KAMESHWAR SINGH Vs. RAM PRASAD SHARMA

JUDGEMENT

(1.) These two applications in revision arise out of an order of the learned Subordinate Judge of Monghyr, dated the 6th of January, 1951, in two miscellaneous cases, namely. Miscellaneous Case No. 41 and Miscellaneous Case No. 42 of 1950, before the learned Subordinate Judge.

(2.) The relevant facts are the following: The petitioner before us is the Maharajadhiraj of Darbhanga. The petitioner was the proprietor of a village called Rasulpur Makdum in the district of Monghyr. There is an adjoining diara village called Pundarak in the district of Patna, of which the State of Bihar, opposite party No. 3 before us, is the proprietor. The opposite parties classed together as the first party were lessees of Diara Pundarak, and the opposite parties classed together as the 3rd party were tenants of the Khas Mahal in respect of the lands in question. In 1928 there was a dispute about 125 bighas of land as to whether they lay in the petitioner's village Rasulpur or in village Pundarak. The dispute resulted in a proceeding under Section 145, Code of Criminal Procedure. That proceeding terminated against the present petitioner. Soon after there was another dispute regarding a block of 675 bighas of land. There was a proceeding under Section 144, Code of Criminal Procedure, which was decided against the petitioner. In 1934 the petitioner brought a suit for about 800 bighas of land, being Title Suit No. 24 of 1934 in the court of the Subordinate Judge of Monghyr. The suit was primarily one for a declaration of title and recovery of possession: there was also a claim for mesne profits, the nature and details whereof have given rise to some controversy. I shall later deal with that aspect of the matter. The present opposite parties were defendants in the suit, the lessees and tenants being defendants 2nd and 3rd parties and the defendant 1st party was the then Secretary of State for India in Council through the Collector of Monghyr. The suit, it appears, was contested by the Secretary of State alone. On the 28th of May, 1940, there was a compromise and the suit was decreed on compromise against the Secretary of State for India and ex parte against the other defendants. Paragraph 3 of the compromise petition stated:

(3.) It is against this order of the learned Subordinate Judge that the two applications in revision are directed. Mr. B. C. De, appearing for the petitioner, has urged two substantial points: firstly, he has contended that the learned Subordinate Judge acted in excess of his jurisdiction in vacating the decree for mesne profits inasmuch as neither Section 151 nor Section 152, Code of Civil Procedure, gave the learned Subordinate Judge a jurisdiction to sit in appeal over the decision of his predecessor and set aside a decree passed by a court of competent jurisdiction except in accordance with law; secondly, he contended that the learned Subordinate Judge was wrong even on merits, in thinking that the decree for mesne profits was erroneous or inequitable.