TAPESAR RAUT Vs. RAM JATAN

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiffs alleged that by two sale deeds dated the 5th November, 1947, they had purchased plot No. 2743 of Khata No. 165 of village Dhorlahi from the recorded tenant Dharichhan Singh, defendant No. 5. The plaintiffs further alleged that the defendants first party interfered with their possession and so they brought the present suit for a declaration of their title and for recovery of possession. The suit was contested by the defendants first party on the ground that the disputed land was in their possession as Shikmidars from Baisakh 1332 Fasli and that they had taken shikmi settlement from the recorded tenant, defendant No. 5. Upon these rival contentions the trial court held that the sale deeds upon which the plaintiffs relied conveyed no title and the trial court further held that the defendants first party were in possession of the land as Shikmidars from 1332 Fasli. The plaintiffs took the matter in appeal, and the subordinate judge who heard the appeal held, in the first place, that the sale deeds upon which the plaintiffs relied were genuine and for consideration. He further held that the defendants first party had failed to prove that the land in suit was in their possession continuously for a period of twelve years as shikmidars. On these findings the subordinate judge held that the plaintiffs were entitled to a decree in the terms they had asked for in the plaint. The defendants came up in second appeal to the High Court. It was argued in the second appeal that the suit was governed by Article 142 of the Limitation Act and not by Article 144 of the Limitation Act. The argument was accepted by Sahai, J. who set aside the decree and judgment of the lower appellate court and remanded the case to the lower appellate court for a finding as to whether the plaintiffs or their vendor had succeeded in establishing that they were in possession of the disputed land at any time within twelve years of the suit. It was also directed by the learned judge that if it was found that the plaintiffs or their vendor had failed to establish their possession within twelve years of the suit then the suit must be dismissed so far as their prayer for Khas possession was concerned.

(2.) Against the judgment of Sahai, J. the plaintiffs have brought this appeal under Clause 10 of the Letters Patent.

(3.) On behalf of the respondents a preliminary objection is raised that the appeal is not competent under Clause 10 of the Letters Patent of the Patna High Court. It was submitted that the judgment of the learned single Judge only remanded, the case to the lower appellate court for hearing on merits and the order of remand cannot be said to constitute a judgment within the meaning of Clause 10 of the Letters Patent which is to the following effect: "10. And we do further ordain that an appeal shall lie to the said High court of Judicature at Patna from the Judgment not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court, and not being an order made in the exercise of re-visional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court. Pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court pursuant to Section 108 of the Government of India Act, made on or after the first day of February one thousand nine hundred and twenty nine, in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal, but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or successors in our or Their Privy Council, as hereinafter provided.'' We are unable to accept the argument put forward by the learned Government Advocate as correct. In the present case the learned Single Judge has in second appeal set aside the decision of the lower appellate court granting a decree to the plaintiffs for recovery of possession of the disputed land from the defendants. After setting aside the decree of the lower appellate court the learned Single Judge has remanded the case for a fresh hearing to the lower appellate court in accordance with the principle laid down in his judgment. In these circumstances we think that the judgment of Sahai, J. allowing the second appeal and remanding the case for re-hearing is a judgment within the meaning of Clause 10 of the Letters Patent, and it follows, therefore, that the present appeal under that clause of the Letters Patent is competent. The view we have expressed is borne out by a decision of a division Bench of this High Court in Ajit Chaudhuri v. Janak Lal, AIR 1924 Pat 336. It was pointed out by Dawson-Miller, C. J. in that case that if a judge of the High court without setting aside the decision of the lower Appellate court merely remands the case for the finding of an issue with directions to return that finding before finally disposing of the appeal, then that is not a judgment within the meaning of the Letters Patent, but where the judge sets aside the decision of the lower appellate court and orders a retrial by that court, that decision amounts to a judgment within the meaning of Clause 10 of the Letters Patent, and in such cases an appeal is permissible from that decision. In our opinion the ratio decidendi of this case governs the present case and we hold that the appeal of the plaintiffs under Clause 10 of the Letters Patent in the present case is maintainable.