Mangaliya And Ors. vs Mst. Pancho And Ors. on 6 March, 1992

Madhya Pradesh High Court
Mangaliya And Ors. vs Mst. Pancho And Ors. on 6 March, 1992
Equivalent citations: AIR 1993 MP 175
Author: T Singh
Bench: T Singh, S Dwivedi


JUDGMENT

T.N. Singh, J.

1. One short, but important question of law has been raised for our decision in this matter. Whether a second appeal lies in respect of an order passed in a proceeding instituted under Section 275, Quanoon Mal (of erstwhile Gwalior State)? That is extracted below.

nQk 275 nkok QkDd jgu ;k tjs jgu & vxj nkok
QkDd jgu ;k tjs jgu fdlh nLrkost jftLVh ‘kqnk dks : ls djuk ykfte vkos rks pan
rhu lky rglhynkj lkgc ds btykl esa vkB vkus ds LVkEi ij nk;j gksxkA rglhynkj ds
gqDe ds vihy lwckr esa gksxk vkSj gqDe lwck lkgkc ukfrd gksxk-

2. Obviously, it is not necessary, therefore, to refer to all aspects of the long travail which parties have suffered during the course of long 20 years’ life of this lis, but to the undisputed facts relevant to the controversy, a reference is still necessary. Hardeva, prede-cessor-in-interest of the petitioners, was recorded as a Pakka Krishak of land measuring 6 Bighas and 6 Biswas, in village Mohammadpur, Pargana and District Gwalior. He submitted an application in the Court of Tahsildar, Gird, for grant of permission to mortgage the land for Rs. 300/- in favour of one Sitaram, husband of non-petitioner No. 1 and the application was registered as Misc. Mal Case No. 13/69. On Hardeva’s death during the pendency of the case, the petitioners, his sons, were brought on record and the permission prayed was granted. In his capacity as guardian of his brothers, petitioners No. 2 and 5, he executed on 1-3-40 a deed of usufructuary mortgage in Sitaram’s favour for Rs. 300/- under which redemption period of 12 years was fixed for the mortgagee to deliver possession of the land to the petitioners without payment of mortgage-money. On the minor-petitioners’ attaining majority, suit for redemption contemplated under Section 275, afore-extracted, was filed in the Tahsil Court at Gwalior and that was registered as 21/70-71/A/74. Copy of plaint of the suit is Annexure A of the petition. It refers inter alia to notice dated 28-9-1970, demanding possession, being served on non-petitioner No. 1, prior to institution of the suit.

3. Other facts too, matters of record, having a bearing on the controversy, are succinctly stated. By an order passed on 9-9-1981, the Tahsildar disposed of the suit/ application allowing the prayer and directed the defendant/non-petitioner Mahila Pancho, widow of Sitaram, to remove her possession from the suit land within 20 days and put the plaintiffs/petitioners in possession of the land in question. An appeal was taken unsuccessfully against that order to the Sub Divisional Officer and against the order dated 25-11-1982, passed in that appeal, a second appeal was filed which was disposed of by the Additional Commissioner by the order dated 24-3-1983. The matter was remanded by him to Tahsildar with certain direction. His order was challenged, however, in Revision before the Board of Revenue and the Board, by its order dated 4-5-1983, after setting aside the order of the Additional Commissioner, directed him to decide the appeal on merits. Thereafter, the second appeal was reheard and disposed of by the Commissioner on 7-7-1983. Being dissatisfied with that order, non-petitioner Pancho preferred revision to the Board in which the impugned order dated 22-9-1983 was passed. The Board has taken the view that the Additional Commissioner was wrong in setting aside the order of the Sub-Divisional Officer on the ground that the first appeal preferred before him was not competent because Under Section 275, afore-extracted, appeal lies to the Collector. Again, fresh direction was made to the Additional Commissioner for deciding the second appeal on merits.

4. On behalf of the petitioners, Shri Kaushik has urged a short point to which we have referred at the outset. It is true, as submitted by Shri Vajpei, learned counsel appearing for the non-petitioners, that certain provisions of Quanoon Mal were repealed when M.B. Land Revenue and Tenancy Act, Samvat 2007 was enacted in 1950. In Schedule I of the Act, at item No. 5, the provisions repealed by the said Act are indicated. Although Chapter II of Quanoon Mal is repealed as a whole and that Chapter contains Section 267 to Section 280, dealing with tenancy rights, it is at the same time, clearly indicated that not only that Chapter, but the other provisions also, specified therein of other chapters were repealed as were “contrary to and inconsistent with the provisions of part 1 of this Act to the extent of such inconsistency or contradiction”. Long back, this Court in the case of Prahladdas v. Moti 1961 RN 76, took the view that the mortgage of tenancy right remained unaffected by Section 72(9), Madhya Bharat Tenancy Act and in respect of any mortgage legally executed under Quanoon Mal, Section 275, relief contemplated thereunder (of redemption) continued to subsist. It was also noted that Section 377 thereof barred a Civil Suit in that regard.

5. Indeed, it was observed at para 4 that it was erroneous to suppose that Quanoon Mal had been repealed in its entirety; the provisions of Quanoon Mal of which there was no parallel in the Madhya Bharat Tenancy Act would continue to apply so far as they are not (in) conflict with the provisions of the latter Act. It was also held that under the new set-up the forum of Court of Tahsildar contemplated under Quanoon Mal continued to exist and, therefore, suit could be validly instituted, at the said forum to enforce the right contemplated under Section 275, Quanoon Mal. We express our respectful agreement with the law stated which has stood me test of time and has continued to hold field for the last three decades. Suffice it to add this much that enactment of Madhya Pradesh Land Revenue Code in 1959, for short, the ‘Code’, has not changed in any manner the position. Section 261 of the Code, dealing with “Repeal and Savings” provides that notwithstanding repeal of the enactments mentioned in Schedule II of the Code, the “repeal shall not affect (inter alia) the previous operation of any law so repealed or anything duly done or suffered thereunder Clause (a) or any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed” Clause (b). In any case, repeal of Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007, in its entirety, including the Schedule of the said Act would have no effect on the proceeding instituted under Section 275, Quanoon Mal by the petitioners because under Clause (b) of Section 261, that is saved. It may be noted, Quanoon Mal is not included in Schedule II of the Code. During the currency of Quanoon Mal, the mortgage was executed in 1940 by the petitioners and the remedy contemplated under Section 275 was, therefore, available to them and to enforce their right in regard to that mortgage in accordance with the provisions thereof and that remedy they availed by filing the suit in 1940.

6. Reliance is placed by Shri Vajpei on the provisions of Section 19 of the Code to submit that the Revenue suit for redemption of the mortgage being instituted by the petitioners after enactment of the Code, the Tahsildar, was exercising his powers under Section 19 and, therefore, the order which had been passed by the Tahsildar on 9-8-1981, could be appealed against in accordance with the provisions of Section 44 of the Code. According to learned counsel, Sub-section (1)(a) of Section 44 made an order amenable to first appeal to Sub-Divisional Officer and then, in accordance with the provisions of Sub-section (2), the order passed in appeal by the Sub-Divisional Officer could be challenged in second appeal before the Collector. He concedes, however, that present Sub-section (2) of Section 44 is a new provision introduced by the Madhya Pradesh Land Revenue Code (Amendment) Act, 1973 and is effective from 8-5-1974. Our attention is drawn by Shri Kaushik to the legislative history of the amendment as noted in Dr. Harihar Nivas Dvivedi’s Commentary on The Madhya Pradesh Land Revenue Code, Eleventh edition, p. 243. The Objects and Reasons of the Bill concerning the 1973 Act are extracted therein and what we find is that Legislature had taken note of this Court’s Full Bench decision in Ravishanker Dubey’s case 1972 RN 502 and to overcome the view taken in that decision by this Court, the amendment was enacted. This Court, had held that a second appeal was competent against “order” passed under M.P. Ceiling on Agricultural Holdings Act, 1960 in terms of the provisions of old Sub-section (2) of Section 44. In the Objects and Reasons, it was stated, inter alia, as follows :

“This was, however, not the intention. It was intended to make second appeals available only in respect of an order passed by a Revenue Officer in first appeal under the Code alone and not under any other enactment for the time being in force. It is, therefore, proposed to amend the Code suitably to make this intention clear”.

