1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION No.4813/1996 Kastoori (through LRs) & Ors. V/s. The Board of Revenue for Rajasthan & Ors.) Date of Judgment :: 11.08.2009 HON'BLE MR.JUSTICE R.S. CHAUHAN Reportable Mr. K.K. Mehrishi, Sr. Advocate along with Mr. Anurag Kulshreshtha for the petitioner. Mr. R.P. Garg for the respondent. Aggrieved by the order dated 19.01.1996 passed by the Board of Revenue (for short, “the Board”), whereby the Board had partly allowed the appeal filed by the petitioners and had directed the trial Court to give its finding issue-wise, the petitioners have still approached this Court. The brief facts of the case are that the husband of respondent No.3, Rai Singh, who is also the father of respondent Nos. 4, 5, 6 and 7, filed a suit for ejectment against one Mr. Ogadi Lal, the husband of petitioner No.1 and also against petitioner Nos.2 and 3, Gordhan Lal and Chittarlal. The said suit was filed in the Court of Assistant Collector, Kota with the averments that the land in Khasra Nos. 172, 173, 549, 550 and 713 situated in village Bhanda 2 Heda, Tehsil Digod, district Kota was owned by the plaintiff. Out of these lands, in Samvat year 2003, the plaintiff had mortgaged twenty-five bighas of land for a consideration of Rs.600/- in favour of father of petitioner No.2 and father of Ogadi Lal namely Shri Shankar Lal. Again on Akshy Tritiya of Samvat Year 2011, more land was mortgaged with Gordhan Lal and Ogadi Lal. Even since then, they were in possession of the same. Similarly, on Akshy Tritiya of Samvat Year 2015 more land was mortgaged. Lastly, further land was mortgaged with Gordhan Lal and Ogadi Lal in Samvat Year 2019. Since Ogadi Lal and Gordhar Lal were enjoying the usufruct of the land, therefore, the mortgage was automatically discharged. Hence, they no longer had the right to continue the possession of the land. Despite this fact, Gordhan Lal and Ogadi Lal have not handed over the possession of the land in dispute back to the plaintiff. Since they were tresspassers of the land, they should be ejected. The plaintiff further pleaded that the land in Khasra Nos. 549 and 550 had been sold by Ogadi Lal and Gordhan Lal to one Mr. Chittarlal, petitioner No.3. Therefore, petitioner No.3 was also impleaded as party respondent in the suit. The defendant Gordhan Lal and Ogadi Lal submitted a joint written statement, denying all the 3 averments made in the plaint. They further claimed that they were in possession of the disputed land for last forty years. Therefore, they acquired the khatedari rights after coming into force the Rajasthan Tenancy Act, 1955. During the pendency of the suit, the plaintiff moved an application under Section 212 of the Tenancy Act for appointment of a receiver. Vide order dated 04.02.1978, the Assistant Collector appointed a receiver for the land in dispute. Since the defendants were aggrieved by the said order, they filed an appeal before the Revenue Appellate Authority. Vide order dated 30.03.1979, the RAA accepted the appeal and set aside the order of the Assistant Collector. Since the plaintiff was aggrieved by the order dated 30.03.1979, he filed a revision petition before the Board of Revenue. However, vide order dated 03.11.1986, the learned Board dismissed the revision petition. The learned Board return the record of the case to the Assistant Collector. It is the case of the petitioner that once the record was returned, the Assistant Collector again issued a notice to Ogadi Lal, Gordhan Lal and Chittarlal. However, the same were not served upon them. Despite the non-service of notice, the learned Assistant Collector ordered an ex-parte proceeding against Gordhan Lal. Similarly, ex-parte 4 proceeding were ordered against Chittar Lal. Likewise, vide order dated 02.03.1998, he ordered an ex-parte proceeding against Ogadi Lal. Thereafter, on 08.01.1990, the learned Assistant Collector passed an ex-parte judgment and decreed the suit in favour of the plaintiff. Thus, he directed the ejectment of the defendants from the land in dispute. Aggrieved by the order dated 08.01.1990, the defendants immediately filed an appeal before the RAA. During the pendency of the appeal, Ogadi Lal expired and petitioner No.1 Smt. Kastoori Bai was brought on the record as his legal representative. Vide order dated 26.08.1993, the RAA partly accepted the appeal and remanded the case to the Assistant Collector. The RAA noticed the fact that notice issued by the