NANDURU SOBHANADRACHARYULU Vs. NANDURU VENKATA NARASIMHACHARYULU

JUDGEMENT

(1.) This second appeal arises out of a suit for rent filed under Section 77, Estates Land Act. The Deputy Collector decided issues 1 and 2, viz.: (1) whether the plaintiff is entitled to a share of wet crop raised on the suit land and (2) whether the plaintiff is entitled to recover rent for the use of water by the defendants from the tank which is the irrigation source for the suit land, against the plaintiff but passed a decree in his favour for Rs. 10 which was admitted, with interest at 6 per cent per annum, and dismissed the rest of his claim.

(2.) On appeal the District Judge decided issues 1 and 2 in favour of the appellant and remanded the suit for disposal as regards the amount due. The order of the District Judge was in these terms: It is ordered that the decree of the lower Court be and the same hereby is sot aside, and the suit remanded to the lower Court, that the Deputy Collector of Nuzvid division do restore the suit to its original number in the register of Summary Suits and proceed to dispose of it according to law, and then he makes the usual order as to costs.

(3.) Against the decision of the District Judge this second appeal has been filed. A preliminary objection has been taken that no second appeal lies against the order of remand, as Section 192, Estates Land Act, does not permit an appeal under the Civil Procedure Code. This has been decided in a number of cases: see Krishnaswamy Ayyar V/s. Vaithilinga Thambiran [1911] 12 I.C. 146 and Vilvanatha Mudaliar V/s. Mannar Naidu [1914] 1 M.L.W. 667. It is, however, argued by the vakil for the appellant that the order of remand was improperly drawn up and in as much as the District Judge found issues 1 and 2 in favour of the appellant and declared also the basis on which the rent was to be collected all that remained to be done was that the amount alone should be determined. That being so, it was in effect a preliminary decree within the meaning of the Civil Procedure Code. He also argued that it is treated as a preliminary decree then an appeal would lie to this Court;. He referred to a decision of this Court in Subbee Goundan V/s. Krishnamachari A.I.R. 1922 Mad. 112 and Channalswami v. Gangadharappa [1915] 39 Bom. 339 to support the view that if the order was wrongly drawn up we can treat the same as if it was a preliminary decree and give the appellant adequate relief in second appeal. The. suit is a suit for rent for the use of water for the reasons set out in the plaint and for a portion of the crops raised by the use of such water. The defence raised was that the plaintiff had no right to recover any share of the produce and that they were entitled to use the water of the tank for raising wet cultivation and that the plaintiff was not entitled to any rent for the use of the water. The issues 1 and 2 in the case really dealt with the rights of the parties and it would have been better if the District Judge had simply called for a finding as to the amount to he arrived at on a calculation of the quantity of the produce and its price. Instead of so doing, the District Judge reversed and remanded the whole case for disposal.