PANDOHI Vs. SHEO BHAROS

JUDGEMENT

(1.) This is a suit arising out of proceedings taken in the Revenue Court by the respondents for the ejectment of the appellant as their shikmi (sub-tenants). The appellants resisted the suit on the ground that they were not the shihmi or sub- tenants of the land but the tenants of the zemindars. The Revenue Court found against them and gave a decree for ejectment. Sheo Bharos and others then brought a suit for declaration that they were occupancy-tenants of the land and that the defendants had no concern or connection with it. The claim originally was dismissed as barred by the rule of res judicata. The case came up before this Court in appeal as Sheo Bharose V. Pandohi Ahir 18 Ind. Cas. 220 before the Hon ble Mr. Justice Chamier who, on January 17th, 1913, held following certain rulings of this Court that the matter in controversy was not res judicata and remanded the case to the lower Appellate Court for disposal on the merits. The case had been disposed of originally by the District Judge of Jaunpur and under this order the case went back against his file for disposal. The record was received in the Court below on March 8th, 1912, and on March 31st 1912, Mr. Marshall, the District Judge of Jaunpur, made an order transferring the case to the Subordinate Judge of Jaunpur for disposal. On the day following, i e., on April 1st, 1913, the Greeven Scheme came into force. The Office of the District Judge of Jaunpur ceased to exist. Jaunpur became part of the Benares District and Mr. Mehta was appointed Sessions and Subordinate Judge of Jaunpur. The case came up before him for hearing and he has held in favour of the plaintiffs and decreed the appeal. This appeal has been filed by the defendants. So far as the main question of fact raised in this case is concerned, the findings of fact conclude the appeal. Mr. Mehta has found that the appellants were the occupancy-tenants of the land and he has decreed the plaintiffs claim. In second appeal I am bound to accept the finding of fact and to act upon it.

(2.) But Mr. Hamilton has raised a further point that Mr. Marshall, District Judge of Jaunpur, had no power to transfer the case to the Subordinate Judge. The order of remand made by this Court made it necessary for him to hear and dispose of the case himself and that the case ought to have been heard and disposed of by the District Judge now sitting at Benares who is the District Judge of Benares and Jaunpur. In support of this contention he relied upon a ruling of this Court reported in Sita Ram v. Nauni Dulaiya 21 A. 230 : A.W.N. (1899) 38 and certain other cases reported as Ramcharittar Ray v. Bidhata Bay 10 C.W.N. 902, Sakharam v. Gangaram 13 B. 654, Amir Begam v. Prahlad Das 24 A. 304 : A.W.N. (1902) 66, Ndndan Prasad v. W.C. Kenney 24 A. 356 : A.W.N. (1902) 92. He also relied upon a case reported as Lahore Bank, Ltd. v. Lakhi Ram 19 Ind. Cas. 970 : 242 P.L.R. 1913 : 105 P.R. 1913 : 215 P.W.R. 1913. The last case is not quite in point as the order of remand in that case was made under Rule 25 of Order XLI. The other cases would support the contention but for-the change of law which has taken place under the new Code. Under Section 22 of the Bengal Civil Courts Act of 1887 the Court of the Subordinate Judge is a Court under the administrative control of the District Judge and the latter is authorized to transfer any appeal pending before him from decrees or orders of Munsifs to the Subordinate Judge for disposal. The Court of the District Judge is competent as also that of the Subordinate Judge on such transfer to hear such an appeal. Under Section 24 of the Code of Civil Procedure of 1908, the District Court may at any stage transfer any suit, appeal or other proceeding pending before it for a trial for disposal to any Court subordinate to it and competent to try it. Under this section, therefore, the District Judge was perfectly competent to transfer the case. The question was recently considered by the Calcutta High Court in the case of Protap Chandra Boy v. Judhiser Das 23 Ind. Cas. 69 : 19 C.L.J. 408. Mr. Justice Mookerjee observes as followes: "The order of remand made by this Court is capable of one of two interpretations, neither of which is of any assistance to the defendant-appellant. In the first place, if the order be interpreted to mean that it was the intention of this Court that the suit should go back to the District Judge with liberty to make such order as he was competent to pass under the law, it is plain that under Section 24 of the Code of 1903 the District Judge could re-transfer the suit to the file of the Subordinate Judge. The terms of Section 24 are comprehensive enough to cover a case of this description, inasmuch as it provides that the District Court may, at any stage, transfer any suit pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or to withdraw any suit pending in any Court subordinate to it and try or dispose of the same, or transfer the same for trial or disposal to any Subordinate Court competent to try or dispose of the same or re-transfer the same for trial or disposal to the Court from which it was withdrawn. An order of this description could be made at any stage and it was immaterial in this case that the suit had to be tried on the evidence recorded by the District Judge who heard the case in the first instance."

(3.) In another case which came up before the Madras High Court recently the same point arose before a Bench presided over by Justices Sadasiva Iyer and Spencer. The case is reported in Singamusetti Venkatiah v. Beppella Chirranna 23 Ind. Cas. 425 : 15 M.L.T. 304 : (1914) M.W.N. 317. At page 318 their Lordships dispose of this contention as follows: The contention most strongly pressed by the appellants learned Counsel was that the Subordinate Judge who heard the appeal had no jurisdiction to hear it as the High Court remanded the appeal for hearing by the District Court and the District Court had no power to transfer such a re- manded appeal for disposal to the Subordinate Judge. We might here state that the appellants raised no objection either before the District Court or before the Subordinate Judge s Court to the validity of the order of transfer. Under those circumstances we hold on the authority of the case in Gurdeo Singh v. Chandrikah Singh and Chandika Singh v. Rash Behary Singh 1 Ind. Cas. 913 : 36 C. 193 at p. 201 : 5 C.L.J. 611 that the Subordinate Judge s inherent jurisdiction was (putting it at the worst) merely exercised irregularly and that the irregularity has not affected the merits (section 99, Civil Procedure Code). We might add that considering the more comprehensive language of Section 21 of the new Civil Procedure Code (corresponding to Section 25 of the old Code) the District Court s powers of transfer are much wider than under the old law. We refer to the addition of the words at any stage and of the words appeal or other proceeding in the new Code, as well as the new Clause (1) (b) (iii) and the new Clause (2).