MOHAN LAL MAHTO Vs. PARSU RAM MAHTO

JUDGEMENT

(1.) DEFENDANT in Title Suit No. 147 of 1975/14 of 1978 on the file of the First Additional Subordinate Judge, Ranchi is the appellant in this appeal filed under Clause 10 of the Letters Patent. The suit was filed by the respondents herein, the plaintiffs, for declaration of their title over the plaint schedule property and for confirmation of their possession and, in the alternative, for recovery of possession on the strength of their title. The plaintiffs pleaded that the suit had been filed in the light of the proceedings initiated under Section 145 of the Code of Criminal Procedure and cloud cast on their title and possession. The defendant, the appellant herein, resisted the suit and in so far as it is relevant for the purpose of this appeal, contended that the suit was barred by Section 35 of the Bihar Land Reforms Act and also by Section 258 of the Chotanagpur Tenancy Act. The trial Court accepted the plea of the defendant that the suit was barred by Section 35 of the Bihar Land Reforms Act and dismissed the suit. The appeal filed by the plaintiffs before this Court was allowed by the learned Single Judge who held that the suit was not hit either by Section 35 of the Land Reforms Act or by Section 258 of the Chotanagpur Tenancy Act and that the suit required to be tried properly and afresh by the trial Court. The learned Single Judge therefore allowed the appeal, set aside the judgment and decree of the trial Court and remanded the suit to the trial Court for deciding the suit afresh on the basis of the findings rendered and observations made in his judgment. It is this order of remand that is challenged in this appeal by the defendant.

(2.) WE have not considered the question whether an order of remand passed by a learned Single Judge In an appeal can be appealed against under Clause 10 of the Letters Patent. This question was left open to be decided at the time of admission. In a way in the case on hand, there is a finding by the learned Single Judge that the suit is maintainable and to that extent, a final decision has been rendered against the defendants. May be, the defendant could appeal against that decision when the matter finally reaches the Supreme Court but otherwise it would become final as against him in view of Section 105(2) of the Code of Civil Procedure. The decision of the Supreme Court in Shah Babulal Khimji v. Jayben, AIR 1981 SC 1786, may also have the relevance. We do not think it necessary to decide that question finally in this Appeal. We, proceed on the basis that this appeal is maintainable.

(3.) LEARNED counsel for the appellant contended that on the pleadings, particularly with reference to paragraphs 2 and 6 of the written statement, it could be seen that the defendant had applied under Section 6 of the Bihar Land Reforms Act and after publication of the notice as envisaged, an order had been made in favour of the defendant and no appeal had been filed by the plaintiffs in terms of Section 8 of the Act and that the attempt of the plaintiffs was really to question the recognition of the right of the defendant on the application made under Section 6 of the Act and as such, the suit was hit by Section 35 of the Act. The learned Single Judge essentially negatived this contention by relying on the decision of the Supreme Curt in Gurucharan Singh v. Kamla Singh, AIR 1977 SC 5. Counsel pleaded that in the light of the decision of the Supreme Court in A Bodayya v. L. Ramaswami, AIR 1984 SC 1726, it must be held that the suit was barred since the question could be decided only by the Authority under the Act and the Authority had in fact done so. As against this, learned counsel for the plaintiffs -respondents pointed out that an order had been passed by the Authority under this Act, on an application by the plaintiffs, recognizing their right over the holding and that order had become final in view of the dismissal of the appeal filed by the defendant against it and consequently, it cannot be said that the suit was hit by Section 35 of the Act. Counsel further submitted that the suit had been filed for declaration of title and possession and in the alternative, for recovery of possession, only in view of the proceedings under Section 145 of the Code of Criminal Procedure and the cloud that was cast on the right of the plaintiffs. Counsel submitted further that the scope of Section 35 of the Land Reforms Act has been clearly enunciated by the Supreme Court in paragraph 13 of the decision in Gurucharan Singh v. Kamla Singh, AIR 1977 SC 5, and the said decision was rightly followed by the learned Singe Judge. He submitted that the trial Court was in error in holding that the suit was not maintainable.