1. The questions of fact have been decided by the lower appellate Court against the appellants (defendants 2 to 6) and we are bound by the lower Court's said finding of fact.
2. As regards the contention that defendants as tenants are entitled to notice to quit, it was found by the Munsif that the defendants were tenants of plaintiffs' vendor's mortgagees, that their lease term expired two months before this suit was brought and that hence no notice to quit was necessary.
3. The defendants did not in their appeal memorandum to the lower appellate Court object to the finding of the Munsif, that they were not plaintiffs' or plaintiffs' vendor's (defendant 1's) lessees after they attorney to defendant 1's mortgagee. On that finding, the plaintiff, who was not their landlord when their illegal possession commenced in May 1903, was not bound to give them notice to quit.
4. The contention most strongly pressed by the appellant's learned counsel was that the Subordinate Judge who heard the appeal had no jurisdiction to hear it as the High Court remanded the appeal for hearing by the District Court and the District Court had no power to transfer such a remanded appeal for disposal to the Subordinate Judge. We might here state that the appellants raised no objection either before the District Court or before the Subordinate Judge's Court to the validity of the order of transfer. Under those circumstances we hold on the authority of the case of Gurdeo Singh v. Chandrikah Singh and Chandrikah Singh v. Rashbihary Singh(1), that the Subordinate Judge's inherent jurisdiction was (patting it at the worst) merely exercised irregularly and that the irregularity has not affected the merits (Section 99 of the CPC,) We might add that considering the more comprehensive language of Section 24 of the new CPC, (corresponding to S. 25, of the old Code) the District Court's powers of transfer are much wider than under the old law. We refer to the addition of the words “at any stage”, and of the words appeal or other proceedings in the new Code as well as the new Cl. (1)(b)(iii) and the new Cl. (2).
5. Even under the old Code we are not satisfied that the observations in Sita Ram…(Plaintiff); v. Nauni Dulaiya…(Defendant).*(2), about S. 25 not applying to cases remanded under S. 562, and the similar observations in Chowdhry Hamedoollah v. Muteeoonissa Bibee(3) are not in the nature of obiter dicta: see Tarucknath Mookerjee v. Gouree Churn Mookerjee(4), contra: even if they are not explained away by the observations in Gurdeo Singh v. Chandrika Singh and Chandrika Singh v. Rashbihary Singh.
6. In the result, the second appeal fails and is dismissed with costs.
S.N/R.K
7. Appeal dismissed.