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1960 DIGILAW 264 (RAJ)

Partalal v. Gheesa

1960-10-18

KHEM CHAND SHARMA, R.N.HAWA

body1960
This is an appeal against the judgment of the Additional Commissioner, Jaipur dated 16.3.1960. We have heard the learned counsel for the parties and examined the record also. Circumstances leading to this appeal are that appellant Partalal brought a suit for division of holding and recovery of possession of the disputed land against the respondents which was decreed by the Assistant Collector, Neem Ka Thana on 30.2.1959. On appeal, however, the learned Additional Commissioner set aside that decree, remanded the case back for retrial not on merits but only on the ground that the land-holder had not been made a necessary pary thereto as required by sec. 54 (4) of the Rajasthan Tenancy Act, 1955. A preliminary objection has been raised, on behalf of the respondents by Shri P.D. Kudal to the maintainability of the appeal. The contention is that the provisions of the Civil Procedure Code (hereinafter referred to as Code) having been made applicable to the suits and proceedings under the Rajasthan Tenancy Act (hereinafter referred as the Act) appeals can lie only against the orders enumerated in O. 43 R. 1 of the Code and not otherwise. It has been argued that vide item (U) thereof only an order of remand under 41 Rule 23 of the Code has been prescribed to be appealable and no other order of remanding an appeal; that vide Rule 23 remand order can be made only when the trial court has disposed of the suit on a preliminary point and the decision thereof is revised by the appellate court and that when the appeal has been remanded not on the basis of revising the decision of trial court on a preliminary point but for a retrial after adding the necessary party, as in the present case, the order of the remand shall be treated to have been passed not under Rule 23 but under the inherent powers of the Court. A.I.R. 1925 Rangoon 320, AIR 1932 Lahore 219, AIR 1951 Rajasthan 58 and AIR. 1956 Rajasthan 43 cited by Shri Kudal all go to support his arguments so far as the provisions of the Code are concerned. 1955 R.L.W. 150 cited by Shri Tiwari on behalf of the appellants in this behalf does not at all go to repell them. A.I.R. 1925 Rangoon 320, AIR 1932 Lahore 219, AIR 1951 Rajasthan 58 and AIR. 1956 Rajasthan 43 cited by Shri Kudal all go to support his arguments so far as the provisions of the Code are concerned. 1955 R.L.W. 150 cited by Shri Tiwari on behalf of the appellants in this behalf does not at all go to repell them. No right of the parties has been decided in this cases by the learned first appellate court as in that case when it was decided finally that the plaintiff had a right of redemption denied to him by the trial court. The first appellate Court in the present case has neither entered upon examining the merits of the claims of the parties nor revised any decision of the trial court on any matter of controversy between them. The facts of AIR 1925 Rangoon 320 being almost on all fours w;th those of the present case, this appeal will not be maintainable if only the provisions of the Code were to govern it. But fortunately or unfortunately sec. 208 of the Act makes the provisions of the Code applicable to the suits and proceedings under the Act, so far as relevant for the purposes of deciding this appeal, only when they are "inconsistent" with anything therein. Now, sec. 225 of the Act allows appeals from every order except when it is an order "passed in appeal under this Section", as when sec. 104 and order 43 Rule 1 of the Code provide appeals only from orders mentioned therein and "from no other". Herein lies the marked difference between the provisions of the two enactments. When this difference is there the provisions of the Act would prevail upon those of the Code. Sec.225(1) of the Act providing for appeal against all orders excepting those barred under sub-sec. (2) thereof, provisions of sec. 104 and Order 43 Rule 1 of the Code would be deemed to be inconsistent with the provisions of the Act. The exception to the general rule of appeal against orders passed in the suits and proceedings under the Act would therefore be not the ones not mentioned in the above-referred provisions of the Code, but those falling under the category of the orders "passed in appeal under this sec. 225(1)" alone. Certainly the judgment under appeal before us is not an order falling under this category. 225(1)" alone. Certainly the judgment under appeal before us is not an order falling under this category. It is an order passed in appeal against the decree of the trial court under sec. 223 of the Act and not an order passed in appeal against any order of the trial court under sec. 225. An order can be deemed to have been passed in appeal under sec.225(1) only if it is passed when an appeal is taken to the authority prescribed by sub-sec. (1) thereof to hear the appeals against an order (as contrasted with a decree) passed by an authority mentioned therein. This being not the case in this appeal, but on the other hand the impugned judgment being an order passed for deciding the appeal against the decree of the court on its own merits, it would be maintainable under sec. 225(1)(i) of the Act, and the preliminary objection raised on behalf of the respondents is hereby rejected. No longer there remains the necessity of deciding other contentions raised by Shri Tiwari in reply to this preliminary objections of Shri Kudal except the one that the impugned order is a "decree" one having been framed also by the learned lower appellate court and it having been also a formal expression of adjudication between the parties. Vide Sec. 2(2) of the Code, however an order could go to formulate a decree only when it adjudicates conclusively so far as the court passing it was concerned the rights of parties with regard to all or any of the matters in controversy between them. The learned lower appellate court has not done so. It has not even examined what were the matters in cont-roversy between the parties, not to speak of adjudicating upon them in any way. It has only decided the applicability or otherwise of sec. 53(4) of the Act to the present case. The impugned order cannot therefore be taken to be a decree. Now, about the merits of the appeal. It has been contended by the learned counsel for the appellants, Shri Tiwari, that the holding being admittedly one held directly from the state and not an estate-holder, there was no necessity of making the land-holder a party to the present suit. The argument is that the State could not have any interest in the division or this holding. It has been contended by the learned counsel for the appellants, Shri Tiwari, that the holding being admittedly one held directly from the state and not an estate-holder, there was no necessity of making the land-holder a party to the present suit. The argument is that the State could not have any interest in the division or this holding. It has been also argued that land-holder as defined by sec. 5(26) of the Act meant the person to whom the rent was payable, and that the State Government could not be a person. But Shri Kudal, learned counsel for the respondents, has rightly referred to the definition of the term person given in sec. 32(7) of the Rajasthan General Clauses Act 1955, which defines person to include "any company or association or body of individuals, incorporated or not". Salmond too in his jurisprudence (Ninth Edition, page 417) says "A person, then may be defined, for the purposes of the law, any being to whom the law attributes a capability of interest and therefore of rights, of the acts and therefore of duties. Further on page 443 thereof again he says "of all human societies the greatest is the State. It owns immense wealth and performs functions which in number and importance are beyond those of all other associations". The State Government has been assigned certain rights, acts and duties by the Act. The arguments, therefore, that the land-holder meaning a person cannot include the State Government also is divided of any force. As for the argument that the State Government have any interest in the division of the holding of the parties, it simply cannot be considered, if the act enjoins that the land-holder shall be made a party to a suit for such a division. Nor does it arrest this stage of the case. Interest or no interest would be the function of the State Government as land-holder to see and decide, but certainly not is it any of the business of of the courts trying the suit. The State Government as land-holder may like to contest the suit or not, may like to put in an appearance or not; but it would be cited and made a party so long as there is provision in the enactment to the effect. Sec. 53(4) is clearly mandatory in this behalf. The State Government as land-holder may like to contest the suit or not, may like to put in an appearance or not; but it would be cited and made a party so long as there is provision in the enactment to the effect. Sec. 53(4) is clearly mandatory in this behalf. It says "to every suit for the division of one or more than one holding all the co-tenants and the land-holders shall be made parties . The learned Additional Commissioner has only directed the enforcement and compliance of this mandatory provision of law. He cannot therefore be said to have violated any of the provisions of sec. 224 of the Act so as to warrant an interference by us in this second appeal. There is thus no force in this appeal and it is hereby rejected.