GANGA RAM Vs. KISHAR LAL

JUDGEMENT

(1.) PER Shri Ujjwal, Chairman and Shri Balwant Singh This is a reference by the Division Bench consisting of Shri R. N. Madhok and Z. S. Jhala to the Chairman for constituting a full bench for a pronouncement on the following points: - (1) Whether the order passed by Shri Shyamlal in the present case is a legal order within the meaning of rule 10 of the Revenue Courts Manual, Part I; (2) If the answer to (1) is in the negative, how should the case be proceeded with further? Briefly stated the facts of the case are that the present respondents instituted a suit in the court of the Assistant Collector, Tonk for ejectment under sec. 183 (b) of the Rajasthan Tenancy Act in respect of the land in dispute khasra Nos. 294, 196/2820 196/2821 and 221 of village Khatmana, Tehsil Tonk. The respondents alleged that in respect of first three khasra numbers mentioned above they were the khatedar tenants and in respect of the last mentioned they were sub-tenants. It was further alleged by them that in Smt. 2009 the appellants agreed to construct a well for irrigation purposes and in lieu thereof ten bighas of pucca land (khasra No. 221) were given to them for cultivation. The respondent alleged that the appellants wrongfully took possession over the other khasra numbers as well and hence it was prayed that a decree for ejectment be passed against them. The appellants denied the suit and pleaded that they were the khatedar tenants of the disputed land. The trial court framed the following issues: - (1) Are the plaintiffs tenants of khasra Nos. 224, 196/282 and 196/2821 and were they in possession till last year? (2) Have the defendants wrongfully taken possession over the disputed land and are therefore liable to ejectment? (3) From which khasra No. 10 bighas of land was given over to the defendants in lieu of construction of a well; from khasra No. 221 or from khasra No. 224, 196/2820 and 196/2821? (4) Did the plaintiffs hand over 10 bighas of land from khasra Nos. 224, 196/2820 and 196/2821 to defendant No. 1 in Smt. 2010 and has the defendant acquired the status of a khatedar tenant in respect thereo? (5) Is the suit bad for mis-joinder of parties? (6) To what relief are the plaintiffs entitled? The trial court without recording separate findings on the issues mentioned above dismissed the suit after a brief discussion of the evidence. In first appeal objections were raised to the effect that the trial court had not given proper attention to the disputed points and that the judgment was not a proper one. The learned Additional Commissioner, however, held that "it was the duty of the trial court to frame one more issue to the effect ''whether the defendants are in possession of the land comprising No. 221 as tenants and in their own right". The appeal was, therefore, allowed and the case was remanded with the direction to frame an additional issue, to record fresh evidence of the parties and thereafter to decide it again. The Division Bench which heard the second appeal could not come to a unanimous view. Shri R. N. Hawa, a learned Member of the Bench was of the opinion that the points suggested by the learned Additional Commissioner for a fresh issue stood already covered in issues No. 2 and 3 framed by the trial court and as such a remand was unnecessary. He was, therefore, of the opinion that the appeal should be allowed and the order of the lower court should be set aside and the case should be remanded to it with the direction that the appeal filed before it should be heard and decided on merits. The Other learned Member Shri Khem Chand did not examine this aspect of the case. He was of the opinion that the question as to whether a fresh issue was required to determine the controversy or not was purely a question of fact and as such no second appeal would lie on the point. This aspect of the case does not appear to have been examined by the other learned member. But by implication it may be inferred from the judgments that the other learned member would not have taken this view. Thus the point on which the learned members are divided in their opinion in this appeal was "whether a question regarding scope of the issues framed in a suit should be deemed to be a question of fact on which second appeal did not lie. "

(2.) THE learned Chairman Shri Shyamlal after careful consideration came to the conclusion that the question whether the first appellate court in the present case properly appreciated the scope of the issues framed in it or not was a question of law and therefore agreeing with Shri R. N. Hawa held that the second appeal was not liable to rejection. THE learned Chairman sent back the case to the bench concerned for further hearing on merits.

(3.) IN my opinion the order passed by Shri Shyam Lal does not lead to a proper disposal of the appeal in conformity with sec. 13 of the Rajasthan Land Revenue Act read with Rule 10 of the Revenue Courts Manual. Shri R. N. Hawa, one of the Members on the Division Bench, held the appeal to be maintainable and proposed that it should be accepted and the case remanded to the lower court. Shri Khem Chand, the other member on the Division Bench, held that the appeal was not maintainable at all. Shri Shyam Lal merely held the appeal to be maintainable. Thus there were three opinions on the appeal which had to be decided according to the majority opinion from out of the three opinions and this majority opinion is only with regard to the preliminary point of the maintainability of the appeal, while there is no majority opinion regarding the acceptability or otherwise of the appeal on merits. I am of the opinion that Shri Shyam Lal could not have ordered that the Division Bench in which the difference of opinion arose should hear the case on the merits, and that he should have himself passed an order regarding the acceptability or otherwise on the appeal on merits. Having pointed out this illegality, I am of the view that this larger Bench has the inherent power to intervene in a situation such as this, and to direct that the appeal may be heard in the Division Bench on merits so that the appeal may be finally disposed of, as in my opinion it was not in the first instance by the three members who heard it, the two members constituting the Division Bench and the former Chairman who heard it after a difference of opinion had arisen in the Division Bench. Per Shri Kr. Gujendra Singh - This is a reference from the Division Bench to this larger Bench on two matters stated in the order. I have had the benefit of going through the orders that my learned brothers proposed to make in this case and since I hold slightly different views in this matter from the other learned brothers I respectfully set out my views below : -