Assistant Collector after receiving the record from the Board, the same were returned as unserved. Since notices were unserved, he was of the opinion that opportunity should be given to Ogadi Lal, Gordhan Lal and Chittarlal to produce their evidence. The RAA thus, directed the Assistant Collector to give an opportunity of hearing to the appellants to produce their evidence and to decide the case issue-wise. Since the original plaintiffs were aggrieved by the order dated 26.08.1993, they filed a second appeal before the learned Board. Vide judgment dated 19.01.1996, 5 the learned Board partly accepted the second appeal and modified the order of the RAA to the extent that RAA could not give any finding about the sufficiency or insufficiency of service of notice upon Ogadi Lal, Gordhan Lal and Chittarlal. Therefore, the objection raised by the appellants before the learned Board was accepted. However, the Board remanded the case to the RAA for its decision issue-wise. Hence, this petition before this Court. Mr. K.K. Mehrishi, Senior Advocate, has raised the following contentions before this Court : firstly, an appeal under Section 225 of the Tenancy Act, (“the Act”, in short) does not lie before the Board, as the order passed by the RAA was not a final order, but was merely an order of remand. Secondly, Section 225(2) of the Act clearly debars an appeal from any order passed by any of the authorities mentioned in Section 225(1) of the Act. In order to support his contention, the learned counsel has relied upon the case of Jagannath Singh V/s. Board of Revenue & Ors. (2007 RRD 765). Thirdly, observations made by the Board in the impugned order that “an appellate authority does not have the jurisdiction to go into the sufficiency or insufficiency of service of notice” is misplaced. For, this observation is contrary to the decision of a Division Bench of this Court in 6 Smt. Chanda & Ors. V/s. State of Rajasthan & ors. [2003 (4) WLC (Raj.) 390. According to the learned Division Bench of this Court, even when an appeal is filed against an ex-parte order, the appellate Court can go into the sufficiency or insufficiency of the service of notice. On the other hand, Mr. R.P. Garg, the learned counsel for the respondent has contended that Section 225 (1) of the Act covers appeals from such other orders as are mentioned in Section 104 of CPC. Section 104(1)(i) CPC deals with an appeal made under rules from which an appeal is expressly allowed by rules. Therefore, Section 104 (1)(i) refers to Order 43 Rule 1 of of CPC. Order 43 Rule 1 (u) of CPC, in turn, clearly deals with an order under Rule 23 or Rule 23A of Order 41, remanding a case where an appeal would lie from a decree of the Appellate Court. Thus, according to the learned counsel, an order remanding a case is clearly covered under Section 104 of C.P.C. Hence, it is equally covered by Section 225(1) of the Act. Therefore, an appeal does lie to the Board under Section 225(1)(iii) of the Act. Secondly, Section 225(2) does not carry a blanket ban as interpreted by the petitioner. Sub-clause (2) refers to only those orders which are passed in appeal under “this section” i.e., under Section 225(1) of the Act. Thirdly, the 7 order passed by the RAA remanding the case back to the Assistant Collector was not passed under Section 225(1). In fact, it was passed under Section 223 of the Act. Therefore, the bar contained in Section 225(2) does not apply to the present case. Hence, according to the learned counsel, the appeal was very much maintainable before the Board against the order passed by the RAA. Fourthly, once an ex- parte order has been passed, the litigants have three options before him; firstly, to move an application under Order 9 Rule 13 CPC and to pray that the ex-parte order be set aside by the trial Court itself; secondly, to file a review petition before the same Court; thirdly, to file an appeal under Section 96(2) of CPC. However, in case the appeal is filed under Section 96(2) of CPC, then the party is pre- empted from seeking the setting aside of the ex-parte order. It can argue on the merits of the case, but it cannot raise the plea of sufficiency or insufficiency of service of notice. In order to buttress this contention, the learned counsel has relied upon the case of Smt. Maya Devi V/s. Mehria Gram Dall Mill, Hissar (AIR 1988 Punjab & Haryana 176) and on a Division Bench judgment of Madhya Pradesh High Court in the case of Nagar Palika