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1967 DIGILAW 15 (RAJ)

Balbir v. Mukhram

1967-01-12

G.B.K.HOOJA

body1967
This revision petition has been filed against the judgment and decree of the learned Revenue Appellate Authority, Jaipur, dated 17.1.1962. A preliminary objection was raised by the counsel for the non-petitioner that Balbir could not bring the revision petition as he was a Biswedar and the lands having vested in the Govt. after the abolition of the Biswedari, he could not bring a suit for ejectment. This objection would have been tenable if as a result of the abolition of Biswedari the right and title of the Biswedar in this land were held to have been extinguished, but as it happens in this case the contention of the petitioner is that the land was in his khudkasht and, therefore, the non-petitioner could not acquire khatedari rights therein. It is obvious that this question which goes to the root of the case has not been examined by the courts below. Under the circumstances, the preliminary objection is hereby over-ruled. Briefly stated the facts of the case are that Mukhram moved an application under sec. 7 of the Rajasthan Protection of Tenants Ordinance on 16.7.54 for being declared as the successor of his deceased brother, Ramkanwar and for reinstatement. The trial court held the applicant not entitled to succeed to Ramkanwars property and accordingly, rejected the application on 27.5.61. The appeal filed by Mukhram was accepted by the learned Revenue Appellate Authority vide his order dated 17.1.1962. It is against this order that the petitioner has come up in revision. His contention is that Ramkanwar was his occupancy tenant who died issueless in 1954. As the Alwar Revenue Code was the law then prevalent in the erstwhile State of Alwar, succession to his property would be governed by sec. 136 thereof. As Ramkanwar left no one surviving him in accordance with the provisions of this section, his rights stood extinguished and reverted to the petitioner. It is submitted that the trial court had framed as many as five issues, but did not examine the other issues as it decided to dismiss the suit on the determination of the first issue which had been split into two following issues during the course of the trial on 5.4.56:— 1. Whether the plaintiff is occupancy tenant of the suit land and he and Ramkanwar deceased used to cultivate this jointly? 2. Whether the plaintiff is occupancy tenant of the suit land and he and Ramkanwar deceased used to cultivate this jointly? 2. Whether the applicant is successor to the properties of Ramkanwar deceased and whether Ramkanwar was head of the family and Karta? These two issues having been found against the non-petitioner, his application was dismissed by the trial court. As the judgment was in favour of the petitioner, he was not called upon to seek the determination of the other relevant issues as originally as such as the question of limitation (Issue No. 3) and whether the land devolved in succession on the non-petitioner without his obtaining a succession certificate (issue No. 4). It is his contention that the appellate court has reversed the decree of the trial court on the preliminary point only. While doing so, the appellate court has ignored the provisions of O. 41, r. 23 and 24 of C.P.C. which may be reproduced here for ready reference:— 24. "Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the appellate court may, if it thinks fit, by order remand the case, and may further direct that issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall subject to all just exceptions, be evidence during the trial after remand. 24. Where the evidence upon the record is sufficient to enable the appellate court to pronounce judgment, the appellate court may after resettling the issues, if necessary finally determine the suit, notwithstanding that the jugdment of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the appellate court proceeds. 24. Where the evidence upon the record is sufficient to enable the appellate court to pronounce judgment, the appellate court may after resettling the issues, if necessary finally determine the suit, notwithstanding that the jugdment of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the appellate court proceeds. It is his contention that while deciding to reverse the judgment of the trial court in appeal, the appellate court should have either remanded the case to the trial court for the determination of the other relevant issues or should have proceeded to determine them if it found that the evidence on the record was sufficient to enable it to determine them, as the trial court had disposed of the suit upon a preliminary point. Thus it is urged that the impugned order suffers from an illegality which calls for the interference of this court in revision. This contention must be upheld. The learned counsel for the non-petitioner has contended that the trial court did not decide the case on a preliminary point, but went into the merits of the case. This contention cannot be supported in view of the interpretation of the words preliminary point" given in Abdul Gani vs. Devilal (A.I.R. 1950 Raj. 77), which is as under— The words "preliminary point" should not be narrowly construed so as to be confined to pleas like limitation and res judicata but should be given a liberal meaning so as to include any point connected or not connected with the merits of the case, a decision of which in some particular manner results in the disposal of the suit without the necessity of deciding other points actually arising in the case which or at any rate some of which must necessarily be decided for the disposal of the case in the event of a different decision on preliminary point not resulting in the disposal of the suit. It will be thus seen that the word "preliminary point" cannot be construed narrowly and the contention of the learned counsel for the non-petitioner is obviously untenable. It will be thus seen that the word "preliminary point" cannot be construed narrowly and the contention of the learned counsel for the non-petitioner is obviously untenable. I agree with the learned counsel for the petitioner that the issues regarding limitation as well as the right and title of the non-petitioner as the successor of the deceased in accordance with the then prevailing law go to the very root of the case and call for determination by the courts below. I would, therefore, accept this revision petition and remit the case to the first appellate court for the determination of these issues in accordance with R. 24 O. 41, if sufficient evidence is available on record. If this is not so, the case may be remitted by the first appellate court to the trial court for determination of these issues in accordance with R.23. The first appellate court will be at liberty to frame any other issues which it may consider necessary for determination in these proceedings, according to law. I find that the non-petitioner claims succession to the land as the surviving brother of the deceased who was the occupancy tenant. As such I think he has a prima facie case and should be allowed to continue in the enjoyment on the same until the decision of the case.