RUPCHAND GANESH SHET Vs. BHOGILAL RATANCHAND

JUDGEMENT

(1.) In this case an issue was framed : "Are defendants or any of them agriculturists?" After considering the evidence which was led before him on that question at great length, the Judge hold that defendants were not agriculturists. He then said : "I must now proceed and frame the remaining issues, and as the case is a complicated one and the pleaders are not ready I put the case down for framing issues on March 1, 1924."

(2.) It appears, however, that the finding on the issue, "Whether the defendants or any of them were agriculturists," was recorded in the form of a decree. Against that an appeal was admitted by this Court. On the face of it the case was covered by the decision of this Court in Dattatraya V/s. Radhabai [1921] 45 Bom. 627. The learned Judges who admitted the appeal, appear to have considered it arguable that the decision in Vamanacharya V/s. Govind A.I.R. 1924 Bom. 33 was opposed to the decision in Dattatraya V/s. Radhabai [1921] 45 Bom. 627.

(3.) We must, therefore, proceed to consider what was decided in each of those cases. In the first case an issue was raised whether the defendant was an agriculturist. The Judge found that the defendant was an agriculturist, and on the plaintiff's application the Court drew up a preliminary decree in terms of the finding on that issue, and against what he called a preliminary decree he appealed to the District Court. The District Judge came to the conclusion that an appeal properly lay from the decree. The appeal came before. Mr. Justice Fawcett and myself, when we held that no appeal lay from a finding of the Judge in the trial Court that the defendant was an agriculturist, and the case would have to go back to the trial Court to continue the hearing from the point at which it was left off. In the course of my judgment I said (p. 98.) The Judge should never accede to an application to draw up in the form of a decree a finding on the question, whether a party is an agriculturist or not. Undoubtedly that is an issue which is the first issue to be tried in the case, and a decision may be given on it; but it by no means follows that because that is the first issue to be tried, therefore it is a preliminary issue on which a decree can be drawn up. The whole case must be decided first before the judgment can be pronounced. There will then be a judgment deciding the rights of the parties with regard to all or any of the matters in controversy in suit, and then it will rightly be the subject of a decree.