KASHI KAHAR Vs. BASHARFI SINGH

JUDGEMENT

(1.) This is a second appeal by a defendant against a decree of the learned District Judge of Benares passed in first appeal dismissing his appeal and upholding the decree of a Munsif for removal of certain constructions by the defendant and an injunction against the defendant making any constructions on the plot in question. The plaintiff is the land-holder of mauza Bhadaini which happens to be within the municipal limits of Benares City. There was a fixed rate tenant of the plaintiff Benarsi Lal and he executed a sale deed dated 15 February 1934 in favour of Kashi, the defendant. That sale deed sets out that Benarsi Lal had purchased at auction sale a fixed rate tenancy of 1 bigha 6 biswas 17 dhurs of land and that he needed money and was not able to sell all the area so he was selling it off in small lots and he sold to Kashi Kahar 1 biswa 31/68 dhurs for Rs. 285. It is a fact that the sale deed does not actually state that the purchase was for building a house but the sale deed does state that the various-purchasers agreed to have a way demarcated for the convenience of all of them.

(2.) The defendant, Kashi, also in the witness box admitted that the sale was for the purpose of building a house on the whole of it for his residence. The Court below has held that under the Agra Tenancy Act, Act 3 of 1926, Section 3(2) states that "land" means land which is let or held for agricultural purposes, or as grove-land or for pasturage but does not include land for the time being occupied by dwelling houses or manufactories or appurtenant thereto. The Court pointed out that under Section 109 a fixed rate tenant may make any improvement, but although under Section 3(11)(d) buildings on the holding elsewhere than on the village site were classed with "improvements," this was admittedly not the case here because the defendant was not building the house for the profitable use of the holding. He had merely purchased a portion of the plot for the purpose of building a house on it. The case for the land-holder therefore was that because the definition of "improvement" does not cover the present case therefore the defendant had no right to build the house.

(3.) The defendant pleaded in the Munsif's Court that the Civil Court had no jurisdiction and he amplified that plea by arguing that the Revenue Court had exclusive jurisdiction. The Munsif accepted this argument and ordered the plaint to be returned to the plaintiff for presentation to the proper Court. A first appeal was brought and the Appellate Court held that the Civil Court had jurisdiction and remanded the suit for disposal on the merits. The Munsif then decreed removal and injunction and an appeal was brought to the District Judge and the District Judge has dismissed that appeal. The defendant has now brought this second appeal and taken as his first ground that the lower Court had erred in holding that the Civil Court had jurisdiction. Learned Counsel for respondent argued that this question of jurisdiction should not now be raised in this second appeal and he argued that the question was finally decided between the parties by the order in appeal of the Appellate Court on the first occasion. Now where a question of jurisdiction was determined and a plaint was returned to the plaintiff for presentation to the proper Court, Order 43, Rule 1(a) provides that an appeal lies under the provisions of Section 104. Now Section 104 (2) provides : "No appeal shall lie from any order passed in appeal under this section." Therefore no appeal lay from the order of the lower Appellate Court the first time, when the jurisdiction question came before it. As the case has now been concluded, a second appeal lies from the decree of the lower Appellate Court. Section 105(1) applies- where a decree is appealed from, any error, defect or irregularity in any order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal.