LAKHI RAM Vs. MAHIDHAN

JUDGEMENT

(1.) THIS reference by the learned Commissioner, Bikaner arises out of the following circumstances. Mahidhan brought an application before the Tehsildar Rajgarh on 13. 7. 1950 for correction of entries in the Gasht Girdawari. The Tehsildar forwarded the application to the Naib Tehsildar who made some enquiry and expressed his opinion upon the merits of the case. The Tehsildar did not agree with the suggestion of the Naib Tehsildar and remanded the case for further enquiry. The Naib Tehsildar complied with this direction and put up a fresh report before the Tehsildar who in turn forwarded the case to the Assistant Collector. The Assistant Collector also remanded the case to the Tehsildar and eventually on 30. 6. 1957 rejected the application. Mahidhan preferred an appeal before the Collector who remanded the case back to the Assistant Collector for a fresh decision. The Assistant Collector again decided the case on 13. 12. 1952, this time allowing a partial correction in favour of Mahidhan. Thereupon Lakhiram went up in appeal before the Collector who rejected the same on 18. 4. 1953 and confirmed the decision of the Assistant Collector. Feeling aggrieved by this appellate decision Lakhiram went up in appeal before the learned Commissioner Bikaner who met with no success as the second appeal was rejected by the learned Commissioner on 1. 6. 1954. Lakhiram came up in revision before the Board A Division Bench which heard this revision held that the judgment of the learned Commissioner suffered from serious defects in-as-much as it did not state the points for determination, the finding on these points and the reasons for the decision thereon. The revision was allowed, the order of the learned Commissioner was set aside and the case was remanded to that court for rehearing the appeal and deciding it afresh in accordance with law. It appears from the reference order of the learned Commissioner that when the appeal came up before him for a fresh hearing the counsel for Mahidhan put up an application to the effect that the enforcement of the Rajasthan Land Revenue Act had changed the forum of appeal; that the appeal was to be heard by the Collector, Churu and that the Commissioner war left with no jurisdiction to dispose of the same. The learned Commissioner agreed with this contention and has made this reference recommending that the case be transferred to "the competent court having jurisdiction to dispose of the case".

(2.) SHRI Shikhar Chand who has appeared for Mahidhan before us has frankly conceded before us that the second appeal pending before the Commissioner Bikaner can be heard by no court other than that of the Commissioner, Bikaner and that he is not in a position to support the reference. We may further point out for the guidance of the learned Commissioner that the right of appeal is nor a mere matter of procedure but is a substantive right, as pointed out by their Lordships of the Supreme Court in A. I. R. 1957 S. C. 540: - "the institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit: - The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. This vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly or by necessary intendment and not otherwise".