- (1.) THIS is a revision preferred under sec. 187 of the Ajmer Tenancy and Land Records Act (No. 42 of 1950) hereinafter referred to as the Act, against an order of the learned Collector, Ajmer dated 8. 7. 58.
(2.) THE facts of the case in brief are that the applicant preferred an application under sec. 104 of the Act to eject the opposite party from the disputed land. THE learned S. D. O. Kekri after framing necessary issues and recording the evidence of the parties accepted the application and ordered the ejectment along with damages. In confirmation proceedings taken under the appropriate provisions of the Act the learned Collector Ajmer, however, vide his order dated 8th July 1958 withheld the confirmation of the order of the learned S. D. O. and remanded the case to him for trial in accordance with the directions given by him. THE observations of the learned Collector are: - "it seems to me that under this section any person may apply for the ejectment of "a person other than a land-holder mentioned in sec. 102, taking or retaining possession of a plot of land otherwise than in accordance with the provisions of this Act" and such a person would be liable to ejectment. THE question for determination in an application under sec. 104 would, therefore, be the liability of the trespasser for ejectment and it is this liability to ejectment which should be tried. THE learned S. D. O. , instead of trying the liability of ejectment of the opposite party Smti. Kanwari, tried to find out whether the applicant had possession over the land or whether he was dispossessed by Smt. Kanwri. As I have already stated that law has laid no qualifications for a person, making an application u/s. 104 it is not the merits of the applicant which are to be tried. What is to be found and determined is whether the opposite party is liable to ejectment and issues should be clearly framed to arrive at a conclusion in this regard. " It is against this order that this revision has been preferred. Both the counsels for the parties appearing before it do concede that the order of remand passed by the learned Collector cannot be up-held in law. An order of remand can be made under the provisions of sec. 184 (iii) of the Act only under the provisions of rule 23 or 25 of Order 41 C. P. C. or under the inherrent powers of the court under sec. 151 C. P. C. Quite manifestly the order of remand under revision does not fall under the provisions of either Rule 23 or 25 of Order 41 C. P. C. It can therefore be only under sec. 151 C. P. C. But as has been vehemently contested by the learned counsel for the applicant and conceded to by the learned counsel for the opposite party also resort to this section has to be made only in very extra-ordinary cir-cumstances. When there is an evidence on the record and even is the appellate court finds that the finding of the trial court is not in accordance therewith the appellate court has got to itself examine the evidence and give its finding. In this case we find that the learned Collector has had to take resort to the remedy of remand because he had somehow or other come to think that under sec. 204 of the Act it is only the liability of ejectment of the trespasser that has alone to be tried and determined irrespective of the title of the applicant to have him ejected. But this is not the correct position in law. It is true that sec. 104 of the Act does not disclose as to who can bring the application under it. But the reading of the sec. 106 of the Act would make it quite clear that it is the tenant and the tenant alone of the disputed land that can bring this application. The relevant portion of sec. 106 dealing with the consequences of failure to file an application under sec. 104 reads that - "if no application is made within the period of limitation prescribed therefore, and the person ejecting the tenant from, or taking or retaining possession of land, otherwise than in accordance with the provisions of this Act cultivates such land such person shall become khud-kasht holder or hereditary tenant as the case might be. " (The word 'tenant' has been underlined by us.) This would make clear that not only the liability of ejectment of the person complained against is to be tried and determined in an application under see. 104 but also the right and title of the person making such an application has got to be tried and determined. It is to be very clearly decided that according to the provisions mentioned above that the applicant is a 'tenant' of the disputed land. We, therefore, accept this revision, set aside the order of the learned Collector, Ajmer and remand the case back to him to re-hear and re-determine it afresh in accordance with law keeping in view of the observations made above. Before parting with the case we would also like to observe that as the confirmation proceedings have to be decided in accordance with the provisions of O. 41 C. P. C. the court has to pass its order in conformity with the provisions thereof. That is to say, while remanding the case to trial court a specific order has to be passed whether the order of the trial court is set aside or not. .;