7. The Amending Act of 1973, it may be noted, amended not only Sub-section (2) of Section 44 but substituted the old Section 56 by a new one. Additionally, “transitory provision” was made contemplating, inter alia, that any second appeal “pending before any Revenue Officer or the Board of Revenue mentioned in the said sub-section on the date of commencement of this Act shall stand abated and orders passed in first appeals against which such second appeals were pending shall be final”.

8. It would be profitable indeed, to compare the old provision and the amended one. Relevant portions of the new and old Sub-section (2) of Section 44 along with the new and old Section 56, albeit in extenso, are extracted :

Sec. 44(2) (old)
“(2) A second appeal shall lie against any order passed in first appeal….”

Sec. 44(2) (new)
“(2) Save as otherwise provided a second appeal shall lie against every order passed in first appeal under this Code or the rules made thereunder…..”

Sec. 56 (old)
“56. In this Chapter the expression “order” means the formal expression of the decision given by the Board or a Revenue Officer in respect of any matter in exercise of its/ his powers under this Code or any other enactment for the time being in force.”

Sec. 56 (new)
“56. In this Chapter, unless the context otherwise requires, expression. “order” means the formal expression of the decision given by the Board or a Revenue Officer in respect of any matter in exercise of its his powers under this Code or any other enactment for the time being in force, as the case may bt(sic)

9. In our view, the key expressions of which notice must be taken are those emphasised in the extract made above of the new provisions. The “order” is to be passed in a “first appeal” preferred in accordance with the provisions of the Code in respect of any order passed under the Code. Though second appeal, according to Sub-section (2) is provided, it is clearly contemplated that in other cases when a provision for second appeal is not made, it would not lie. The intention of the Legislature in this regard is made clear by use of the words : “save as otherwise provided” and also the expressions used in juxtaposition therewith, “against every order passed in the first appeal under this Code”. To make this intention still clear and unambiguous, the term “Revenue Officer” is defined in new Section 56 with greater precision. In this connection, it is noteworthy that Sub-section (1) of Section 44 has remained unamended and the term “Revenue Officers” occurs therein. As earlier noted, as per Clause (a) of Section 44(1), when an order is “passed by any Revenue Officer” subordinate to the Sub-Divisional Officer, the first appeal against his order lies to the Sub-Divisional Officer”. By amending Section 56, care is taken to ensure that the first appeal (conuL on 2nd col.)

Section 44(2) (old)
“(2) A second appeal shall He against any
order passed in first appeal….”

Section 56 (old)
“56. In this Chapter the expression “order” means the formal expression of the decision given by the Board or a Revenue Officer in respect of any matter in exercise of its/ his powers under this Code or any other enactment for the time being in force.”

Section 44(2) (new)
“(2) Save as otherwise provided a second appeal shall lie againt every order passed in first appeal under this Code or the rules made thereunder…..”

Section 56 (new)
“56. In this Chapter, unless the context otherwise requires, expression “order” means the formal expression of the decision given by the Board or a Revenue Officer in respect of any matter in exercise of its; his powers under this Code or any other enactment for the time being in force, as the case may be;”

against order of a Revenue Officer would lie,
as per Section 44(1)(a) when that order is passed “in
respect to any matter” in relation to which he
exercises powers under the Code or, for that
matter, even when the order to be passed
under any other enactment for the time being
in force. It was in the contemplation of the
Legislature that though a Revenue Officer
may be exercising his powers under the Code
or under any other enactment for the time
being in force, he cannot deal with the matter
in respect of which the Code does not vest in
him such power. In our view, it became
necessary for the Legislature to make this
position clear by amending Section 56 because by
that, the possible ambiguity in respect of the
nature of the order passed by the Revenue
Officer in regard to its appealability or forum
in terms of Section 44(l)(a) is appropriately remov
ed. To guard against any mischief occurring
in respect of pending second appeals which
the Legislature did not like to continue, to
make the orders passed in the first appeal
final, provision was also made, therefore, for
abatement of such appeals. Section 4 of the
Amending Act of 1973 containing the transi
tory provision, saved expressly and categori
cally only such second appeals which were
preferred “against orders passed in first
appeals under the principal Act” and all other
second appeals against orders passed in first
appeal preferred under old Sub-section (2) of Section 44 were meant to abate.

