of Judicature Act. According to the learned counsel, under the rules framed for an appeal under section 23 of the M. B. High Court of Judicature Act, a certificate ought to have been issued by the learned Single judge certifying the case as a fit one for appeal, but in the present case no such certificate has been filed along with the memorandum of appeal, the appeal cannot be entertained under section 23 of the M. B. High Court of judicature Act and it deserves to be thrown out on this short ground alone. In support of his contention, learned counsel relied on Radha Krishna Das v. Rai Krishna Chand (28 IA 182.), Moolji Jaitha and Co. v. K. S. W. Mills Co. (AIR 1950 FC 83.) and Radhakrishna v. Swaminatha (AIR 1921 PC 25. ). He also placed reliance on the decision in Amritlal v. State of Bombay (AIR 1965 Guj. 87. ).