BHAGLA Vs. ZOR SINGH

JUDGEMENT

(1.) THIS reference has arisen as a consequence of divergence of opinion between the learned Members, Shri Gajendra Singh and Shri S. L Kakar, while disposing of the second appeal preferred against the judgment and decree passed by the learned Revenue Appellate Authority Jaipur on 2-4-64. In accordance with the procedure laid down in sec. 13 (2) of the Rajasthan Land Revenue Act, the case was submitted to the Chairman, Board of Revenue for reference to another Member of the Board for decision in accordance with the opinion of the majority of the Members who heard it. Eventually the case came up for hearing on 30-12-69 before the learned Member, Shri Niranjan Singh.

(2.) A preliminary objection was raised on behalf of the respondents that sec. 98 (2) of the C. P. C. provided that where in an appeal heard by a bench of two or more Judges, there is no majority of opinion to decide the appeal, the decree of the lower court shall be confirmed. It was contended that in the instant case the procedure laid down in sec. 98 (2) of the C. P. C. had not been followed since the learned Members had not made any statement on the point of law on which they had differed and, therefore, the decree of the lower court should be confirmed.

(3.) THE inconsistency between the provisions of these two sections relates to the fact that whereas in terms of Sec 224 of the Rajasthan Tenancy Act, an appeal would lie to the Board if the decision is contrary to the wight of evidence on record where the lower appellate court has varied or reversed any finding of the trial court on a question of fact, there is no such provision in Sec. 100 of the G. P. G. He contended that on the same analogy the provisions of Sec. 13 (2) of the Land Revenue Act will apply to the exclusion of the provisions of Sec. 98 C. P. C. in view of the inconsistency between the procedure laid down under these sections. Drawing our attention to the definition of the Board of Revenue given in Sec. 5 sub-clause 6 of the Rajasthan Tenancy Act, the learned counsel urged the Board will function in accordance with the procedure laid down in Chapter II of the Land Revenue Act and exercise its jurisdiction as prescribed in this Chapter. He further averred that the Board is a creature of the Land Revenue Act and derives its source of power from this statute and that the provisions incorporated in Chapter II of the Land Revenue Act so far as they are not inconsistent with any provision of the Tenancy Act shall operate in full vigour.