Nigam Gwalior V/s. Motilal Munnalal (AIR 1977 MP 182). Therefore, according to the learned counsel, the Board was justified in holding that the 8 appellate Court could not go into sufficiency or insufficiency of the service of notice and should have confined itself only to the merits of the case. Hence, he has supported the impugned order. In rejoinder, Mr. Mehrishi has contended that while CPC is the general law, the Tenancy Act is a special law. Therefore, special law would override the general law in case of inconsistency. Relying upon Section 208 of the Act, he has argued that provisions of section are inapplicable where such provisions are inconsistent with the Tenancy Act. According to him, there is an inconsistency between Section 225 of the Act and Section 104 of CPC. According to the learned counsel, Section 225 uses the words “final order” and the words “such other orders”. However, the words “final order” tends to affect all the three categories enumerated in Section 225 of the Act. Therefore, the word “final” also covers orders passed under Section 104 of CPC. However, Section 104 CPC deals with even those orders which are not necessarily “final” in their nature. Hence, a clear cut inconsistency exists between Section 104 CPC and Section 225 of the Act. Thus, according to Section 208 of the Act, Section 104 of CPC does not come into play. Moreover, Section 225(2) contains a blanket ban and debars 9 the filing of an appeal from any order. Heard the learned counsel for the parties, perused the impugned order and examined the case law cited at the Bar. This case raises two interesting issues; firstly, about the scope and ambit of Section 225 of the Act, and secondly with regard to the jurisdiction of the appellate Court to examine the question of sufficiency or insufficiency of service of notice. Section 225 reads as under :- 225. Appeals from orders. - (1) [An appeal shall lie from the final order passed on an application of the nature specified in the Third Schedule and from such other orders as are mentioned in Section 212 of this Act and in Section 104 of the Code of Civil Procedure, 1908 (Central Act V of 1908)],- (i) to the Collector, if such order is passed by a Tehsildar, (ii) to the [revenue appellate authority] if such order is passed by an Assistant Collector, a Sub-Divisional Officer or a Collector, and (iii) to the Board if such order passed by a [revenue appellate authority]. [(1-A) The provisions of sub-section (1) shall apply to all suits, applications or 10 proceedings pending on the date of the commencement of the Rajasthan Revenue Laws (Amendment) Ordinance, 1975 (Ordinance No.13 of 1975). (1B) All pending appeals from orders other than those from which an appeal lies under sub-section (1) shall abate on the date of the commencement of the Rajasthan Revenue Laws (Amendment) Ordinance, 1975 (Ordinance No. 13 of 1975).] (2) No appeal shall lie from any order passed in appeal under this Section.” A bare perusal of this section clearly reveals that Section 225(1) of the Act can be divided into three different categories, firstly, the final order passed on an application of the nature specified in the Third Schedule; secondly, such other orders as are mentioned in Section 212 of this Act; thirdly, such other orders as are passed under Section 104 of CPC. Although, it has been contended that the word “final” would cover all the three categories, such a contention is untenable. For, before describing the second and third category, the legislature, in its wisdom, has used the words “such other orders”. The words “such other orders” would naturally imply “orders” other than “the final order” as mentioned in the first category. In case, the legislature wanted the word “final” to be read even qua the other orders mentioned in Section 212 or Section 104, it would not have used the words “such other orders”. 