KISHEN LAL L R OF MOHANLAL Vs. SOHANLAL

JUDGEMENT

(1.) The questions referred to the Full Bench are as follows:

(2.) The facts of the two connected cases out of which this reference has arisen may be stated very shortly for our present purposes. The dispute relates to the succession to the Jagir of Malpuria, Tehsil Sojat, District Pali, and arose on the death of its last holder Ganeshlal. Two rival claims are put forward; one on behalf of Mohanlal appellant in both cases, and the other on behalf of Ambalal and others who were respondents. The former claimed the Jagir as the adopted son of the deceased Ganeshlal while the latter on the ground that they were the next heirs of the deceased, and that the adoption of Mohanlal was void and inoperative so far as succession to the Jagir was concerned, because Mohanlal was outside the line of the original grantee to whom the Jagir was granted by the former State of Jodhpur. Both claimants filed separate suits for a declaration of their respective rights which met with varying fortunes from court to court, and the Chief Court of the former State of Jodhpur dismissed Mohan Lal's suit and decreed the claim of the rival claimants. Mohanlal applied for leave to appeal to the Ijlas-i-Khas, and the Chief Court granted leave in both cases with the result that both appeals came up for hearing before a Division Bench of this Court who have made the present reference.

(3.) It was argued before the learned Judges of the Division Bench, on behalf of the respondents, that the leave to appeal granted by the Chief Court apparently under the Exception to Rule 17 of the Ijlas-i-Khas Rules of 1939 had been erroneously granted and, therefore, the appeals were incompetent. The argument was that the valuation of both the suits was admittedly below Rs. 5000/-and, therefore, Rule 17 (a) did not apply and the Exception to Rule 17 also did not apply as there was no dispute whatsoever in the two suits regarding the tenure in which the Jagir in question was held, and the dispute between the parties merely centred round their rights to succeed to the Jagir. This contention was sought to be met on behalf of the appellants on the authority of --'Hukum Singh v. Bhanwarsingh (A)', where a Division Bench of this Court held in effect that the conditions of the Exception were fulfilled where the dispute related to a right in or to a 'Jagir', and the judgment of the High Court was one of variance from that of the court below and it was not further necessary that there need have been any controversy regarding the tenure in which the Jagir was held. It may be pointed out that the learned Judges there were called upon to deal with the Ijlas-i-Khas Rules of 1945 and its Rule 18(b) which is the corresponding rule to the Exception to Rule 17 of the Rules of 1939 according to which a further condition as to the judgment not being one of affirmance had been prescribed as one of the essential requirements for the applicability of that rule. But the corresponding provision in rule 17 of the Ijlas-i-Khas Rules of 1939 did not contain any such condition and, therefore, nothing turns on this additional qualification so far as the cases before us are concerned. It was contended on the other hand on behalf of the respondent that --'Hukum Singh's case (A)' was wrongly decided inasmuch as it unduly cut down the true import and effect of the Exception to Rule 17 of the Ijlas-i-Khas Rules of 1939, or of the corresponding rule 18(b) of the Rule of 1945, and that we would not be justified in placing an interpretation upon the rule which did violence to is plain language.