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1905 DIGILAW 206 (ALL)

Zahir Ali v. Sher Ali

1905-12-05

BURKITT, STANLEY

body1905
JUDGMENT : Burkitt, J. These are two appeals by the plaintiff-appellant against appellate orders of the District Judge of Farrukhabad passed on two appeals instituted in the Court of the learned District Judge by the present defendant-appellant against two appellate decrees of the Collector in favour of the plaintiff in a rent suit.’ The suit was instituted by the plaintiff in the Court of an Assistant Collector of the second class to recover a certain amount as rent claimed to be due from the defendant on the allegation that the defendant was tenant of certain land and that the rent claimed was due and unpaid. In his defence the defendant set up the plea (to use the words of the District Judge in appeal) that “he had nothing to do with the land himself but that his wife and sister-in-law were the proprietors of it.” The Court of first instance held that the defendant was tenant of the land (he being so recorded in the settlement papers) and gave plaintiff a decree, but for a smaller sum than that claimed. Both parties appealed to the Collector, who, on the defendant's appeal, affirmed the finding of the Court of first instance as to the existence of the relationship of landlord and tenant between the parties and dismissed the appeal. On the plaintiff's appeal he modified the decree of the first Court by giving plaintiff a decree for the full amount claimed. The defendant appealed to the District Court against both these decrees. 2. In the memorandum of appeal in each case he contended that the lower Court should either have under the new law ordered under section. 199, to have the proprietary rights determined by the Civil Court or should have determined the question of title itself like the Civil Court. “There were also other pleas on the merits which it is not necessary to notice. It is not easy to understand how on the pleadings either section 199 or 202 of the new Rent Act is applicable. As to section 199 the defendant had not’ pleaded that he had any proprietary right in the land the rent of which was in question. His plea, as mentioned above, was that he had nothing to do” with the land, the proprietors of which he alleged were his wife and sister-in-law. As to section 199 the defendant had not’ pleaded that he had any proprietary right in the land the rent of which was in question. His plea, as mentioned above, was that he had nothing to do” with the land, the proprietors of which he alleged were his wife and sister-in-law. Section 202 has reference only to a suit instituted in a Civil Court. This suit was instituted in a Revenue Court. 3. The learned District Judge in his appellate judgment points out that the Assistant Collector had not made the wife and sister-in-law of the defendant parties to the suit and had decided the question of title against the defendant though the latter had disclaimed any title in himself. The learned Judge “gathers” that the lower Courts did not intend to decide “the question of title under section 199.” But as pointed out above no such question could have been raised on the pleadings. He then refers to a plea raised by the respondent that as no question of title was decided by the lower appellate Court no appeal lay to the District Court and on consideration came to the conclusion that an appeal did lie. Eventually holding that there had been no trial on the merits of the issue as to the title of the two ladies, the learned Judge set aside the decrees of the two lower Courts and remanded the suit for retrial to the Court of first instance with directions to rehear it after making the two ladies parties to it. Hence these two appeals by the plaintiff to this Court which are entitled “First Appeals from orders. “Among other pleas the appellant contends that no appeal lay to the District Judge from the Collector's decree. For the respondent it is objected that no appeal lies to this Court. 4. On consideration we are of opinion that the respondent's objection must be allowed. The order passed by the District Judge remanding the suit for retrial with certain directions clearly does not amount to a “decree” as defined in the Code of Civil Procedure, section 2. It cannot be held to be more than an “order, “which, had it been passed in a civil suit, would have probably been appealable to this Court under section 588 of the Code of Civil Procedure. It cannot be held to be more than an “order, “which, had it been passed in a civil suit, would have probably been appealable to this Court under section 588 of the Code of Civil Procedure. But section 588 does not apply to proceedings in rent suits under the new Rent Act. By section 193 of that Act it is expressly provided that chapter XLIII of the Code of Civil Procedure, in which section 588 is to be found, shall not apply to any suit or proceeding under the Act. Therefore if the orders under appeal were passed under section 562 no appeal would lie to this Court. Apparently the learned District Judge, citing a case decided on section 202 of the Act and applying, as he says, the same principle to section 199, considers that he has not passed an order under section 562. If that be the case, it is difficult to see what authority the learned Judge had to pass the orders under appeal. But be that as it may, it is in our opinion clear that as the Statute has given us no jurisdiction to entertain an appeal from an “order” passed in an appellate proceeding under the new Rent Act we have no jurisdiction to entertain these appeals. We have no inherent appellate jurisdiction in rent suits outside the power given us by the Statute. Therefore ‘whether the orders under appeal were passed under section 562 or not and whether these orders be right or not, as to which we do not desire to express any opinion, we must dismiss both appeals. We order accordingly. We make no order as to costs.