WEST JAMURIA COAL CO Vs. BHOLANATH ROY

JUDGEMENT

(1.) The petitioner, a company, is the defendant in a suit and prays for leave to appeal to the Supreme Court against an order of this Court, passed in second appeal, by which the case was remanded to the Court of appeal below for disposal in accordance with certain directions given. It claims that the order is a final order and accordingly it is entitled to appeal as of right-under Clause (a) of Article 133 (1) of the Constitution. Alternatively it claims that the case comes under Clause (c) and a certificate that it is a fit case for appeal ought to be granted. The argument advanced on the petitioner's behalf has raised certain fundamental questions as to the true scope of Article 133 and its relation to Sections 109 and 110, Civil P. C., as adapted to the Constitution.

(2.) The suit concerned was brought by the opposite-parties as owners of a certain Touzi which had been created on the resumption of certain lands, previously held under an invalid: lakheraj grant. They claimed damages from the petitioner on the allegation that it had wrongfully extracted a part of the coal underlying five plots of land comprised in the touzi and caused damage to other coal. The petitioner is the lessee of other lands of the mouza where the said five plots are situated under a different proprietor and it has been working a colliery underneath the lands for a great many years. Its defence was that the plaintiffs had no right to the coal underneath the five plots and that even if they had a right, it had been extinguished by adverse possession of the sub-soil and that the suit, as a suit for damages, was barred by limitation. In the course of the trial, the opposite-parties conceded that they had no case with regard to three of the plots. As regards the remaining two plots, the trial Court held that the plaintiffs, though owners of the touzi lands settled with them on resumption had no title to the underground coal and that their title, if any, had been extinguished by adverse possession, it held fur-ther that the suit was time-barred. On appeal, the lower appellate court held in favour of the plaintiffs on the question of title but maintained the dismissal of the suit on the grounds of adverse possession and limitation in regard to which it agreed with the trial court. On second appeal, a Division Bench of this Court (Das Gupta and Guha Ray, JJ.) agreed with the lower appellate court on the question of title, but reversed its finding on the question of adverse possession and, in the view that the question of limitation had not been properly decid-ed, remanded the case to the lower appellate court for disposal after coming to a proper deci-sion on that question. The orders of the courts below were set aside. "If", their Lordships direct-ed, "the suit is not barrsd by limitation, the plain- tiffs' suit should be decreed for such damages as may be found admissible in law. If the suit is barred by limitation, the plaintiffs' suit must be dismissed". The formal order drawn up on the judgment was an order of remand.

(3.) The order of this Court, it is obvious, did not affirm the decision of the court immediately below. If the subject matter of the dispute be of the requisite value, the petitioner is entitled to a certificate under Clause (a) of Article 133(1) as of right, provided the order sought to be appealed from is a "judgment, decree or final order" within the meaning of that Article.