PURSHOTTAM DATTATRAYA SHETYE Vs. YESHVADABAI JAYADEO SHETYE

JUDGEMENT

(1.) This is an application for revision of an order of remand made by the District Judge of Ratnagiri on appeal from the Subordinate Judge of Malvan in certain execution proceedings. There had been a suit in which the opponent obtained a decree for possession of certain land, survey No, 11. pot No. 4, against the present applicant and his brother. When the decree was sought to be executed, it was found that there was a shed on the land which had been constructed by the judgment-debtors. On behalf of the decree-holder it was alleged that the shed had been erected since the decree. A Commissioner was appointed to draw a map and to ascertain the age of the building. He submitted a report to the effect that the building was ten or eleven years old. The Subordinate Judge then disposed of the darkhast by directing that the decree-holder was to be given possession of the land with the exception of the shed and the land beneath it. He also directed that the judgment-debtors were to have a right of way to the shed from their adjoining land pot No. 5.

(2.) The decree-holder appealed to the District Court. The learned District Judge was of opinion that the trial Court had gone beyond the decree in allowing the judgment-debtors a right of way and he further held that the darkhast could not be properly disposed of without a determination of the question whether the shed had been erected before or after the decree was passed. As regards the right of way it is not clear that the learned District Judge had observed that the judgment- debtors are the owners of pot No. 5. So that all that they have been allowed is a right of way through a small portion of pot No. 4 to get to the shed. If they are entitled to retain possession of the shed and its site, it would seem prima facie that the right of way to it would be an easement of necessity. But, of course, it is necessary to determine whether the shed was erected before or after the decree, since in the latter case the judgment-debtors would not. be entitled to retain it. The learned District Judge may have been perfectly right in thinking that this was an issue necessary for the determination of the case which the lower Court had omitted to determine. On that view he would have been justified in sending down an issue under Rule 25 of Order XLJ. What he did, however, was to set aside the order of the lower Court and remand the darkhast for re-trial in the light of his observations. Such an order could in the normal way only be passed under Rule 23 of Order XLI where the case has been decided by the original Court on a preliminary point. That was not so in the present case.

(3.) The questions before me in this revision application are whether the District Judge's order of remand was a legal order and whether, if not, this Court can or should interfere. It is conceded and it is obvious that Rule 23 of Order XLI does not apply. However wide the interpretation one may put upon the words "preliminary point," it cannot be held that the Subordinate Judge here disposed of the case on a preliminary point so as to bring the matter within the ambit of the rule. It is also conceded that the District Judge might have made an order under Rule 25 sending down an issue while retaining the appeal for disposal on his own file, and further that that would have been a satisfactory procedure which would have met the case perfectly well.