Patna High Court
Tapesar Raut And Ors. vs Ram Jatan And Ors. on 12 September, 1961
Equivalent citations: AIR 1962 PATNA 60
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT
1. In the suit out of which this appeal arises the plaintiffs alleged that by two sale deeds dated the 5th November, 1947, they had purchased plot No. 2743 of Khata No. 165 of village Dhorlahi from the recorded tenant Dharichhan Singh, defendant No. 5. The plaintiffs further alleged that the defendants first party interfered with their possession and so they brought the present suit for a declaration of their title and for recovery of possession. The suit was contested by the defendants first party on the ground that the disputed land was in their possession as Shikmidars from Baisakh 1332 Fasli and that they had taken shikmi settlement from the recorded tenant, defendant No. 5. Upon these rival contentions the trial court held that the sale deeds upon which the plaintiffs relied conveyed no title and the trial court further held that the defendants first party were in possession of the land as Shikmidars from 1332 Fasli. The plaintiffs took the matter in appeal, and the subordinate judge who heard the appeal held, in the first place, that the sale deeds upon which the plaintiffs relied were genuine and for consideration. He further held that the defendants first party had failed to prove that the land in suit was in their possession continuously for a period of twelve years as shikmidars. On these findings the subordinate judge held that the plaintiffs were entitled to a decree in the terms they had asked for in the plaint.
The defendants came up in second appeal to the High Court. It was argued in the second appeal that the suit was governed by Article 142 of the Limitation Act and not by Article 144 of the Limitation Act. The argument was accepted by Sahai, J. who set aside the decree and judgment of the lower appellate court and remanded the case to the lower appellate court for a finding as to whether the plaintiffs or their vendor had succeeded in establishing that they were in possession of the disputed land at any time within twelve years of the suit. It was also directed by the learned judge that if it was found that the plaintiffs or their vendor had failed to establish their possession within twelve years of the suit then the suit must be dismissed so far as their prayer for Khas possession was concerned.
2. Against the judgment of Sahai, J. the plaintiffs have brought this appeal under Clause 10 of the Letters Patent.
3. On behalf of the respondents a preliminary objection is raised that the appeal is not competent under Clause 10 of the Letters Patent of the Patna High Court. It was submitted that the judgment of the learned single Judge only remanded, the case to the lower appellate court for hearing on merits and the order of remand cannot be said to constitute a judgment within the meaning of Clause 10 of the Letters Patent which is to the following effect:
"10. And we do further ordain that an appeal shall lie to the said High court of Judicature at Patna from the Judgment not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court, and not being an order made in the exercise of re-visional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court. Pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court pursuant to Section 108 of the Government of India Act, made on or after the first day of February one thousand nine hundred and twenty nine, in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal, but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or successors in our or Their Privy Council, as hereinafter provided.'' We are unable to accept the argument put forward by the learned Government Advocate as correct. In the present case the learned Single Judge has in second appeal set aside the decision of the lower appellate court granting a decree to the plaintiffs for recovery of possession of the disputed land from the defendants. After setting aside the decree of the lower appellate court the learned Single Judge has remanded the case for a fresh hearing to the lower appellate court in accordance with the principle laid down in his judgment. In these circumstances we think that the judgment of Sahai, J. allowing the second appeal and remanding the case for re-hearing is a judgment within the meaning of Clause 10 of the Letters Patent, and it follows, therefore, that the present appeal under that clause of the Letters Patent is competent.
The view we have expressed is borne out by a decision of a division Bench of this High Court in Ajit Chaudhuri v. Janak Lal, AIR 1924 Pat 336. It was pointed out by Dawson-Miller, C. J. in that case that if a judge of the High court without setting aside the decision of the lower Appellate court merely remands the case for the finding of an issue with directions to return that finding before finally disposing of the appeal, then that is not a judgment within the meaning of the Letters Patent, but where the judge sets aside the decision of the lower appellate court and orders a retrial by that court, that decision amounts to a judgment within the meaning of Clause 10 of the Letters Patent, and in such cases an appeal is permissible from that decision. In our opinion the ratio decidendi of this case governs the present case and we hold that the appeal of the plaintiffs under Clause 10 of the Letters Patent in the present case is maintainable.
