Decided on January 04,1957

UNION OF INDIA Respondents


- (1.) IN these two cases (Civil Miscellaneous No. 194-C of 1935 and Supreme Court appeal No. 2 of 1956) certain questions of law have been referred to a Full Bench by two different Division Benches. In Civil Miscellaneous No. 194-C of 1955 the following question has been referred- "when the High Court refuses to issue a writ under Article 226 of the Constitution, does the order of the High Court amount to a judgment or a final order within the meaning of Article 133 of the Constitution and does an appeal lie to the Supreme Court under Article 133 (1) (a) or 133 (1) (b) provided the subject-matter of the appeal is worth Rs. 20,000/-or more?" in the Supreme Court Appeal No. 2 of 1956 the two questions which have been referred are- (1) Whether an order passed by this Court de-clining to issue a writ under Article 226 of the Constitution can be regarded as a judgment, decree or final order within the, meaning of Article 133? and (2) Whether the proceeding in which such an order is passed can be regarded as a civil proceeding within the meaning of the said Article. The former case arises out of proceedings before the Deputy Custodian-General before whom the disputants were Amar Kaur, widow of Harnam singh, and Parkash Kaur, widow of a pre-deceased son of Harnam singh. In the Jamabandi of Chak No. 95-12l in Tehsil and District montgomery (now West Pakistan) both these widows were recorded as proprietors of land in equal shares. After the partition Amar Kaur made an application that the entire land should be allotted to her on the ground that the widow of a predeceased son was not entitled to succeed equally with the widow of the last holder and this application was allowed. A revision was taken to the Additional Custodian who set aside the order and restored the allotment in the name of both the widows. Amar Kaur took a revision to the Custodian-General who gave no decision and ordered that the entries in the Jamabandi of Montgomery should be followed and directed the parties to have their dispute settled by the civil Court. The dispute really was whether the parties were governed by Hindu Law or by custom.
(2.) AGAINST this order an application was made to this Court under Article 226 of the Constitution of India praying for a writ of certiorari for quashing, the orders passed by the Deputy Custodian-General and the Additional Custodian and for restoring the order of the Deputy Custodian, i. e. for the allotment of the land to the petitioner. This petition-was dismissed in limine by a Bench of this Court consisting of Bhandari C. J. and Dutat J. , and an application has been made for leave to appeal to the Supreme Court under Article 133 (1) of the Constitution of india.
(3.) I must here mention that no rights were determined by the Custodian-General. All that he did was to allow the allotment to be made in conformity with the entries in the Jamabandis from Montgomery in West Pakistan and followed the usual rule of the Rehabilitation Department that lands are to be allotted in accordance with the entries in the Jamabandis, and he has directed the parties to have their, rights determined by a civil court. The only question which has been referred for determination by the Full Bench in this case is whether the order of this Court dismissing the application in limine and just writing 'dismissed' amounts to a judgment or at final order within the meaning of Article 133 (1) of the Constitution of India.;

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