BHURA Vs. PREM SINGH

JUDGEMENT

(1.) This is an appeal against an order of the Commissioner, Ajmer dated 31.10.60, whereby the appellants appeal was dismissed in default.

(2.) The facts of the case are these. The appellant was defendant in the suit giving rise to this appeal wherein the plaintiffs had sued him for trespass and had prayed for his ejectment with damages. The trial Court decreed the suit for ejectment, but the claim for damages was rejected. From this order both parties appealed, the plaintiffs seeking the decree for damages as well and the defendants praying for the setting aside the decree of ejectment against them. The learned Commissioner, Ajmer heard both the appeals together and disposed of them both by a single judgment pronounced on 31.10.60. The plaintiffs are no longer interested in pursuing their claim for damages and have rested content with the order of the learned Commissioner, but the defendant Bhoora has come up before us against the aforesaid order dated 31.10.60.

(3.) The learned counsel for the respondents has taken a preliminary objection with regard to the maintainability of the appeal before us. He contends that the order of the learned Commissioner can be deemed to have been passed either under sub -sec.(2) of sec. 235 of the Rajasthan Tenancy Act or under the provisions of rule 17 of Order 41 C.P.C. and in both the cases the order would not be appealable. We find no force in this contention. As regards the suggestion that the Order was passed under sub -sec. 2 of sec. 235 of Rajasthan Tenancy Act, we can say without hesitation that it is factually wrong. The suit was admittedly one for ejectment of the trespassers and the trial Courts decision was clearly a decree. A first appeal from decree comes up to the Commissioner under sec. 224 of the Rajasthan Tenancy Act and not under sub -sec. (2) of sec. 225 of that Act. Therefore the learned Commissioner was sitting under sec. 224 of the Rajasthan Tenancy Act and the bar of sub -sec. (2) of sec. 225 of the Rajasthan Tenancy Act is not at all applicable or operation in this case. Taking up the alternative contention of the learned counsel that impugned order is one falling under Rule 17 of order 41, even if we assume it in his favour, the order if not appealable would be revisable. Thus even in this case our jurisdiction to test the decision with regard to its legality would still be there. For these reasons we overrule the preliminary objection without expressing any firm opinion at this stage as to under which provision of law the impugned order was made and pass on to consider its merits.