ADYA SARAN SINGH Vs. JAGANNATH

JUDGEMENT

(1.) THIS is an application of a somewhat unusual character. It is perhaps advisable that we should explain precisely the circumstances under which it comes to be presented. The suit out of which it arose was one filed in the court of an Assistant Collector. The plaintiff in that suit, alleging himself to be the proprietor of certain land in the possession of the defendant as a rent-free grantee, claimed to resume the said grant under the provisions of Section 154 of the Local Tenancy Act (II of 1901). The trial court fixed a large number of issues and decided all of them. In substance it came to the conclusion that the plaintiff was entitled to the relief claimed and it decreed that relief accordingly. There was an appeal by the defendant to the court of the District Judge, and it is not denied that under the circumstances an appeal lay to that court. The District Judge came to the conclusion that the land in possession of the defendant was not liable to resumption under Section 154 aforesaid. By reason of the provisions of Section 153 of the same Act, the court, hearing a suit for the resumption of a rent-free grant and finding the grant not liable to resumption on grounds other than those specified in Section 151 of the Act, is bound to proceed to determine whether that land is liable to assessment of rent, or whether the holder thereof is liable to pay the revenue assessed. The District Judge proceeded to deal with this matter himself. He found on the evidence that this land had been held rent-free for fifty years and by two successors to the original grantee, and on this finding held that the defendant must be deemed to hold the land in proprietary right. THIS made it necessary that the revenue payable by the defendant should be determined. There were no materials on the record upoa which this could be done. The District Judge, therefore, passed an order in which he stated that the appeal was allowed with costs, but that the record must go back to the Assistant Collector in order that the revenue payable by the defendant might be determined. The order is not happily worded. It does not embody the important finding that the defendant is declared to be the proprietor of the land. Moreover, it does not refer to any provision of the law on the strength of which the case is remanded to the court of first instance for further proceedings. The defendant assumed that the order of the appellate court at that stage must be treated as an order of remand under Order XLT, Rule 23 of the Civil P. C. and he was advised that no appeal from such an order would lie to this Court. There is a decision to that effect in the case of Anand Gir v. Sriniwas (1918) I.L.R. 40 All. 652. When the Assistant Collector had carried out the direction given him, the plaintiff presented to the court of this District Judge an appeal against the final decree in the suit. The District Judge held that no appeal lay to him and passed an order returning the appeal for presentation to the proper court, meaning thereby no doubt the court of the Commissioner of the Division. Against this order no appeal lay and even an application in revision would not have been entertained by this Court in the existing state of the authorities. We feel bound to remark that it is a matter deserving the attention of the Legislature whether some definite procedure ought not to be provided by which the question as to whether an appeal in a particular instance lies to the District Judge or to the Revenue Courts might be brought before this Court for adjudication. The application before us now, however, has nothing to do with this order of the District Judge refusing to entertain the plaintiff's appeal against the final decree of the Assistant Collector. Our jurisdiction is being invoked under Section 107 of the Government of India Act in respect of the order by which the learned District Judge, after having adjudicated the defendant in the suit to be the proprietor of the land in question, remanded the case to the court of first instance to have the amount of the revenue payable by him determined. In argument before us this order has been treated as an order of remand under Order XLI, Rule 23 of the Civil P. C.. Looking at the order in this way, it has been contended that it is not a proper order, because the trial court had disposed of every single issue fixed in the suit and the necessity for a further proceeding in that court had arisen under the provisions of the Tenancy Act by reason of the District Judge's finding that the defendant was entitled to be declared the proprietor of the land in suit. It has further been suggested that, under the circumstances, the District Judge would have been better advised to remit an issue to the trial court under Order XLI, Rule 25 of the Civil P. C., calling for a finding as to the amount of the revenue payable. Certainly, if this had been done, the District Judge would then have been in a position to pass a decree in appeal determining every question which had arisen on the pleadings, or which required to be determined under the provisions of the law, and against such a decree a second appeal would have lain to this Court. Looking into this matter in the course of the nrguments addressed to us today, we find some reason to doubt whether the District Judge's order is really one under the provisions of Order XLI, Rule 23 of the Code of Civil Procedure. If it is not, it would have to be described as a decree in the suit, and in that case it would seem that an appeal might have been presented to this Court. We appreciate the difficulty in which the plaintiff was placed. The ruling of this Court to which we have already referred was passed in a suit very similar to the one now before us and only distinguishable from it by reason of the fact that it was a suit instituted by the holder of the rent-free grant for a declaration that he had become by operation of law proprietor of the same. The difference between the two cases, therefore, is that in the case referred to as a ruling, the whole of the proceedings had throughout been under Section 158 of the Tenancy Act, whereas we are dealing here with a proceeding initiated under Section 154 of the same Act, and it only required to be supplemented by a further proceeding under Section 158 because of the decision arrived at by the appellate court and the provisions of Section 153 of the Act. We are not in a position, as the matter now stands before us, to pronounce a final opinion as to whether a distinction could be drawn in principle between the present case and that of Anand Gir V/s. Sriniwas (1918) I.L.R. 40 All. 652, already referred to, still less can we undertake to reconsider that case or to pronounce an opinion as to whether it was rightly decided. Obviously, if upon a correct view of the law the order drawn up by the court of the District Judge on the judgment delivered by him when he heard and determined the appeal filed by the defendant did amount to a decree, then there is no foundation for the application now before us. It would be on the face of it absurd for this Court to issue a direction to the District Judge to draw up a decree on the basis of a certain judgment, if as a matter of fact and of law such a decree had already been prepared. We must, therefore, deal with the application before us on the assumption that the order which it is desired to call in question is not a decree, but is an order of remand, whether such remand be assumed to be based upon the provisions of Rule 23, Order XLI of the Civil P. C., or on some inherent power of remand exercisable by the appellate court independently of that rule. Looking at the matter from this point of view, it seems to us that we are really being asked to hold that the District Judge made an improper exercise of his discretion in passing this order of remand, instead of either remitting an issue under Order XLI, Rule 25 of the Civil P. C., or drawing up his decision on the appeal in such a form as to put it beyond doubt that the said decision was a decree and not an order of remand. Now, in the case of Muhammad Suleman Khan V/s. Fatima (1886) I.L.R. 9 All. 104, it was held as long ago as the year 1886, that the power of superintendence vested in this Court, which is now embodied in Section 107 of the Government of India Act, was not intended to authorize this Court, in the exercise of the authority so given, to interfere with and set right the order of a subordinate court on the ground that such order has proceeded on an error of law or an error of fact. We approve of the principle laid down in this decision and we propose to follow it. It is, in our opinion, fatal to this present application. We dismiss it accordingly with costs.