11 Moreover, considering the fact that Section 104 of CPC deals with the orders which are not “final” in nature, the legislature was justified in using the words “such other orders” so as to distinguish this category of orders from the category of “final orders”. Therefore, the interpretation placed by Mr. Mehrishi that the word “final” would also cover the second and the third categories is unacceptable. Moreover, the contention raised by Mr. Mehrishi that there is inconsistency between Section 225 and Section 104 is equally untenable. Since the words “such other orders” are not covered by the word “final”, obviously all the orders passed under Section 104 CPC can be appealed under Section 225. Hence, there is no inconsistency between Section 104 of the CPC and Section 225 of the Act. Thus, Section 208 of the Act does not come into play. Section 104(1)(i) CPC clearly states that an appeal will lie from any order made under rules. Thus, the words “order made under rules” clearly takes one to Order 43 Rule 1 CPC. Order 43 Rule 1(u) permits the filing of an appeal against an order remanding the case under Rule 23A of Order 41 CPC. In this view of the matter, an appeal would lie against an order remanding the case under Section 104 12 CPC. Hence, an appeal would certainly lie to the Board under Section 225 of the Act from an order of the RAA remanding the case to the Assistant Collector. In the present case, vide its order dated 26.08.1993, the RAA had remanded the case to the Assistant Collector. The appeal was filed under Section 225 of the Act against the said order. Hence, the appeal is certainly maintainable and the contention raised by Mr. Mehrishi on this account is rejected. Of course, Mr. Mehrishi has relied upon the case of Jagannath Singh (Supra) to argue that under Section 225 (2) of the Act no appeal would lie to the Board from an order passed by the RAA. This Court in Jagannath Singh's case had observed as under : - “3. मैनें प्षकारों की ओर से ूःतुत तकॏल को ध्यानपूवर्क सुना एवं अिभलेख का गहनता से परी्षण िकया । 4. िनिवर्वाद रूप से अिधिनयम की धारा 225 की उपधारा 2 के अंतगर्त आर.ए.ए. के िनणर्य के िवरूध्द ि्षतीय अपील बोडर् में पोषणीय नही थी । अिधिनयम की धारा 225 के ूावधान िनम्न ूकार है :- “225. Appeals from orders – (1) An appeal shall lie from the final order passed on an application of the nature specified in the Third Scheudle and from such other orders as mentioned in Section 212 of this Act and in Section 104 of the Code of Civil Procedure, 1908 (Central Act V of 1908) 13 (i)to the Collector, if such order is passed by a Tehsildar. (ii) to the Revenue Appellate Authority if such order is passed by an Assistant Collector, a Sub-Divisional Officer or a Collector, and (iii)to the Board if such order is passed by a Revenue Appellate Authority. (1A) The provisions of sub-section (1) shall apply to all suits, applications or laws (Amendment) Ordinance, 1975 (Ordinance No.13 of 1975). (1B) All pending appeals from orders other than those from which an appeal lies under sub-section (1) shall abate on he date of the commencement of the Rajasthan Revenue Laws (Amendment) Ordinance (Ordinance No.13 of 1975). (2) No appeal shall like from any order passed in appeal under this section.” 5. मैं इस िन्ाय मत का हं िक ू बोडर् ने धारा 225 के आदेशात्मक ूावधानों की अनदेखी की है और भारतीय संिवधान के अनुच्छेद 227 के अंतगर्त बोडर् के अवैधािनक आदेश के सम्बंध में हःत्षेप िकया जा सकता है ।” Unfortunately, he has not given any reason for his conclusion that a second appeal does not lie to the Board against an order passed by RAA under Section 225 (1) of the Act. Since no reasons have been given, since Section 225 of the Act has neither been analyzed nor 14 interpreted by the learned Single Judge, the judgment is a non-speaking one. The learned Single Judge has overlooked the fact that in three categories enumerated in Section 225(1) of the Act an appeal would lie from an order passed by the RAA. Moreover, a bar contained in Section 225(2) only prohibits further appeal from an order passed under Section 225(1). For, Section 225(2) clearly states that any order passed in appeal “under this Section”; obviously, the words “under this Section” refer to Section 225(1) of the Act. Since the judgment has not analyzed the law, since the judgment has ignored the words “under this Section”, the judgment is per incurrium. Therefore, the said judgment is not binding on this Court. The issue whether the appellate Court has the power to examine the sufficiency or insufficiency of the service of notice is no longer res integra. The said issue have been answered by the learned Division Bench of this Court in the case of Smt. Chanda & ors. (supra). The learned Division Bench observed as under :- “A look on sub-section (2) of Section 96 of the Civil Procedure Code demonstrates that an appeal may lie from the original decree passed ex parte. The defendant against whom an ex parte decree is passed has three options : (i) he may file application 15 seeking setting aside the ex parte decree under Order 9 Rule 13 C.P.C.; (ii) he may file review petition under Order 47 rule 1 C.P.C. or (iii) he may prefer appeal under Section 96(2) of the Civil Procedure Code. If appeal is filed under Section 96(2), the defendant may satisfy the appellate court that summons was not properly served on him. If the process server did not comply with the provisions of Order 5 rule 17 C.P.C., the ex parte decree may be set aside by the appellate court. Order 5 Rule 17 provides as under : “R. 17. Procedure when defendant refuses to accept service, or cannot be found.