K. P. Singh, J. - (1.) :-
(2.) THIS writ petition arises out of proceedings under section 175 of the U. P. Tenancy Act. 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 paintiff 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. 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. 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.;