Wort, A C J - (1.)This is an appeal from an order of the District Judge of Monghyr dismissing summarily under Order 41, Rule 11, an application by the plaintiff to appeal from the decision of the Subordinate Judge of Monghyr, in an action in which the plaintiff questioned the validity of certain alienations, or to be more exact leases granted to the defendants by a former mahant. It would appear that the plaintiff was the chela of the Guru Mahant Jagannath Das, shortly before whose death disputes arose between the plaintiff and the mahant. These disputes appear to have been settled by an ekrarnama under which the succession to the asthal was granted to the plaintiff. The former mahant died in November 1931, and shortly after that disputes began to arise between the persons who had been settled on the land in dispute, the settlement to which I have just referred, with the result that certain proceedings were brought under Section 145 Criminal P.C, which were decided in favour of those persons. Hence the suit out of which this appeal arises. One of the questions which has been argued before us is that the appeal is not competent and in support of this argument, reliance is placed upon the decision of the learned Chief Justice and Varma, J. in Makhu Sahu V/s. Kamta Prasad Sahu 1934 Pat 341. There, under the revisional powers of this Court, a question was raised as to whether a Judge dismissing an appeal summarily under Order 41, Rule 11 was refusing to exercise his jurisdiction by refraining to state the views which he held of the case in a formal judgment. The decision of the Court was against that contention; but in the course of his judgment, the learned Chief Justice made this statement: In so far as the Courts in this province are concerned, there is, so far as I know, no practice of requiring lower appellate Courts to write judgments in support of orders under Order 41, Rule 11. There is no appeal from such orders and in dealing with such an order under a petition for revision the High Court should merely examine the matter presented to the lower appellate Court.
(2.)It was upon that observation that Mr. Sarju Prasad, appearing on behalf of the respondents, placed reliance for his contention that the appeal before us is not competent. In my judgment, however this is not a case in which we could properly decide that question having regard to the view which I take of the order of the learned District Judge. It will be seen from a perusal of the judgment of the trial Court that somewhat elaborate questions of fact fell to be decided, and also a question of law, perhaps not quite so serious, as to whether the mahant had power to make the grants to which I have referred, assuming for the purpose of that point that grants had in fact been made. But that rather indicates the seriousness of the step which the learned District Judge took in dismissing the application summarily. The matter is, as I have indicated, very largely a question of fact over which this Court has no jurisdiction in second appeal and it is somewhat surprising in the circumstances, therefore that the learned Judge took the course which I have stated he adopted. In the circumstances the case seemed to be one where an appellate judgment was called for. I think therefore that the learned Judge was wrong in dismissing it summarily. As already pointed out, this is a second appeal to this Court. But having regard to the view which I take of the order of the learned Judge, and having regard to the fact that I do not propose to decide the question of whether a second appeal lies in a matter of this kind, I propose to deal with this appeal as an application in revision under Section 115, Civil P.C. Doing so in no way conflicts with the decision of the Division Court presided over by the learned Chief Justice to the effect that it was unnecessary for the learned Judge to express reasons for dismissing a case summarily under Order 41, Rule 11, Civil P.C. Treating this case as a rule under Section 115, I make the rule absolute and direct that the case be remanded to be heard and determined according to law. Hearing fee three gold mohurs. Dhavle, J.
(3.)I agree.