TEJA Vs. NAHARMAL

JUDGEMENT

(1.) This in an appeal against an order of the Additional Commissioner, Udaipur, dated 8.6.1955,whereby the decree of the trial court in a suit for recovery of possession was reversed and the case was remanded for further trial.

(2.) A preliminary objection was raised as to the maintainability of this appeal on the ground that the order of remand passed by the lower appellate court being under sec. 151 C.P.C. in the exercise of its inherent powers and not under sec 41 Rules 23 C.P.C., no appeal lay against the same. The learned counsel for the appellant has met this objection with the argument that the scheme of appeals envisaged in the Rajasthan Tenancy Act, 1955, allows the appeal. Sec. 225(1)(iii) lays down that an appeal shall lie from an order to the Board if such order is passed by a Commissioner. It is true that order 43 rule 1 does not provide for an appeal against an order of remand not falling under order 41 rule 23. But sec. 208 of the Tenancy Act makes it clear that the provisions of Civil Procedure Code shall apply to all suits and proceedings under the Act, excepting provisions inconsistent with anything in this Act, for as inconsistency extends. In accordance with the provisions of appeal as contained in the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, every order was appealable and a second appeal against appellate orders was also provided therein. In the Rajasthan Tenancy Act,1955, all orders have been made appealable but no second appeals have been provided against them. For these reasons we overrule the objection raised by the respondents counsel.

(3.) Coming to the merits of the case we are clearly of the opinion that the order of remand is clearly unjustifiable. The learned Additional Commissioner appears to have misconstrued the real nature of the suit. The plaintiff based dis claim on the ground of possession and subsequent wrongful dispossession. The defendant resisted this claim on the plea that the plaintiff himself voluntarily surrendered the land and as a result thereof the defendant was put in possession. The trial court came to the conclusion that the plaintiff had failed to establish the alleged wrongful dispossession. The consideration as to whether the sale deed in favour of the defendant was valid or not is not at all material for purposes of the present suit. The defendant has not come forward to enforce his claim on the basis of that sale deed. It has been referred to by him to clarify the nature of his possession which according to the plaintiff was ab initio wrongful. The lower appellate court should, therefore, have, instead of remanding the case, applied its mind to the examination of the evidence on record and decided the appeal on merits. We would, therefore, allow this appeal, set aside the order of the lower appellate court and remand the case back to it with the direction that the appeal filed before it be heard and determined on merits in accordance with law.