AMARSANGJI DUNGARJI JHALA Vs. DEEPSANGJI RAVABHAI JHALA

JUDGEMENT

(1.) The plaintiffs sued for a declaration that the decision in the Suit No. 2 of 1913 before the Talukdari Settlement Officer, in appeal No. 541 of 1916 of the District Court and second appeal No. 919 of 1919 in the High Court, was without jurisdiction, null and void, and not binding on the plaintiffs-That the plaintiffs owned one-thirty-sixths in Tajabhai Surasanji's property in Jalia village and that they were entitled to have the shares separated. The defendants pleaded that the suit was barred on the principle of res judicata owing to the proceedings before the Talukdari Settlement Officer. The trial Court held that the plaintiffs suit was barred by res judicata and dismissed it. On appeal the First Class Subordinate Judge with appellate powers reversed the decision of the trial Court on the issue of res judicata and sent the suit back for trial on the remaining issues.

(2.) Defendants Nos. 1 to 12 have appealed to the High Court. Defendants Nos. 1 to 12 made an application No. 2 of 1913 to the Talukdari Settlement Officer under Section 11 of the Gujarat Talukdars Act, for partition and separate possession of their shares in the village of Jalia, a Talukdari village, as recorded in the settlement register prepared under Section -5 of the Act, The present plaintiff and others disputed their title to the share claimed by them-The Talukdari Settlement Officer held the applicants to be entitled to the share specified in the settlement register as claimed by them. On appeal to the District Judge, under Section 16 of the Act, the decision of the Talukdari Settlement Officer was confirmed. A second appeal No. 919 of 1919 was filed in the High Court but was dismissed under Order XLI, Rule 11. As the plaintiffs now ask for a declaration that the decision in that second appeal was without jurisdiction it is necessary for us to consider whether an appeal lies to the High Court from a decision of the District Judge under Section 16 of the Act.

(3.) In Jamsang Devabhai V/s. Goyabhai Kikabhai,(1891) I.L.R. 16 Bom. 408 it was held that the decision of the District Court on appeal from the Talukdari Settlement Officer was subject to a second appeal to the High Court. Sargent C J. said (p. 413): "We think that the effect of the concluding words of Section 16 of Act VI of 1888 is to give the decision of the District Court on appeal from the Talukdari Officer the same character in all respects as a decree from an ordinary suit before a subordinate officer, and that, therefore, like all such decrees, such decision is subject to second appeal to this Court. This view is assisted by the concluding words of Section 21, which shows that they must, if possible, be construed so as not to affect the High Court's jurisdiction." With the greatest respect we cannot agree. The High Court has jurisdiction to hear second appeals by virtue of the provisions of Section 100 of the Civil Procedure Code, which enacts that save when otherwise expressly provided in the body of the Code or by any other law for the time being in force an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court on any of the grounds therein mentioned. Under Section 99 an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. The Talukdari Settlement Officer is not a Court exercising original jurisdiction, and it cannot be said that because Section 16 of the Act gives a right of appeal to the District Judge from his decision, that decision is a decree within the definition in Section 2 (2) of the Civil Procedure Code. The District Court hears the appeal as if it wore an appeal from a decree of a Court from whose decision the District Court is authorised to hear appeals, but that is a specific right of appeal based on an analogy, and the analogy cannot be extended further so as to entitle a dissatisfied party to take a second appeal to the High Court.