JUDGMENT K. P. Singh, J. 1. This writ petition arises out of proceedings under section 175 of the U. P. Tenancy Act. 2. The plaintiff-opposite party had file a suit under section 175 of the U. P. Tenancy Act and the proceedings were initiated under correct sections. Thereafter it was transferred to the court o Sri R. S. Dhore, Magistrate 1st Class, Nainital at Haldwani. who gave moment against the plaintiff as is evident from the judgment date 31-12-68 in appeal in same judgment has been confirmed as is evident from the judgment of the appeal are court dated 24-9-70 (Annexure 3'). Thereafter in second appear the case has been remanded for fresh decision by the Sub Divisional Officer concerned after giving notice to the parties. Aggrieved by the judgment of the second appellate court dated 20/21-2-78, the defendant petitioner has approached this Court under Article 226 of the Constitution. The learned counsel for the petitioner contends before me that the second appellate court has acted illegally in remanding the case without upsetting the finding that the plaintiff's suit was not maintainable under section 175 of the U. P. Tenancy Act. 3. The second contention raised on behalf of the petitioner is that the defendant-petitioner shall be unnecessarily harassed and shall be put to much expenditure for no fault of his and as the second appellate court has not set aside the necessary finding recorded by the first two courts below, its judgment should be quashed. 4. The third contention raised on behalf of the petitioner is that the second appellate court has patently erred in holding that the suit was not maintainable before the Trial Court in view of the provisions of section 179 of the D. P. Tenancy Act. He has emphasised that the plaintiff did not take up the question of jurisdiction before the Trial Court and when the decision went against the plaintiff he has tried to assail the judgment for want of jurisdiction which should not have been entertained by the second appellate court. He has emphasised that the plaintiff did not take up the question of jurisdiction before the Trial Court and when the decision went against the plaintiff he has tried to assail the judgment for want of jurisdiction which should not have been entertained by the second appellate court. It has also been suggested that the Trial Court was competent to deal with the claims of the parties in the present case because the case was transferred to the Trial Court from the file of the Assistant Collector Incharg of the Tarai Sub-Division on the order of the Deputy Commissioner dated 18-11-1968 and this aspect of the matter has escaped notice of the second appellate court. None appears on behalf of the contesting opposite party. 5. I have examined the contentions raised on behalf of the petitioner and I have gone through the impugned judgment of the second appellate court. The second appellate court while dealing with the claims of the parties has made the following observations in its order vide para 5 :- "The point raised before me has been dealt with by the learned Commissioner who has taken the view that any Assistant Collector of the 1st Class could decide the present suit by virtue of section 258 of the U. P. Tenancy Act. This view cannot be sustained as section 258 is merely of a general nature while section 179 of the Act provides specifically the procedure to be followed in the disposal of a case under section 175. This specific provision must override the general provision. 6. In my opinion the second appellate court has patently erred in holding that the provisions of section 258 of the U. P. Tenancy Act would not be applicable to the facts and circumstances of the present case. Section 258 of the U. P. Tenancy Act, 1939 reads as below " An Assistant Collector of 1st class shall have power to dispose of all suits specified in Group 'A' and 'B' of IVth Schedule. " Serial No. 17 Group 'B' of IVth Schedule contemplates proceedings under section 179 of the U. P. Tenancy Act. Therefore, I think that the Trial Court had jurisdiction to deal with the claims of the parties in the present case under section 179 of the U. P. Tenancy Act. " Serial No. 17 Group 'B' of IVth Schedule contemplates proceedings under section 179 of the U. P. Tenancy Act. Therefore, I think that the Trial Court had jurisdiction to deal with the claims of the parties in the present case under section 179 of the U. P. Tenancy Act. No doubt section 179 of U. P. Tenancy Act provides the procedure where the tenant contest the notice and in the present case the tenant had contested the notice and the case was transferred from the court of Assistant Collector Incharge of Tarai Sob Division. The learned Member is under wrong notion that section 258 of U. P. Tenancy Act is merely of a general nature. To my mind section 258 deals with the case contemplated under section 179 of the U. P. Tenancy Act. Section 258 of the U. P. Tenancy Act comes after the provisions of section 179 of the Act and it is well known that latter provision prevails over the former and from this angle also the observation made by the learned Member in his judgment in paragraph 5 are not correct. Moreover, section 258 of the U. P. Tenancy Act specifically provides that an Assistant Collector shall have power to dispose of all suits specified in Group 'A' and 'B' of the IVth Schedule Therefore, the aforesaid section cannot be termed as of a general nature rather it contemplates specified suits to be tried by the officer mentioned therein. To my mind the second appellate court has erred in observing that section 258 of the U. P. Tenancy Act would not apply to the facts and circumstances of the present case. It is note-worthy that second appellate court has not considered an important aspect whether the question of jurisdiction should be entertained at the instance of the plaintiff at the stage of second appeal, when the plaintiff failed to rake up that point before the Trial court and had raised the point when the decision on merits has gone against him. However, I am not basing my judgment on this aspect of the matter because by consenting no body can confer jurisdiction upon a court if it had none. 7. However, I am not basing my judgment on this aspect of the matter because by consenting no body can confer jurisdiction upon a court if it had none. 7. In the circumstances of the present case it was required of the second appellate court to have also indicated whether the plaintiff's suit was maintainable under section 175 of the U. P. Tenancy Act or not. As this aspect of the matter has not been dealt with I think it proper to quash the impugned judgment and ask the second appellate court to deal with the claims of the parties on merits also. 8. In the result the writ petition succeeds and the impugned judgment of the second appellate court dated 20/21-2-1978 is hereby quashed and the second appellate court is directed to deal with the claims of the parties strictly in accordance with law. There could the no order as to costs. Petition allowed.