JATHALI BHUL Vs. NADIA

JUDGEMENT

(1.) This is a plaintiff's application in revision from an order of the District Judge of Kumaun. A suit was filed by the plaintiff in the Court of the Small Cause Court Judge, who had the jurisdiction of an Additional Assistant Collector in revenue cases also. The suit was for possession of a house and a court yard attached thereto standing on a plot of land which was alleged to be the plaintiff's holding. The plaintiff suggested that five years before the suit he was in joint possession with the defendant, but when a separation took place the defendant did not give him possession of the same. The defendant's case was that the house had been built by his ancestors and had been in the possession of his family for generations.

(2.) On the pleadings the first Court framed an issue whether the suit was cognizable by the civil Court or not. It came to the conclusion that it was cognizable by the civil Court, and recorded a finding to that effect. The Court imagined that the finding would be appealable, and accordingly stayed proceedings pending the filing of the appeal. The defendant appealed to the District Judge, who entertained the appeal and came to the conclusion that the suit was not triable by the civil Court, and sent the record back to the first Court with directions to proceed according to law, which implied that the plaint should be returned for presentation to the proper Court.

(3.) There is no doubt that the first Court treated the suit as having been filed on the civil side, and the District Judge treated the appeal before him as an appeal from an order recording a finding on the question of jurisdiction.