Decided on June 05,1958

Digambar Kalita Appellant
Sibnath Chakravarty And Ors Respondents


- (1.)This is an (sic) framed certain additional issues and directed the Subordinate Judge to dispose of the remaining issues as well as the additional issues framed by him.
(2.)The facts briefly are that the Appellant brought a suit for declaration of his title and recovery of khas possession by eviction of the Defendant. The land in suit consists of 1 katha and 10 lechas of and appertaining to dag No. 4465 of periodic patta No. 1288 of Ganhati town. Prior to the last re-settlement, the land was included in the old periodic patta No. 52. The suit land originally belonged to the Defendant No. 3, Ratikanta Tamuli, and on 17-12-54 he let out the land to the Defendant No. 2, Purnadhar Barmah, for a period of ten years. At that time, there were some trees standing on the land. The said lease commenced on 1-1-1945, and on 9-11-1945, the Defendant No. 2 sublet the land to the Defendant No. 1, Sibnath Chakrabarty, by executing a registered sub-lease for the remaining term of the lease.
The Defendant No. 1, after taking the lease, erected a residential house on the land and remained in possession thereof for the remaining period of the sub-lease. The lease of the Defendant No. 3 as well as the sub-lease of the Defendant No. 1 expired and the Plaintiff purchased the land on 25-1-1955 from the Defendant No. 3 for a sum of Rs. 3,700.00 under a registered deed of sale. The Defendant No. 3 sent a registered notice to both the Defendants 1 and 2 and directed them to hand over vacant possession of the land to him. The registered notice was issued to the Defendants on 4-2-55 asking them to vacate the land within fifteen days of receipt thereof.

(3.)The Defendants received the notice on 8-2-55, and the Defendant No. 2, on receipt of the notice, executed a registered deed of surrender in favour of the Plaintiff on 10-6-55. The Defendant No. 2 also directed the Defendant No. 1 to make over possession to the Plaintiff, but the Defendant No. 1 did not vacate the land. On these facts, the present suit was brought by the Plaintiff Appellant for declaration of his title and recovery of possession. The suit was contested only by Defendant No. 1 on various grounds. It is not necessary to refer to the other points taken by the Defendant No. 1 because those are concluded by the concurrent findings of the two Courts below against the Defendant No. 1.
The only point which found favour with the lower appellate Court was that the Defendant No. 1 was a tenant and, therefore, he was entitled to protection from ejectment under Sec. 5 or the Assam Non-Agricultural Urban Areas Tenancy Act (Act 12 of 1955). The trial Court held that the Defendant No. 1 was not a tenant and consequently he was not entitled to the protection from eviction under Sec. 5 of the said Act. But, on appeal, the appellate Court did not agree with the findings of the trial Court and held that the Defendant No. 1 was a tenant and was entitled to such protection. On these findings, it set aside the decision of the trial Court and remanded the case to the trial Court for disposal according to law and for decision of the additional issues. The two additional issues framed by it are:

(1) Whether the structure built by the Defendant No. 1 on the suit laud can be regarded as permanent in relation to the locality in which the suit land is situated

(2) Whether the improvement effected by the Defendant No. 1 is reasonable improvement. If so, what is the value of the improvement so effected It is against this order that the present appeal has been filed.

(3) A preliminary objection was taken by the Defendant Respondent that no appeal lies against the above-mentioned order of the lower appellate Court. The contention was that it was not a remand under Order 41, Rule 23 of the Code of Civil Procedure and consequently no appeal lay under Order 43 of the Code of Civil Procedure. The appeal has been filed as a Second Appeal, and the order was treated as a decree by the Plaintiff. The Plaintiff, however, by way of precaution, also filed a revision application which can be disposed of along with this appeal. We however, think that there is no substance in this preliminary objection. Order 41, Rule 23 is in these terms:

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 what 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.

The appellate Court purported to act under Order 41, Rule 23, C.P. Code, inasmuch as in its opinion the trial Court had not disposed of the suit on all the issues. According to the appellate Court, the trial Court had disposed of the suit on the preliminary question that the Defendant No. 1 was not a tenant and was not thus entitled to protection under Sec. 5 of the Act. In this view of the case an appeal lay under Order 43 and we will treat this Second Appeal as one filed under Order 43 of the Code of Civil Procedure.

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