JYOTISH CHANDRA NATH AND ANR Vs. EJDANI MEA MAJUMDAR AND ORS

JUDGEMENT

(1.) This is a petition under Art. 227 of the Constitution of India and Sec. 115 of the Code of Civil Procedure against an order of the Additional Subordinate Judge, Cachar,, in proceedings arising out of the Assam Adhiars Protection and Regulation Act, 1948, hereinafter called 'the Act'.

(2.) The facts relevant for the decision of the case are that the present Petitioners made an application under Sec. 5 of the Act for ejectment of the opposite parties on the allegation that they were adhiars as defined' under the Act and that they failed to carry out, the terms of the agreement and that their case is covered by the provisions of Sec. 5 of the Act and thus they should be ejected from the land. The matter went up before the Adhiar Board. The Adhiar Board upheld the contention of the present Petitioners and ordered ejectment of the opposite parties. When the matter came up before the Additional Subordinate! Judge in appeal, he came to the conclusion .that the Board has not properly decided the fact that the, opposite. parties were adhiars, and, as on the interpretation of the agreement between the. parties. the Subordinate Judge was of opinion that the opposite parties were not adhiars, he held that: the Board had no jurisdiction to deal with this matter and, in this view of the matter, he allowed the appeal set aside the order of the Adhiar Board. He, however, observed that as in his opinion the opposite parties were not adhiars and the Adhiar Board had no jurisdiction, it was not necessary for him to go into other matters raised by the opposite parties in the proceedings. It is against this order hat the present petition has been hied under Art. 227 of the Constitution. When the matter came up before me sitting singly, a point was taken, by the learned Counsel for the opposite parties that no petition under Art. 227 of the Constitution is maintainable. As it was considered that the point raised is of some importance, the matter was referred to a Special Bench. It is under thesis circumstances that the present Bench has been constituted.

(3.) The contention raised by the learned Counsel for the Petitioners is that as the jurisdiction of the Adhiar Board and the appellate authority depended upon the existence of the fact that the opposite parties were adhiars, the question whether the opposite parties were adhiars or not was a jurisdictional fact and any decision by the Courts below on this question is examinable by this Court under Art. 227 of the Constitution. If on examination of this question this Court is of opinion that the decision is erroneous, then the Courts below exercised their powers without any jurisdiction and the decision will be without jurisdiction and this Court can under Art. 227 of the Constitution interfere with that decision. Then it is contended by the Petitioners that the decision of the Court below that on the plain interpretation of the agreement the opposite parties were not adhiars of the present Petitioners is erroneous. The opposite parties have raised a preliminary point and have contended that the decision that the opposite parties were not adhiars is a decision which was within the jurisdiction of the Additional Subordinate Judge and any decision thus given by the Additional Subordinate Judge on this point howsoever erroneous it may be cannot be interfered with by this Court under Art. 227 of he Constitution. The point, whether the opposite parties are adhiars or not cannot be regarded as a jurisdictional point and any decision given: by the Courts below on that point will be final and not examinable by this Court under Art. 227 of the Constitution. It is further contend that even if Art. 227 of the Constitution is attracted and this Court can examine the judicial orders also, it is not a case where this Court will exercise its powers under Art. 227 of the Constitution.