10. Be it recalled in this connection that in Ravishankar Dubey’s case (supra), a similar a similar question arose, whether a Second appeal lay under Section 44(2) (as then existed) of the Code fiom an order passed in appeal under Section 4) of the Ceiling Act. The provision, in terms, referred only to “an appeal” and contemplated the forum in terms of the provisions of Section 44(1) of the Code. Shivdayal, J. (as he then was) took the view that second appeal was not contemplated, but the Majority held otherwise, construing the word “order”, used in Section 41, Ceiling Act, in terms of Section 56 and Section 44(2) of the Code. At para 49 of the Report, the Majority rejected the contention that the scope of Section 44(2) of the Code could not be limited and that the provision is not to be read as to make appealable only “an order passed in first appeal under Sub-section (1)”. Obviously, it did not appeal to the Majority that “order” passed under any other enactment when appealed against did not bring about the result that the appellate order was not passed under the Code. It became necessary, therefore, for the Legislature to specify that a “Revenue Officer” passing an order, original or appellate, has to pass an order “in respect of matter” for which power and jurisdiction or both vested in him “under the Code” for dealing with the matter so as to make the order passed by him appealable. The fact is that Section 41, Ceiling Act spoke of “an appeal”, that position the Legislature also meant to clarify by introducing the expression “save as otherwise provided” in Sub-section (2) of Section 44 to buttress the effort made in that regard by using also the expression “order passed in the first appeal under this Code”. It is true, arguments were not based before the Court in that case on Section 19 of the Code as is done in this case by Shri Vajpei, That position will be now examined. But, we regard it necessary to stress the role of “mischief rule” which is universally recognised to support the view we have taken in respect of the legislative intendment of the Amending Act of 1973.

11. Under the Ceiling Act, the “Revenue Officer” acts either as a “Competent Authority” or even otherwise and even a “Competent Authority” may not be a “Revenue Officer”. In Section 11 of the Code, are classified “Revenue Officers” including “Tahsildars”, “Sub-Divisional Officers”, “Collectors” and other functionaries upto the level of “Commissioners” who are in any manner acting with Revenue administration and are entrusted with powers or duties under the Code. The object of Section 19 is to empower in each Tahsil “the Tahsildar” to exercise such functions as he has been empowered to perform under the Code or specifically under any other enactment. We do not see any scope for taking the view that the Legislature meant powers exercisable by Tahsildar under the Code and under any other enactment for the time being in force to coalesce; the dichotomy, according to us, is clearly maintained as that had to be done. Rights and obligations of parties may be variously created and there may be separate enactments to deal therewith. Even if the same functionary is invested with different jurisdictions to deal with “different matters” under different enactments, that would not change the position.

12. There is clear distinction between exercise of “power” and “jurisdiction. In this connection, we may profitably refer to this Court’s D.B. decision in Phariya Bricks Works v. Malvendra Singh 1990 MPLJ 371 wherein this position is brought into focus at para 15 of the judgment. The Court accepted the definition that “By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision”. Indeed, it was held in that case that merely because the appellate Court had been entrusted with power to pass any interlocutory order in appeal, that order did not partake the character of an “original order” inasmuch as the order was passed in exercise of appellate jurisdiction. Under Section 275 Quanoon Mal, a special remedy of redemption suit in Revenue Court is contemplated and as such, the Tahsildar is required to deal with a “matter” under Section 275 for which there exists no provision in the Code; he exercises power under Quanoon Mal in dealing with it but in passing final order he acts under the Code in the proceeding, though initiated before him under Section 275, Quanoon Mal. He does not exercise powers of a “Revenue Officer” under the Code though he execises jurisdiction under the Code in passing the final order because he is a creature of the Code. His order will, however, partake the character attributable to the source of power, contemplating one appeal only and no revision even in respect of such an order.

