Swaran vs Gram Panchayat, Malikpur

V.S. Aggarwal, J.—The short question that arises for consideration in the present revision petition is as to if an appeal against the order passed by the learned Senior Sub Judge, Kaithal was maintainable to the Court of learned Additional District Judge or not ?

The relevant facts are that Swaran and Ram Kumar petitioners had filed a civil suit to restrain respondentGram Panchayat Malikpur from interfering in their possession over the suit land situated within the revenue estate of village Malikpur. It was asserted that the suit land alongwith other land was previously entered as the ownership of Gram Panchayat on coming into force the Punjab Village and Common Land Act. However, vide mutation dated 23.12.1964 the same was excluded from the ownership of Gram Panchayat on basis of the amendment in the Punjab Village Common Land and Regulation Act, 1960. Petitioner Swaran had filed a civil suit in the court of learned Sub Judge, Kaithal for a declaration and permanent injunction in respect of total land including the suit land. The suit was dismissed on 1.3.1971. An appeal was filed which was accepted by the learned District Judge Karnal on 28.10.1972. RespondentGram Panchayat, Malikpur was restrained by means of permanent injunction from interfering in the possession of petitioner No. 1. Ram Kumar petitioner No. 2 is the son of petitioner No. 1. They contend that they are still in actual cultivating possession of the land and the respondent has no right, title or interest therein. It is also their case the respondent in collusion with the revenue officials got a wrong entry made in column No. 9 of the jamabandi that possession of petitioner No. 2 is that of a tenant. Similar wrong entry has been made in the Khasra Girdawari. It was asserted that keeping in view the judgment and the decree passed by the learned District Judge, entries were palpably wrong and not binding on their rights. The respondent was threatening to take forcible possession of the land. Hence, the suit had been filed.

The respondent contested the said suit and it was asserted that petitioners have no locus standi to file the suit and that the civil court has no jurisdiction to try the suit.

Certain issues were framed and the learned Senior Sub Judge treated the issue as to if the civil court has the jurisdiction to try the suit or not, as a preliminary issue. Vide order passed on 12.9.1995 the learned Senior Subordinate Judge, Kaithal held that civil court has the jurisdiction to try the case on merits; or in other words the objection of the respondent was overruled. The respondent preferred an appeal in the Court of Additional District Judge, Kaithal. On 26.10.1995 the order of the learned trial court was upheld. It was held that the civil court has the jurisdiction to try the suit. The appeal accordingly was dismissed.

Subsequently, Gram Panchayat Malikpur filed a review application. It came up for consideration before the learned Additional District Judge and on 6.12.1996 the review petition was allowed. The order passed by the learned trial Court was set aside and it was held that civil court has no jurisdiction to try the suit. Aggrieved by the same, the present revision petition has been filed.

The only point urged by learned counsel for the petitioners was that no appeal was maintainable against the order of the learned Senior Subordinate Judge because according to him it was not a decree or a judgment or further that it was neither an appealable order. According to him there can be no appeal against a finding.

Under the Code of Civil Procedure, Section 96 prescribes for appeals from original decrees passed by the Courts exercising the original jurisdiction. The expression "decree" has been explained in subsection (2) of Section 2 of the Code of Civil Procedure and reads :

"(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within (***) section 144, but shall not include

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation. A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."

It is obvious from aforesaid that decree means a formal expression of an adjudication which conclusively determines the rights of the parties. Deciding only one point or giving a finding on another issue certainly will not be a decree of the Court. Therefore, Section 96 of the Code of Civil Procedure does not come to the rescue of the respondent.

Certain appeals are also prescribed against the orders that are passed by the civil court. Section 104 of the Code of Civil Procedure reads :

"104. Orders from which appeal lies. (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders :

(ff) an order under section 35A;

(ffa) an order under Section 91 or section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be;

(g) an order under section 95;

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i) any order made under rules from which an appeal is expressly allowed by rules;

(Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a lesser amount, ought to have been made.)"

Similarly, under Order 43, Rule 1 certain appeals are prescribed for certain orders but appeal is not prescribed against an order deciding a preliminary issue. Reference in this connection can well be made to the case of Manash Ranjan Chakravarty v. Tropical Accumulators Ltd., AIR 1957 Calcutta 135. It was held that where a court decides a preliminary issue that it has jurisdiction to try the suit, the order passed is neither a decree nor an appealable order under Order 43, Rule 1 of the Code of Civil Procedure. One finds in respectful agreement with the said view because no appeal would be maintainable against a finding. Once there is no appeal which is maintainable, the order passed by the learned Additional District Judge cannot be sustained. They necessarily must fail and are set aside. It must be held that the same were without jurisdiction. The remedy, if any, to the aggrieved person would be to file a revision petition against the order passed by the learned Senior Subordinate Judge.

With these observations, the revision petition is allowed. The impugned judgments of the learned Additional District Judge are set aside.