4. On behalf of the respondents the learned Government Advocate said that the authority of the decision of the Division Bench in AIR 1924 Pat 336 has been shaken by the decision of the Privy Council in Sevak Jeranchod Bhogilal v. Dakore Temple Committee, AIR 1925 PC 155 and the decision of the Federal Court in Kuppuswami Rao v. The King, AIR 1949 PC 1. We do not think that this submission of the learned Government Advocate is correct. The decision of the Privy Council in AIR 1925 PC 155, has no bearing on the question presented for determination in this case. In the Privy Council case the question at issue was whether there was right of appeal to His Majesty in council from the judgment of the High Court under Clause 39 of the Letters Patent of the Bombay High Court. It was held by Sir John Edge in the Privy Council case that the term "Judgment" in the Letters Patent of the High court meant in civil cases a decree and not a judgment in the ordinary sense.
Now there is a vital difference in the language of Clause 39 of the Letters Patent of the Bombay High Court which deals with appeals to His Majesty in Council from the Judgment of the High Court and Clause 15 of the same Letters Patent dealing with appeals from decisions of a Single judge or a Division Bench of the same High Court. Clause 39 of the Letters Patent mentions in detail the circumstances in which an appeal is competent to His Majesty in council. It is important to notice that under this clause an appeal is provided against "any final judgment, decree or Order of the High Court". In contrast Clause 15 of the Letters Patent states that an appeal shall lie to the said High Court from "the judgment of one judge of the said High Court or one judge of any Division court in the exercise of appellate jurisdiction." It is manifest that the judgment of the Privy Council does not refer to Clause 15 of the Letters Patent of the Bombay High Court and, therefore, it has no application to the present case. The decision of the Federal Court in AIR 1949 FC 1, was also not a case dealing with the interpretation of Clause 15 of the Letters Patent of the Madras High Court, but it was a case with regard to the construction of the phrase "Judgment or final order" used in Section 205 (1) of the Government of India Act, 1935. In our opinion the decision of the Federal Court also has no bearing on the question which has arisen for decision in the present case.
5. The view We have taken with regard to the interpretation of Clause 10 of the Letters Patent of the Patna High Court is supported by the decision of the Calcutta High Court in Gopinath Pati v. Moheshwar Pradhan, ILR 35 Cal 1096 and by a decision of a Full Bench of the Allahabad High Court in Sital Din v. Anant Ram, ILR 55 All 326 : (AIR 1933 All 262). Learned Counsel on behalf of the respondents also referred to the decision of this High Court in Gobind Lal v. Administrator General of Bihar, (S) AIR 1955 Pat 56 and Kartar Singh v. Administrator General of Bihar, AIR 1959 Patna 349, In the former case it was held by the Division Bench that an order of a judge of the High Court appointing the Administrator General as the administrator pendente life under Section 247 of the Succession Act was not a judgment within the meaning of Clause 10 of the Letters Patent and no appeal lay against it under that clause. In the latter case it was similarly held that an order by the High Court giving directions to the Administrator general under Section 28 of the Administrator Generals Act 1913, to convey the properties of the deceased to a third party could not he treated either as an adjudication or as an order creating a right in favour of the third party and, therefore, not a judgment as contemplated by Clause 10 of the letters patent. Both these cases are distinguishable and the principle of those cases cannot be applied to the present case because the material lack of the present case are manifestly different.
6. For these reasons we reject the preliminary objection raised on behalf of the respondents and we hold that the appeal under the Letters Patent is maintainable in the present case under Clause 10 of the Letters Patent
7. With regard to the merits of the case it was conceded by the learned Government Advocate that the view of law expressed by the learned Single Judge is not consistent with the decision of a Full Bench of this High Court in Jaldhari Mahto v. Rajendra Singh, AIR 1958 Pat 386). It was pointed out by the Full Bench, in circumstances similar to those in the present case, that the proper Article to apply was Article 144 of the Limitation Act and the onus lay on the defendant to grove that he had acquired the limited right of Shikmi tenant by adverse possession. In our opinion the decision of the Full Bench in AIR 1958 Pat 386 (FB) applies to the present case, and in view of the principle laid down in that decision we hold that this appeal should be allowed and the decision of the learned Single judge, dated the 28th May, 1956, should be set aside and the judgment and decree of the lower appellate court dated the 8th September, 1951, should be restored.
8. We accordingly allow this appeal under the Letters Patent. There will be no order as to costs of this court.