PAIDAPATI VENKATANARASU Vs. VIKRAM KOTAYYA

JUDGEMENT

(1.) The plaintiff-appellant sued to establish his right to, and to recover possession of, the suit land on the ground that it formed part of the "Shroff-Service inam land " of the village. The defendants contended that questions relating to Shroff's Service are governed by Madras Act III of 1895 and that Civil Courts have no jurisdiction to try the suit. Accepting their contention the District Munsif returned the plaint for presentation to the Revenue Court. On appeal, the District Judge, holding that the suit is triable in a Civil Court, set aside the District Munsif's order and remanded the case to the Lower Court for disposal. The District Munsif then gave a decree to the plaintiff for possession of the suit lands and past profits. This decree was confirmed by the Subordinate Judge. In second appeal the question as regards the jurisdiction of the Civil Court to try the suit was once again raised and the learned Judge, Wallace, J., after calling for findings from the Lower Court, came to the conclusion that the subject-matter of the suit fell within the purview of Act III of 1895. He, therefore, set aside the decree of the Appellate Court and restored the original order of the District Munsif returning the plaint for presentation to the Revenue Court. This Letters Patent Appeal has been preferred against the decree passed in the Second Appeal setting aside the decree of the Lower Appellate Court.

(2.) The main argument of the appellant is that, since respondents (defendants) did not prefer an appeal against the order of remand passed by the District Judge, they are precluded, under Section 105, Clause 2 of the Civil Procedure Code, from disputing its validity in second appeal. This is met by the reply that the Code does not provide for an appeal against an order of remand of the nature passed by the District Judge in this case; and that the respondents can question the correctness of that order in proceedings in appeal under Section 105, Clause 1 of the Code. To this, the appellant rejoins by saying that, since the " remand order " does not " affect the decision of the case, " the respondents cannot invoke the aid of such section. The questions arising for decision are : (1) Whether the order of remand passed by the District Judge in this case is appealable, and (2) whether the order, if not appealable, is an order affecting the decision of the case within the meaning of Section 105, Clause 1 of the Code.

(3.) The appellant relies on Order 43, Rule 1, Clause (u) in support of his contention that the order of remand passed in this case is appealable. This argument cannot be accepted. Clause Clause(u) of Rule 1 of Order 43 contemplates an appeal from an order of remand under Rule 23 of Order 41. Rule 23 enables the Appellate Court to pass an order of remand in an appeal against a decree in a suit which has been disposed of on a preliminary point. In the case before us, the appeal before the District Judge was not against a decree but against an order passed by the District Munsif returning the plaint under Rule 10 of Order 7. An appeal is provided against such an order under Order 43, R 1, Clause (a), and the order passed by the Appellate Court becomes final under Section 104, Clause (2). It follows that it was not open to the respondents to prefer an appeal against the order of remand passed by the District Judge. This conclusion is supported by the decisions in Firm Bhawani Sahai-Kanshi Ram V/s. Firm Harbans Singh Gopal Das (1920) 68 I.C. 304, Naubat Singh V/s. Baldeo Singh (1911) I.L.R. 33 A. 479 and Nilkanth V/s. Balvant (1925) 27 Bom. L.R. 635. Section 105, Clause (2) did not, therefore, preclude the respondents from disputing the correctness of the remand order before the learned Judge in second appeal if they were otherwise entitled to do so.