Maskandar Ali and Others vs Rashid Ali and Others

Ram Labhaya, J.—This is an appeal from the order of the Sub-Judge, Cachar, dated 10th May 1949 dismissing an appeal from the order of the Munsiff of Karimganj dated 30th August 1948 in Misc. Case No. 116 of 1947.

The appeal arises out of miscellaneous proceedings u/s 33, Sylhet Tenancy Act. The appeal was dismissed on the ground that the order of the learned Munsiff was not appealable. In coming to this conclusion, the learned Sub-Judge relied on Narendra Lal v. Rabindra Lal, 51 cal. W. N. 673. The correctness of the view of the law that has prevailed with the learned Sub-Judge is assailed before us.

Section 33, Sylhet Tenancy Act, proscribes the procedure for an immediate landlord for the exercise of his pre-emptive right if a notice is served on him u/s 30 or Section 32. Orders passed on an application u/s 88 have not been made expressly appealable. Section 147 of chap. 10 of the Act, which deals with judicial procedure, provides for appeals in certain cases. It lays down that:

Subject to the provisions of Section 132, the Court having jurisdiction to determine a suit for possession of land may, on the application either of the landlord or the tenant of the land, determine all or any of the following matters.

Then follows a list of matters which may be determined at the instance of the landlord or the tenant under this section. It is claimed that sub-cl. (e) of Section 147, Clause (1) covers the matter now before us and therefore the order was appelable. Sub-cl. (e) deals with "any other incident of the tenancy," viz., incident not specifically mentioned in the preceding sub-clauses.

We do not find any force in this contention. Section 33 deals with the pre-emptive right of a landlord. That right can be exercised against a transferee. The disputes directly covered by Section 33 would not normally relate to any incident of the tenancy. It is however possible that in cases covered by Section 33 some question as to the incident of a tenancy may crop up incidentally. Even that need not necessarily convert the entire dispute into a matter which Sub-clause (e) of Clause (sic) Section 147, Sylhet Tenancy Act, would cover. But in this case that difficulty does not arise. No incident of tenancy was in dispute in the trial Court. The learned Sub Judge, therefore, was perfectly right in holding that the matter was not covered by Section 147 and that it was otherwise not appealable. The view that found favour with the learned Sub Judge is supported by Narendra Lal v. Rabindra Lal 51 O. W. N. 673. In that case Akram J. held that:

A decision as to the nature of a tenancy for the purposes of an application u/s 83, Sylhet Tenancy Act cannot be deemed to be an order u/s 147.

In his view it was necessary before a party could avail of the provisions of Section 147. Clause 3, that there must be a substantive application or an order under that section Incidental determination of matters enumerated in sub-cls. (a) to (e) of Section 147 (1) in proceedings u/s 33 would not bring the matters within the ambit of Section 147.

It is not necessary for us in this case to go to that extent. Hero there has been no determination of any matter which could be regarded as an "incident of the tenancy'' In fact, the tenants did not appear at all in the proceedings before the trial Court. They appealed from the decision and contested the claim for the first time in appeal. The view that the order of the learned Munsif was not covered by Section 147(9) is perfectly correct and this appeal, therefore, must fail on the merits.

Mr. Ghose raised a preliminary objection to the competency of the second appeal. The basis of his objection was that orders u/s 33 are not appealable. The appeal itself was dismissed as incompetent. We have come to the conclusion that the view of the learned Sub-Judge is correct, and that there are no grounds for interference with the order on its merits. It is not necessary in these circumstances to give a decision on the preliminary objection though it is clear from the view of the law that we have taken that no second appeal can be competent when the order not being a decree within the meaning of Section 147 is not appealable at all.

The learned Counsel for the appellants has requested that the appeal be treated as a revision. No purpose can be served by treating the appeal as a revision as we have found that on the merits the order of the learned Sub-Judge is correct.

The appeal is dismissed with costs.

Thadani, C. J.

I agree.