13. For the foregoing reasons, we have no doubt that Section 275, Quanoon Mal, expressly contemplates only one appeal and makes the order passed in that appeal “final”. That position, according to us, has not been changed with enactment of the Code and by provisions concerning appeals embodied in Section 44 thereof. For that view, we also find support from the Constitutional imperative underlying Article 39-A of speedy delivery of justice and of positive effort to eschew protraction in litigation. In that connection, we may also recall the view expressed by the Apex Court in the case of Shri Vishnu Avatar, AIR 1980 SC 1575 : (1980 All U 751) that “one appeal or revision is almost universal”. Trite law it is, however, that both appeal and revision are creatures of statute. Quanoon Mal, Section 275, providing one appeal and no revision, inferentially, neither a second appeal not a revision can be judicially created in terms of the Code.

14. The question, however, still remains if that appeal could be heard, as has been heard in the instant case, by sub-Divisional Officer in terms of Sub-section (1) of Section 44 and disposed of long back, on 25-11-1982. Under Section 275, Quanoon Mal, that appeal could be heard by “Suba Saheb”, but under the Code that functionary has vanished; although it is suggested that we should consider “Collector” defined as a “Revenue Officer” in Section 11 as “Suba Saheb”, we do not accept that. The Code has kept intact the post of “Tahsildar” who was also a “Revenue Officer” of the erstwhile Gwalior State and in express terms, provisions of Sections 11 and 19 are made in that regard; the “Collector” is a new “Revenue Officer” under the Code as is also “Sub-Divisional Officer”. We agree with Shri Vajpei that right to appeal is a substantive right and not merely procedural right and yet, by implication, the forum where the appeal can be heard may be changed by legislative venture. That is why Section 44( 1 )(a) of the Code can legitimately intervene and make orders of Tahsildar passed under Section 275, Quanoon Mal, Gwalior, appealable to Sub-Divisional Officer because the Tahsildar admittedly is subordinate to Sub-Divisional Officer. Although the old forum of “Suba Saheb” has gone, his place is occupied in accordance with Section 44(1)(a) of the Code by Sub-Divisional Officer. To that extent only, it can be said that there has been implied repeal or rather amendment of one part of Section 275, Quanoon Mal; under Section 44(1) of the Code, a new forum for the appeal contemplated thereunder is now provided and that is done, because under Section 11, the Revenue Officers’ hierarchy is reconstituted under the new political set-up. In virtue of Section 28-A M.B. General Clauses Act, 1950, “Subas” and “Naib Subas” became Collectors and that position is maintained in the Code while introducing an intermediate forum of Sub-Divisional Officer.

15. It is not absolutely necessary that a statute must be repealed by express language, alteration or amendment, as also repeal can be effected by necessary implication. (See, S/U.P. v. Atica Begum, AIR 1941 FC 16; Hulas Narain, AIR 1942 FC 8. When two enactments can stand together and are not irreconcilable, the case obviously may not be of repeal of the former, but of its provisions being altered (amended) by the later enactment on the principle that Legislature’s last Will always prevails. In Maxwell’s Interpretation of Statutes, Twelfth Edition, p. 222, it is stated : “No person has a vested right in any course of procedure, but only the right of prosecution or defence in the manner prescribed for the time being, by or for the Court in which he sues, and if an Act of Parliament alters that mode of procedure, he can only proceed according to the altered mode”. See, also, in this connection, Anant Gopal, AIR 1958 SC 915 : (1958 CriLJ 1429); K. Kapen Chako (1971) 1 SCC 593, 602/3. These decisions, it is true, stress the imperative that the said Rule is an exception to the general principle embodied in the well-known maxim — “new law ought to be construed so as to interfere as little as possible with vested rights”. See, Gulab-chand, AIR 1958 SC 554, 558/9.

16. In Garikapati, AIR 1957 SC 540, it was held that vested right of appeal can be taken away only by subsequent enactment if it so provides expressly or by necessary intend-ment. In Hussain Kasem Dada(AIR 1953 SC 221), the view taken was that when a lis commences, all rights get crystallised and this position was explained and elaborated further in Vitthalbhai. AIR 1967 SC 344. It is to be noted that the Code being a consolidating statute, it carries with it the burden of the legal presumption that the “law as previously stood was probably intended to be left unaltered” and, therefore, it is to be so construed as to interfere as little as possible with existing rights. (See, Ravulu Subba Rao, AIR 1956 SC 604, 610; Thakur Amarsinghji, AIR 1955 SC 504, 526). Section 275, Quanoon Mal made orders of a “Tahsildar” passed thereunder appealable only to the “Suba”, now, the Collector. But, the Code, while maintaining the right of appeal in respect of orders passed by Tahsildar not only under the Code, but also under any other enactment “in force for the time being” has, with deliberate care, altered the forum of that appeal. It could competently do that and it has unambiguously done that. There was indeed scope to obfuscate with respect to the new forum contemplated Under Section 44(2) as it stood before the amendment; and indeed, it so happened when decision was rendered in Harishankar Dubey’s case (supra).

