MT PHULBANS KUAR Vs. BHAGDAT SINGH

JUDGEMENT

(1.) This case has been referred to a Bench of two Judges. This second appeal arises out of a suit brought by certain zamindars under Section 154, old Agra Tenancy Act. The Assistant Collector hold that the defendants were rent-free grantees and liable to resumption and accordingly assessed the rent. On appeal by the defendants, the District Judge came to a contrary conclusion. He held that the defendants have been in adverse proprietary possession of the lands and declared them to be proprietors under Section 1.58. He went on to hold that the suit ought to be dismissed. But finding that the revenue directed to be assessed under the section had not been determined he passed an order in the following words: I would allow the appeal and set aside the order and decree of the Assistant Collector.... I would remand the case to the Assistant Collector with instructions to assess revenue on the land; otherwise the plaintiffs suit stands dismissed with costs on the ground that the defendants are nankardars.

(2.) By the word otherwise "he clearly meant" in other respects. He further remarked that he had no objection to the Assistant Collector postponing the assessment of revenue in case the matter was taken up in second appeal.

(3.) It is from this decree or order that this appeal has been preferred. A preliminary objection was taken before the learned Judge before whom this appeal came up first that no second appeal lay. Having regard to the peculiar circumstances of this case the learned Judge was inclined to the view that it would be very hard on the plaintiffs if they are deprived of all remedy. He, however, felt that he was unable to distinguish the present case from the decision in Anandgir v. Sriniwas [1918] 40 All. 652.