- where the defendant or his agent or such other person as aforesaid refused to sign the acknowledgment, or where the service officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the persons if any by whom the house was identified and in whose presence the copy was affixed.” The case of Berisal Singh (supra) is distinguishable. In that case, an irregularity in the matter of service was committed before the first appellate court and the appellate court proceeded exparte against the respondents. The respondents without 16 resorting the procedure enumerated in Order 41 rule 21 C.P.C., straightway forward filed second appeal and made a request to remand the case for fresh decision. The prayer was declined by the learned Single Judge on the ground that in the second appeal, matter could not have remanded for fresh decision as the appellant did not take recourse of the provisions contained in Order 41 Rule 21. The analogy adopted by the learned Single Judge while disposing of the second appeal is not applicable in the matter of ex parte decree against which an appeal is maintainable under Section 96(2) C.P.C. and no substantial question of law is required to be framed as is necessary under Section 100 C.P.C. while entertaining second appeal.” Although the learned counsel for the respondent has relied upon the case of Nagar Palika Nigam Gwalior (supra) and Smt. Maya Devi & ors. (supra), but considering the fact that there is an authoritative pronouncement by a Division Bench of this Court, this Bench is duty bound to follow the judgment of Division Bench of this Court. This Bench cannot be swayed by the reasoning given by Their Lordships of Punjab and Haryana High Court and of the Madhya Pradesh High Court. Considering the ratio laid down in the case of Smt. Chanda & ors. (supra), the observation made by the Board that “the appellate authority does not have the jurisdiction to examine insufficiency of the service of notice” is unsustainable. Therefore, the RAA certainly 17 had the power to examine the issue whether the notices were properly served on Ogadi Lal, Gordhan Lal and Chhitarlal. Having decided the legal issues, let us look at the factual matrix of this case, according to Mr. R.P. Garg, the observation made by the RAA that “none of the three respondents, Ogadi Lal, Gordhan Lal and Chhitarlal were duly served,” is contrary to the evidence available on record. According to the report of the process server, notices were duly served upon Gordhan Lal and Chittarlal. As far as Ogadi Lal is concerned, the process server had clearly recorded that “when he went to the village looking for Ogadi Lal, he was informed that Ogadi Lal no longer lives in the village, but he is living in Kota. Moreover, he found that Ogadi Lal's house was locked”. Since the record clearly reveals that Gordhan Lal and Chhitarlal were, indeed, served the notice, the observations made by RAA that notices were not served upon Gordhan Lal and Chhitarlal, such an observation is contrary to the record. Since the finding of the RAA is contrary to the record, this Court has no other option but to quash and set aside the orders dated 19.01.1996 and 26.08.1993 and to remand the case back to the RAA. The RAA is directed to go through the complete 18 record and to re-appreciate the evidence on the point of sufficiency or insufficiency of service of notice upon Ogadi Lal, Gordhan Lal and Chittarlal and to pass the order in accordance with law. The parties are directed to appear before the RAA on 5th October, 2009. The RAA is directed to decide this case within a period of three months from the date of appearance of the parties. The registry is directed to immediately send back the record to the concerned RAA. With these observations, this writ petition is, hereby, disposed off. An application (1499/07) has been filed on behalf of legal representatives of Kastoori is, hereby, allowed. [R.S.CHAUHAN]J A.Asopa/