17. However, after amendment is made with deliberate care to overcome the decision as discussed earlier, we do not think if there is any scope to entertain any doubt that if the right of appeal contemplated under Section 275, Quanoon Mal was tinkered with in any manner, that was only with respect to the forum; the content of that right was not enlarged and to make that position clear the Amending Act was passed. As earlier noted, M.B. Land Revenue and Tenancy Act had kept alive in toto Section 275, Quanoon Mal and though that Act was repealed by the Code in its entirety, Section 275, Quanoon Mal, in its entirety, maintained its existence in virtue of Section 11, M. P. General Clauses Act, until it came to be amended part ially in virtue of Section 44( 1) of the Code. The echo of Section 6-A of the Central General Clauses Act is to be heard in Section 11 of the State as it also provides, like Section 6-A “unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal”. We may appropriately refer, therefore, to Jethanand, AIR 1960 SC 89 : (1960 Cri LJ 160) rendered on the provision of the Central Act. Their Lordships noted that the provision was based on the general principle stated in Maxwell and Craies but they also referred to Privy Council’s decision in Hindustan Cooperative Insurance Society’s case, AIR 1931 PC 149. They approved the judicial dictum; “despite the death of the parent Act, its offspring survives in the incorporating Act.”

18. It is not possible, therefore, to hold, as contended by Shri Vajpei, that the right of appeal in its entirety in the form and manner contemplated under Section 275, Quanoon Mal, is impliedly barred in toto and the new right is created under Section 44 of the Code. In our view, Sub-section (2) of Section 44, by use of the expression “save as otherwise provided” has made it clear that in terms of Sub-section (1), the pre-existing right of first appeal against any order passed by a Revenue Officer of the specified class in exercise of powers contemplated under any enactment other than the Code was saved despite different forums being provided in the Code for exercise of that right. Indeed, Section 56 was, therefore, amended simultaneously with Section 44(2) in 1973 to remove all doubts about this position. It is the settled law that the courts favour an interpretation as promotes the general purpose of an Act rather than one that defeats it. (See, in this connection, State of Haryana v. Sampurna Singh, (1975) 2 SCC 810 : (AIR 1975 SC 1952)) It is this Court’s constitutional duty to meaningfully construe the amendment of the Code to effectuate the legislative will keeping in view the principles underlying the “mischief rule”.

19. Reliance is placed by Shri Vajpei on Section 35, M.B. Land Revenge and Tenancy Act to submit that the right of appeal contemplated under Section 275, Quanoon Mal stood abrogated in virtue of the provisions thereof, contemplating a “first appeal” and also a “second appeal”. Merely because Section 275 also is not mentioned along with Section 319, it is not possible to hold that Section 35, M. B, Land Revenue and Tenancy Act purported to amend pro tanto Section 275, Quanoon Mal concerning the right of appeal against an order passed thereunder. The language used in Section 35 and in Schedule I of the said Act must be read conjointly and harmonised. Section 35(1) reads, inter alia:

“35. First Appeal.– Save where otherwise provided in this Act or as provided in Section 319 of the Quanoon Mal Gwalior, Samvat 1983 (as amended by Quanoon Mal Amendment Act, Samvat 2004), an appeal shall lie from every original order passed under this Act or the rules made thereunder —

(1) if such order is passed by any Revenue Officer (whether or not such Officer is invested with the powers of the Collector) subordinate to the Collector or to the Settlement Officer, as the case may be;”

As per Col. 2, item No. 5 of Schedule I,
“Chapter 2 whole and Sections….. and any
other Section contrary to and inconsistent
with provisions of Part I of this Act to the
extent of such inconsistency or contradiction”

stand repealed.

