BANDHU KUNJRA Vs. RAHMAN KUNJRA

JUDGEMENT

(1.) This appeal, filed by the plaintiff, has been referred to a Full Bench for decision. The point stated by the Divisional Bench in the order of reference will be clear after the facts have been narrated.

(2.) The plaintiff has instituted a suit, out of which this appeal has arisen, for declaration, of title to and for recovery of possession of certain lands, mentioned in the plaint, along with mesne profits. The right claimed by the plaintiff was that of an under-raiyat. It was alleged that 1.78 acres of land in village Bachiar was the raiyati Kasht lands of two brothers, named Durga Bhagat and Kishun Dayal Bhagat. Durga Bhagat had left four sons, and Jagarnath Bhagat was the only son of Kishun Dayal Bhagat. As a result of Title Partition Suit No. 9 of 1935, these lands had fallen to the share of Jagarnath Bhagat. It was contended that the plaintiff was inducted as an under-raiyat of the disputed lands by Durga Bhagat, on an annual rent of Rs. 100. Having remained in possession for more than twelve years, the plaintiff contended that he had acquired right of occupancy in the disputed land. It was alleged that the defendants first party had purported to purchase the disputed lands from Jagarnath Bhagat, knowing fully that the plaintiff was in occupation as an under-raiyat. It was alleged, further, that the defendants first party had purported to have executed a farzi rehan deed in favour of defendants second party, only to establish their claim under their sale deeds. There was a proceeding under Section 144 of the Code of Criminal Procedure which had terminated in favour of the defendants on the 30th March, 1947, when the plaintiff was dispossessed from the disputed lands. Hence, this suit had to be instituted. According to the defendants, after the survey, the under-raiyats in possession were removed and Durga Bhagat as karta of his family came in possession of the disputed lands, After his death, Kishun Dayal became the karta. As a result of the title partition suit, mentioned above, these lands fell to the share of Jagarnath Bhagat alone and soon thereafter, defendant No. 1 approached him to let out the lands to him in Batai settlement. Defendants first party were let in possession as Bataidars and on the 21st October 1946, defendants Nos. 1 and 2, purchased the lands by two sale deeds. The defendants supported the usufructuary mortgage to defendants second party and all other allegations to the contrary made by the plaintiff were denied. According to the defendants, the plaintiff was never in possession and the suit was fit to be dismissed.

(3.) That suit was dismissed by the trial Court by judgment and decree dated the 28th February, 1950. After two stages in the matter to which it is not necessary to refer in detail, the suit was decreed by the court of appeal below by its judgment and decree dated the 25th March, 1955. The defendants, thereupon, came to this Court in Second Appeal No. 629 of 1955. On hearing the parties, Sahai, J., by judgment dated the 20th August, 1958, allowed the appeal, set aside the decree of the Court of appeal below and remanded the case to that Court for reconsideration. It was ordered that the court of appeal below should decide the appeal afresh in accordance with law, keeping in view the observations made by this Court. Thereafter, the appeal has been decided by the court of appeal below afresh and the appellate decree has affirmed the decree of the trial Court, with the result that the plaintiff's suit stands dismissed. The plaintiff has, thus, come up to this Court. The case was at first placed for hearing before a learned Single Judge of this Court, and by order dated the 3rd November, 1960, the appeal was referred to a Division Bench for hearing. Presumably, it was done on the supplementary grounds filed by the appellant on that very day. Ground No. 1 of the supplementary grounds urged that Sahai, J., had no jurisdiction to interfere with the findings of fact arrived at by the Court of appeal below prior to the remand, and therefore, the judgment of the Court of appeal below, delivered after remand, must be set aside. According to this ground, further, the order of remand passed by this Court was void and had no existence in the eye of law, and therefore the judgment of the Court of appeal below, in pursuance of the remand order, is vitiated. It is substantially upon this ground that the Division Bench, before which the appeal was placed for hearing, made the order of reference to the Full Bench. It has been stated in the order of reference dated the 22nd August, 1963, that, one of the most important points that arise for consideration is whether an appeal lay under the Letters Patent of this Court against an order of remand passed under Section 151 of the Code of Civil Procedure by a Single Judge. After referring to the decisions of Munshi Lal v. Mohanth Ramasis Puri, reported in AIR 1922 Pat 384, Baawari Lal v. Shukrullah, reported in AIR 1933 Pat 139, and Brajo Gopal v. Amar Chandra, reported in AIR 1929 Cal 214 (FB) the order of reference has stated that except the case reported in AIR 1922 Pat 384, which was a case before the amendment of Clause 10 of the Letters Patent of this Court, there is no other decision on the point as to whether the untrammelled right of appeal having been conditioned under the amended Clause 10, it could be said that an aggrieved party has a right of appeal under the Letters Patent, so that he cannot challenge the correctness of a remand order in an appeal filed against the decree passed after remand.