KISHORE SINGH Vs. PAHARH SINGH

JUDGEMENT

(1.) This is a petition for leave to appeal to the Supreme Court against the decision of the High Court of Rajasthan dated 14-8-1950, The leave is claimed as a matter of right under exception to Clause (a) of Rule 17, Ijlas-i-khas, Rules, 1939.

(2.) Under the said provision, a decision of the High Court of the covenanting State of Jodhpur was open to appeal if the case related to land and either party pleaded that he held the laud in dispute otherwise than as a cultivating tenant of the opposite parts, and an issue was raised in the case regarding the tenure in which the land was held. It is conceded that the case is not appealable and no leave can he granted if the case fell within Article 133 of the Constitution, and the petition is pressed solely on the aforesaid Ijlas-i-Khas Rules. The Ijlas-i-Khas Rules of 1939 were repealed by the Ijlas-i-Khas Rules of 1946 where it was further provided that even in the cases provided by the exception in Rules of 1939, the appeal must involve a substantial question of Law if the decision of the Court affirms the decree of the lower Court. The learned counsel for the appellants stated that be was prepared to show that a substantial question of law was involved but it is unnecessary to go into that question as the decision has not been given by the High Court of the former Covenanting State of Jodhpur. The decision was given by the Rajasthan High Court established under the Rajasthan High Court Ordinance 1949 (XV [15] of 1949) and the provisions of that Ordinance are only relevant. Under Section 39 of the Ordinance, the Rajpramukh was empowered to constitute a Court to hear appeal against the decisions of the High Court and for that purpose to make such consequential or incidental provisions as may be necessary. Section 40, provided that until a Court referred to in Section 39, was constituted or a Court was constituted under any other law relating to the establishment of a Court superior to the High Court of Rajasthan to hear appeals therefrom, the Rajasthan High Court was to be the highest Court of appeal, reference and revision in the United State of Rajasthan, and no appeal was to lie from any judgment, decree or order of the said High Court.

(3.) Under Section 49, the High Courts of the various Covenanting States were abolished and the pending cases were directed to be transferred to the Rajasthan High Court. The present case was one of such cases.