JUDGMENT

S.C. Manchanda, J. - This first appeal was filed against an order of the District Judge Saharanpur remainder the suit under Order XLI, Rule 23 oF the Code of Civil Procedure filed by the plaintiffs.

2. In this Court on a preliminary objection being raised that as the suit in the present case was filed prior to 1st June 1957 i.e. before the amendment made by this Court to Order XLI no appeal lies against such an order under the provisions of Order XLIII, Rule 1 (u) of the, Code of Civil Procedure. As there was conflict, the question was referred by me to a Division Bench. The Division Bench by its order dated the 13th January 1965 has answered the question by saying that.

"If in a suit instituted before the 1st June 1957 a District Judge passed an order of remand under the enlarged power conferred on appellate courts by the amendment made by Allahabad High Court in Order XLI, Rule 23, Civil Procedure Code such an order of remand is not appealable."

3. The result therefore is that the first appeal from order does not lie. Learned counsel for the plaintiff - appellant has now asked for the first appeal from order to be treated as a revision. This was objected to strenuously by Mr. Avasthi for the respondent considering that the matter was not free from doubt and the F. A. F. O. was filed within the period of limitation which is also now the period of limitation for revisions under the new Limitation Act, and in the interest of justice, I direct that the appeal be treated as a revision.

4. The scope of revision however is a limited one and the only question to be considered is whether there was any material irregularity in the exercise of jurisdiction which would justify interference by this court. The plaintiff applicant had filed a suit for possession and for the recovery of Rs. 4668/12/- as Theka money, for use and occupation, price of the trees and as damages. The property originally belonged to the defendant respondent but under a sale deed dated the 7th of June 1946 it was transferred to the plaintiff and on the same date by means of a lease deed was leased to the defendant for three years from 7-6-1946 to 6-6-1949 on payment of Rs. 712/8/- per annum. In case of default in payment If Theka money for one year the defendant was liable to ejectment from property in suit. The plaintiff claimed that no rent had been paid end therefore he was entitled to possession and for rent and mesneprcots. The defence of defendant No. ho was the contesting defendant as that he had borrowed Rs. 9,500/- om Mr. Jamuna Prasad. The elder brother of Satyarth Prakash the plaintiff and it was Jamuna Prasad ho got the benami sale deed executed in plaintiff's favour by way of security for repayment of the loan. was pleaded that he had supplied licks to Dr. Jamuna Prasad which ere used in the construction of a ionic and therefore he was entitled have the property reconveyed to him.

5. Fifteen issues were struck and ultimately a decree for possession, accept, for one room, and Rs. 3,082/8/- for arrears of rent and by any of use and occupation against defendant No. 1 was passed. In doing so issue No. 2, which was on the question as to whether the sale deed lease deeds in suit were execute benami by the defendant No. 1 in our of the plaintiff for Dr. Jamu a Prasad was also disposed of by building that the deeds Exs. 1 and 2 re not benami in favour of the plaintiff for Dr. Jamuna Prasad and even if such transactions were Betami, defendant No. 1 was estoppel om setting up this plea and challenging the title of the plaintiff.

6. An appeal was filed to the learn d District Judge by defendant No. 1. n the memorandum of appeal it was pacifically mentioned:

"This is an appeal against the judgment and decree ...... in respect of ejectment alone. Valuation the appeal for purposes of jurist ion and court fee is Rs. 120/-."

7. is manifest that the appeal was of directed against the decree of rears of rent, or mesne profits deed in the sum of Rs. 3082/8/- and wa