JUDGMENT
Debi Prasad Sarkar-II, J.
1. This is a revisional application under Section 115 of the CPC. The facts, in short, are as follows;-
2. That on 8.10.66 a Misc. Case under Section 26 F of the B.T. Act was filed for pre-emption but it was dismissed. In Appeal it was allowed and the present Opposite party entered into possession of the disputed land. The present petitioner-party then filed a Writ petition challenging the order passed in Misc. Appeal before the Single Bench of Calcutta High Court. But that Writ petition was also dismissed. Against that, FMAT No. 495/68 was filed and it was allowed by the Division Bench. Thereafter in C.R. No. 3624 Justice A.K. Sengupta made absolute the Judgment passed by the learned lower Court and set aside the Judgment of the Appellate Court. The present petitioner-party filed and application under Section 144 of the CPC for restitution and for damages since 1967. On the other hand, the present Opposite party filed an application before Justice A.K. Sengupta for recalling his order but that application was also dismissed. In the Misc. Case under Section 144 of the CPC possession of the present petitioner-party was restored and an amount of compensation of Rs. 16,920/- was allowed by the learned Munsif in place of the claim for Rs. 25,280/-. An Appeal was preferred by the Opposite party before the learned Assistant District Judge who set aside the order of the learned Munsif mainly on the ground that the learned Munsif assessed the compensation not according to law.
3. On being aggrieved the present revisional application has been filed, inter alia, on the grounds, that the learned Asstt. District Judge failed to appreciate the points of the law and facts involved.
4. The Opposite Party contested the matter hotly.
5. After hearing the submission of the learned Advocates of both the parties and on perusal of the record, I find, that the learned Asstt. District Judge virtually closed the chapter of claim by his Judgment. But in terms of Article 144 a person, dispossessed by an order of the Court, Is entitled to get restitution if that order is reversed or set aside and not only restitution, such person is also entitled to get compensation for the period of his dispossession.
6. In the instant case, the learned Munsif granted twelve years claim . although the claim was for eighteen years. I do not find the basis of calculation of the compensation in the body of the Judgment or at least any reasonable method applied by the learned Munsif.
7. In my consideration, in order to assess the compensation it is necessary to ascertain the nature and the productivity of the dispute land and also to ascertain the total production from the disputed land with reference to the ajolnlng lands year to year, at the same time taking into consideration also the natural calamity like, drought, flood etc. Next, it is necessary to ascertain the prevailing market price of the produce every year and lastly to calculate the total cost of cultivation. Thereafter, making addition, multiplication and substruction the amount of compensation can be reasonably arrived at. This can hardly be done by the Court sitting on , the ejlash. The procedure usually followed is to appoint a Commissioner who will do the job for the Court and submit a report. The learned Advocate 1 on both sides do not dispute such procedure. But the learned Advocate for the Opposite party has raised a question of law that the impugned order being order under Section 144 CPC is a ‘decree’ under the deeming clause and as such Misc. Appeal was filed before the learned District Judge; accordingly, the present petitioner ought to have come in second Miscellaneous Appeal and not in revision under Section 115 CPC. The learned Advocate for the Opposite party has thus challenged the legality of the revlsional application as a whole. The learned Advocate for the petitioner, on the other hand, has argued that there is no provision for filing second Miscellaneous Appeal and as such in the absence of any such provision revisional application is maintainable.
8. On this point I find that in the daily cause list published by this High Court showing the determination of different Judges contains reference of second Miscellaneous Appeal. Therefore, I think it is not correct to say that there is no provisions for filing second Miscellaneous Appeal in the High Court against the order passed by the 1st Appellate Court in a Miscellaneous Appeal. The decision referred to by the learned Advocate for the petitioner is not strictly application to the present matter. The second judgment referred to by the learned Advocate for the petitioner as , rather has laid down that the deeming provision must be given full effect This view has further been elaborated by the Supreme Court in Its decision reported in ICC 1996(2) 424 SC. It Is laid down by the Supreme Court “it is to be noted that what is to be deemed is a matter of fact. There is a ‘deeming fiction. It is also to be noted that when a fact is to be deemed, its consequences and incidences are also to be deemed; that is to say, what follows from the deemed facts is also to be deemed”.-(Paragraph-12).
9. In view of the decision of the Apex Court when Miscellaneous Appeal is maintainable against the deeming decree passed under Section 144 CPC, other consequences and incidences are to follow as also part of the deemed facts. That means deeming decree is subjected to an Appeal and as an incidence of Appeal it is also subjected to a second Appeal. Therefore, the impugned order passed by the first Appellate Court in the Miscellaneous Appeal against the deeming decree passed under Section 144 of the CPC by the learned Trial Court, is also liable to be challenged in second Miscellaneous Appeal. That course of Appeal not being barred under the law, revisional application is not maintainable. It is well settled by the decision of the Supreme Court that an Appeal in the guise of a revision cannot be entertained by the High Court. In the instant case. I feel constrained to hold that this revisional case under Section 115 of the CPC is nothing but a second Miscellaneous Appeal in disguise and as such the present revisional application is not maintainable.
10. The revisional case is accordingly dismissed.