20. It is to be noted that Section 35 really deals mainly with “every original order passed under this Act” and indeed, created also a new right of appeal in respect of an order passed under Section 319, Quanoon Mal. However, at the same time, in terms of proviso to Sub-section (3) of Section 36, “second appeal” is barred in respect of “any order or decree passed under Section 319, Quanoon Mal”. As a matter of fact, Legislature really wanted to maintain a parity between right of appeals against orders passed under Quanoon Mal, whether under Section 275 or Section 319. Already, Section 275 contemplated a single appeal, and, therefore, the new right of appeal against an order passed under Section 319 was also similarly limited.

21. Reliance is placed by Shri Vajpel on Constitution Bench decision in Indlra Sohan-lal’s case, AIR 1956 SC 77, but we do not think if that benefits him because that was on Section 6 and not Section 6-A of the Central General Clauses Act. He also relled on Moti Ram, AIR I960 SC 655, but on facts, that too has no relevance to the instant controversy. The question of retrospecitvity is raised in that case while in the instant case, the Tahsildar’s original order and Sub-Divisional Officer’s appellate order are both passed after Section 44(2) of the Code was amended with effect from 8-5-1974 by the 1973 Amending Act. In the other case on which Shri Vajpei relied. Nehru Singh 1969 RN 48, in another form, the same contention was agitated, indeed relating to an appeal under Section 44(2) of the Code, but in that case, under the Bhopal Land Revenue Act, the aggrieved party had been expressly given the right of second appeal and that right was maintained under the new Code at the new forum. In Govind Prasad’s case 1968 RN 512, cited by learned counsel, the point decided was that by subsequent enactment, the vested right of finality of an order may be taken away. With that proposition, evidently, there can be no quarrel. But, in the instant case. Section 44(2) of the Code has clearly and explicitly maintained the finality of the order rendered in first appeal against an original order passed under an enactment other than the Code in a case when it is originally so contemplated under the enactment.

22. It is also Shri Vajpeis contention that the Code came into force in 1959 and the redemption suit under Section 275, Quanoon Mal being instituted on 25-6-1971, the entire life of the lis being covered by the Code, there is scope left to refer to any right of appeal except that contemplated under Section 44 of the Code which provides lor ‘”appeal” under Sub-section (1) and “second appeal” under Sub-section (2). Obviously, the argument is tautological and has no substance. To be more precise, however, we would add that the lis actually commenced in 1940 when the mortgage was created after obtaining permission therefor under Quanoon Mal and by the redemption suit, the right of redemption of that mortgage was enforced as contemplated under Section 275, Quanoon Mal.

23. We have already demonstrated that the right contemplated Under Section 275, Quanoon Mal to file suit and appeal came only to be partially amended by the Code. Tahsildar’s original order passed under Section 275, Quanoon Mal became an order passed in exercise of jurisdiction under Section 19 of the Code and in terms of the provisions of the amended Section 56 of the Code, that order became an “original order” contemplated under Section 44(1) of the Code; although that order has become appealable thereunder to Sub-Divisional Officer under the Code, a second appeal against that order is barred by Section 275, Quanoon Mal and that position is maintained by Sub-section (2) of Section 44 of the Code. We reiterate that Section 35, MB. Land Revenue and Tenancy Act did not affect in any manner the right of appeal contemplated under Section 275, Quanoon Mal; it has no role to play in the instant controversy and Shri Vajpei’s contention to the contrary is without force.

24. For the foregoing reasons, we are of the considered opinion that all proceedings subsequent to the order passed in appeal by Sub-Divisional Officer on 25-11-1982 against Tahsildar’s order dated 9-9-1981, decreeing the suit, are void because Sub-Divisional Officer’s order had finally terminated the lis. Any subsequent order passed, whether by the Commissioner or by the Board of Revenue can have no legal existence because neither is a second appeal contemplated nor a revision. We cannot accept Shri Vajpei’s contention that power of revision could be exercised in respect to Sub-Divisional Officer’s order passed in first appeal because that is expressly barred by the Code itself vide Section 50, proviso (i)(a).

25. In the result, the petition succeeds and is allowed. The order impugned herein, passed by the Board of Revenue on 22-9-1983, is declared void. We further declare, as held above, Sub-Divisional Officer’s order passed on 25-11-1982, shall be treated as final and binding on the parties. No costs.

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