KANHAIYA Vs. SHANKAR LAL

JUDGEMENT

(1.) A preliminary objection has been raised on behalf of the plaintiff-respondent to the effect that no appeal lay to the Court below and that consequently this Court has no jurisdiction to entertain a second appeal. The suit was one by the lambardar for ejectment of the appellant, along with certain other defendants, under Section 180, U.P. Tenancy Act (17 of 1939). The suit was filed in the revenue Court in accordance with the provisions of the Tenancy Act and was triable by an Assistant Collector of the first class (vide Schedule 4, Group B, serial No. 18 in the Act of 1939). The Assistant Collector, who tried the suit, decreed it. Sub-section (2) of Section 265 of the Act lays down that an appeal from the decree of an Assistant Collector of the first class in all suits included in Group B of Schedule 4 shall lie to the Commissioner. I am not overlooking the fact that Sub- section (3) of that section provides an appeal to the District Judge from the decree of an Assistant Collector of the first class in all suits in which a question of jurisdiction has been decided and is in issue in the appeal. No question of jurisdiction, however, arose or was decided in the present case. It is clear, therefore, that the appellant, if he wished to appeal against the decision of the Assistant Collector, should have taken his appeal to the Court of the Commissioner. Instead of doing so, he filed an appeal in the Court of the District Judge. That appeal was heard by a Civil Judge and was dismissed. This appeal has been filed against that decision. As no appeal lay to the District Judge or the Civil Judge, no second appeal could be brought to this Court. The "appellate decree" mentioned in Section 269 must obviously be a decree in an appeal which the District Judge had jurisdiction to entertain. Mr. Jagnandan Lal, for the appellant, has referred to Sub-section (4) of Section 286. That section, however, deals with a totally different matter? It is admitted that no issue involving a question of proprietary right was ever framed or sent to the civil Court for decision under Sub- section (1), or decided by the civil Court under Sub-section (2) of that section. For the reasons given above, I have come to the conclusion that the preliminary objection is well founded. The appeal is accordingly dismissed with costs.