JOKHAI Vs. JAWAHIR LAL

JUDGEMENT

(1.) This is a reference by the District Judge of Benares under Section 267, Agra Tenancy Act. Two suits bad been filed by the plaintiffs zamindars against the defendant tenant for the possession of certain plots on the ground that the last tenant had died heirless, and that the defendant was a mere trespasser. The defendant raised the plea that he was the tenant of the plaintiffs, and an issue was framed by the Civil Court whether the relation of landlord and tenant exists between the parties. The trial Court referred this issue to the Revenue Court which was the Court of an Assistant Collector. The Assistant Collector first decided the issue in favour of the defendant having come to the conclusion that the defendant was the tenant of the plots in dispute.

(2.) The zamindars then filed an application for review under Order XLVII, Civil Procedure Code which was granted and the previous finding was set aside and the Court came to the conclusion that the defendant was not the tenant of the plots in suit. The defendant accordingly preferred two appeals from the findings to the Court of the District Judge, Benares, but they were returned by the District Judge for presentation to the proper Court. The appeals were then filed in the Court of the Subordinate Judge, Jaunpur, but the Additional Subordinate Judge to whose Court they were transferred held that the appeals should have been filed in the Court of the District Judge and he had no jurisdiction to entertain them. He accordingly ordered that the appeals be returned for presentation to the proper Court. Acpordingly the defendant-appellant applied to the District Judge for a reference of this question to the High Court.

(3.) The question as to which forum the appeal will lie will obviously depend on the further question whether an appeal lies at all. Section 242, Agra Tenancy Act, does not in terms apply because it refers to appeals from the decree of an Assistant Collector. Section 248 refers to appeals from orders and in Sub-section (3) it is expressly provided that an appeal shall lie from the orders of the Assistant Collector, First Class, mentioned in Order XLIII, Rule 1. It would, therefore, follow that if the Assistant Collector's finding were an order, then an appeal would lie under Order XLIII, Rule 1, Sub-rule (w). But the same section provides that such appeal shall lie to the Court, if any, "having jurisdiction under Section 242 of the Act" to hear an appeal from the decree in the suit. In this particular case, there would be no Court which would have jurisdiction under Section 242 of the Act to hear an appeal because the finding of the Assistant Collector certainly did not amount to a decree in any suit. Mo such difficulty would arise if the finding were not treated as an order of the Collector. Section 251 also provides that a subordinate Revenue Court shall be comptent to review its judgment in accordance with the provisions of the Civil Procedure Code and the provisions of Order XLVII, Civil Procedure Code. Thus if the finding of the Assistant Collector were to amount to a judgment then he would have jurisdiction to review his judgment under Order XLVII, Civil Procedure Code.