Decided on August 05,1954

Gamerlal Appellant
RAMNARAYAN Respondents

Referred Judgements :-



Dixit, J. - (1.)THIS is an application under Article 227, Constitution of India praying that the decision of the Board of Revenue in Revision Petition No. 559 of 1949, 'Ramnarayan v. Gamerlal' be set aside as being without jurisdication and altogether erroneous.
(2.)THE circumstances out of which this petition arise are as follows: The Petitioner was in possession of certain Pukhta Maurusi holding under a Putta given by Onkarlal a brother of the opponent Ramnarain. On 30 -3 -1948 Ramanarain instituted proceeding before the Tehsildar of Pargana Mandsaur for ejecting Gamerlal from the holdings.
After enquiry, the Tehsildar made an order on 26 -5 -1949 ejecting the Petitioner from certain specific holdings admeasuring forty Biglras. Gamerlal then presented an appeal before the Revenue Commissioner of Ujjain Division against the decision of the Tehsildar. In this appeal the decision of the Tehsildar was set aside and Ramnarain's claim for ejectment was rejected. Thereafter Ramnarain preferred a revision petition to the Board of Revenue.

The Board of Revenue allowed the petition, reversed decision of the Revenue Commissioner and restored order of the Tehsildar. Gamerlal then filed a review petition before the Board. In that petition he urged that the Board of Revenue had no jurisdiction to entertain any revision petition from the decision of the Revenue Commissioner which was Under Section 319(8) of Kanoon Mal and Section 2(9), Gwalior Code of Civil Procedure, final (sic) and that the findings of law and fact given by the Board of Revenue were wrong.

The Board of Revenue rejected the review petition holding that a wrong exposition of law or a wrong application of law or a wrong finding of fact could be no ground for review and that as the point about the jurisdiction of the Board to entertain a revision petition against the decision of the Commissioner was not raised at the time of the hearing of the revision petition, it could not be entertained as a ground for review.

In my opinion it is not necessary to consider at this stage whether the conclusions of law and facts arrived at by the Board of Revenue pertaining to the question of ejectment of the Petitioner from the Maurusi holdings, are such, which having regard to the decision of this Court, in - 'Jagannath v. Mst. Puniya' : AIR 1952 Mad 51 (AIR 39) (A) and of the Supreme Court in - 'Waryam Singh v. Amarnath' : AIR 1954 SC 215 (AIR v. 41) (B) can be interfered with by this Court. For, the case must be remitted to the Board Revenue for proper decision of the question of its jurisdiction to revise a decision of the Revenue Commissioner and for the disposal of the review petition according to law.

The question which the Petitioner put forward in the review petition did not involve any investigation into facts. It rested on the construction and application of certain provisions of Kanoon Mal and the Gwalior Code of Civil Procedure. It was, therefore, incumbent on the Board to consider the question and express a concluded opinion on it.

The fact that no objection was taken as to the jurisdiction of the Board when the revision petition was heard, did not invest the Board with authority to entertain the revision petition if under the law none existed. It is equally clear that the Board could not assume jurisdiction forbidden by law merely be cause the question of jurisdiction was controversial. The Board should have considered the question as to jurisdiction, indicated as to how it was not free from difliculty and come to a definite opinion on it.

The point Could not be summarily dismissed by a statement that it was debatable. For the benefit of the Board I may say that there are many decisions to the effect that an order or a decision which is erroneous because it overlooks a clear want of jurisdiction is one which can be corrected in review, I need only refer to - 'Lahari and Co. v. Makhanlal : AIR 1935 Cal 153 (1) AIR (V22) (C) and - 'Venkatarayalu Naidu v. Rattamma Garu' : AIR 1939 Mad 293 (AIR - V26) (D).

(3.)I would, therefore, quash the decision of the Board in the review petition filed by Gamerlal and direct the Board to dispose of the review petition in the light of observations made in this order. There will be no order as to costs of this application.
Chaturvedi, J.


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