MANGALIYA Vs. PANCHO

JUDGEMENT

(1.) One short, but important question of law has been raised for our decision in this matter. Whether a second appeal lies in respect of an order passed in a proceeding instituted under S. 275, Quanoon Mal (of erstwhile Gwalior State) ? That is extracted below.

(2.) Obviously, it is not necessary, therefore, to refer to all aspects of the long travail which parties have suffered during the course of long 20 years' life of this lis, but to the undisputed facts relevant to the controversy, a reference is still necessary. Hardeva, predecessor-in-interest of the petitioners, was recorded as a Pakka Krishak of land measuring 6 Bighas and 6 Biswas, in village Mohammadpur, Pargana and District Gwalior. He submitted an application in the Court of Tahsildar, Gird, for grant of permission to mortgage the land for Rs. 300/- in favour of one Sitaram, husband of non-petitioner No. 1 and the application was registered as Misc. Mal Case No. 13/69. On Hardeva's death during the pendency of the case, the petitioners, his sons, were brought on record and the permission prayed was granted. In his capacity as guardian of his brothers, petitioners No. 2 and 5, he executed on 1-3-40 a deed of usufructuary mortgage in Sitaram's favour for Rs. 300/- under which redemption period of 12 years was fixed for the mortgagee to deliver possession of the land to the petitioners without payment of mortgage-money. On the minor-petitioners' attaining majority, suit for redemption contemplated under S. 275, afore-extracted, was filed in the Tahsil Court at Gwalior and that was registered as 21/70-71/A/74. Copy of plaint of the suit is Annexure A of the petition. It refers inter alia to notice dated 28-9-1970, demanding possession, being served on non-petitioner No. l, prior to institution of the suit.

(3.) Other facts too, matters of record, having a bearing on the controversy, are succinctly stated. By an order passed on 9-9-1981, the Tahsildar disposed of the suit application allowing the prayer and directed the defendant/non-petitioner Mahila Pancho, widow of Sitaram, to remove her possession from the suit land within 20 days and put the plaintiffs/petitioners in possession of the land in question. An appeal was taken unsuccessfully against that order to the Sub Divisional Officer and against the order dated 25-11-1982, passed in that appeal, a second appeal was filed which was disposed of by the Additional Commissioner by the order dated 24-3-1983. The matter was remanded by him to Tahsildar with certain direction. His order was challenged, however, in Revision before the Board of Revenue and the Board, by its order dated 4-5-1983, after setting aside the order of the Additional Commissioner, directed him to decided the appeal on merits. Thereafter, the second appeal was reheard and disposed of by the Commissioner on 7-7-1983. Being dissatisfied with that order, non-petitioner. Pancho preferred revision to the Board in which the impugned order dated 22-9-1983 was passed. The Board has taken the view that the Additional Commissioner was wrong in setting aside the order of the Sub-Divisional Officer on the ground that the first appeal preferred before him was not competent because u/S. 275, afore-extracted, appeal lies to the Collector. Again, fresh direction was made to the Additional Commissioner for deciding the second appeal on merits.