- (1.) UMESHWAR Pandey, J. Heard Sri Murlidhar, Senior Advocate, assisted by Sri H. P. Pandey, on behalf of the appellant and Sri M. A. Qadeer, learned Counsel for the respondents. Learned Counsel for the parties agree that this appeal shall be heard and finally disposed of at this stage.
(2.) IN the present matter, the trial Court i. e. Assistant Collector first class in a suit under Section 171 of U. P. Tenancy Act (hereinafter referred to as the 'act') has framed preliminary issue No. 7 for decision and has decided it holding that since the property in question, which is an 'abadi' land, the jurisdiction in regard thereto for the relief claimed in the plaint is not available with the revenue Court presided over by the Assistant Collector. This sort of relief can be granted only by the Civil Court and that suit for possession should have been filed only in that Court. Accordingly, holding that the suit being not maintainable before the Assistant Collector, the trial Court has passed the impugned judgment and dismissed the suit vide its order dated 18-8-1993. Against this decision of the Assistant Collector, an appeal under Section 265 (3) of the Act was instituted before the Additional District Judge and the point was raised there that the trial Court instead of dismissing the suit for want of jurisdiction and bad presentation, should have passed an order, as contemplated under Order 7 Rule 10 C. P. C. directing the return of plaint for proper presentation. The order challenged in the appeal was therefore, erroneous and it should be set aside and the appeal should be allowed. On contest from the other side and after hearing both the parties, the lower appellate Court by a detailed judgment has dismissed this appeal holding that the suit was not maintainable and that the order passed by the trial Court dismissing the same is not challengable in the appeal. Sri Murlidhar, Senior Advocate, while assailing the judgment and order of the lower appellate Court, has made much stress upon the fact that ignoring the provision of Order 7 Rule 10, C. P. C. both the Courts have illegally passed the orders. The lower appellate Court while affirming the judgment of the trial Court has also ignored the basic provisions of the procedure aforesaid and instead of dismissing the suit and appeal of the appellant- plaintiff the directions should have been given for the return of the plaint for proper presentation before the competent Court of jurisdiction. In reply to the aforesaid submission of Sri Murlidhar, the Senior Advocate, Sri M. A. Qadeer, learned Counsel for the respondents, has submitted that the provisions of sub-section (3) of Section 265 of the Act have to be read alongwith provisions of sub-section (1) and (2) also and since the suit did not come in the category of cases, which are included and dealt with in sub- section (1), the appeal itself, which was filed by the appellant before the lower appellate Court, was not proper. The appeal against the judgment of the trial Court in the present matter was to be dealt with under sub-section (2) of Section 265 of the Act and the appeal was competent only before the Commissioner and not the District Judge. Therefore, if the said appeal has been dismissed by the lower appellate Court, no fault with the same can be found out.
(3.) I do not agree with the submission of Sri Qadeer in the present context. Sub-section (1) of Section 265 of the Act deals with the appeals, which are to be presented challenging the decree passed by the Assistant Collector first Class before the District Judge. It deals with the category of cases, which are given in Group 'a' of 4th Schedule of the Act. The category of cases in which the decree is passed by the Assistant Collector belonging to Group 'b' of the aforesaid Schedule, the provisions of appeal have to be governed by sub-section (2) and such appeal shall lie before the Commissioner. These two sub-sections (1) and (2) of Section 265 of the Act deal with the separate jurisdiction of the District Judge and Commissioner before whom an appeal from the decree of Assistant Collector shall be presented. But sub- section (3) is entirely independent to these two sub-sections (1) and (2 ). For ready reference sub- section (3) is quoted as below : "an appeal shall lie to the District Judge from the decree of an Assistant Collector of the first class or of a Collector in all suits, in which a question of jurisdiction has been decided and is in issue in the appeal : Provided that, when the amount or value of the subject-matter of the suits exceeds five thousand rupees, the appeal shall lie to the High Court or the Chief Court, as the case may be. " Since the aforesaid provisions of sub-section (3) specifically have a clause touching all the suits in which the decree has been passed by the Assistant Collector first class deciding the question of jurisdiction and it is in issue in appeal, such appeal shall lie only before the District Judge. It excludes the jurisdiction of other appellate Court for entertaining such appeal. This is why sub-section (2) in its first clause itself is specifically made subject to the provisions of sub-section (3) of Section 265 of the Act. This clause of sub-section makes it more than obvious that it is not sub-section (3), which is subject to the provisions of sub-sections (1) and (2) but actually sub- sections (1) and (2) are subject to the provisions of sub-section (3) of Section 265 of the Act. In all suits whether it pertains to Group 'a' or 'b' of the 4th Schedule, if the question has been decided by the Assistant Collector with regard to jurisdiction of the Court, the appeal shall lie with the District Judge and not with the Collector or with Commissioner. The submissions made in this regard from the side of the respondents are actually not acceptable.;