RAM NARAIN SAHU Vs. MTMAKHNA

JUDGEMENT

(1.) A preliminary objection has been taken by the learned advocate for the opposite party that no revision lies, having regard to the provisions of Section 253, Agra Tenancy Act (3 of 1926). The facts which bear on the arguments addressed to me on the preliminary objection are briefly as follows:

(2.) Mt. Makhna, the opposite party, instituted a suit for profits in the revenue Court against the defendant applicant in respect of a certain zamindari share. Her proprietary right to that share was denied by the defendant. Acting under Section 271, Agra Tenancy Act (3 of 1926), the revenue Court made a reference to the civil court for a finding on the issue thus raised on the question of proprietary right. The defendant applicant had, in the meantime, instituted in the civil court, a declaratory suit in which the same question was raised. The civil court decided the common issue raised before the revenue Court and before itself in a consolidated proceeding which resulted in the dismissal of the suit brought by the defendant applicant and a finding in favour of the proprietary right set up by Mt. Makhna in the suit for profits pending in the revenue Court. On receipt of such finding, the revenue Court proceeded to decide the question of proprietary right arising in the suit for profits in terms of the finding returned by the civil court; but the defendant applied for stay of the suit for profits on the ground that he had preferred an appeal to this Court from the. decree passed in the title suit brought by himself in the civil court. The application was founded on Secs.10 and 151, Civil P.C. The revenue Court refused to stay further proceedings in the suit for profits. The present revision was then filed. It should be mentioned that, having regard to the value of the subject matter-of the suit pending in the revenue Court, no appeal can lie direct to this court but to the District Judge.

(3.) It is common ground that the revisional jurisdiction of this court has to be determined with reference to Section 253, Agra Tenancy Act (3 of 1926), and not Section 115, Civil P.C. The question is whether in the circumstances already stated, Section 253, Agra Tenancy Act (3 of 1926), bars the jurisdiction of this Court to entertain a revision from the order of the Assistant Collector refusing to stay the suit for profits pending before him. That section runs as follows: The High Court may call for the record of any suit or application which has been decided by any subordinate revenue Court and in which an appeal lies to the District Judge and in which no appeal lies to the High Court, and if such subordinate revenue Court appears : (a) to have exercised a jurisdiction not vested in it by law or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity the High Court may pass such order in the case as it thinks fit.