SARJOO PROSAD, C. J. - (1.) THE petitioners have prayed for a writ of certiorari quashing the order of the Board of Revenue dated 21st January, 1957.
(2.) THE dispute relates to certain lands which, according to the case of the petitioners, formed part of a block of 40 bighas known as "garh-ka-Pana" situated in village Chirana, District Jhunjhunu. THE petitioners claim that they along with the respondents Nos. 6 to 12 are co-sharers of the land in question; but according to the petitioners they had interest only in five bighas which was on the extreme cast of the land in dispute and which formed a separate piece by itself. As regards the remaining 35 bighas, they claim to have obtained settlement from their co-sharers on payment of rent under successive pattas beginning from 1935. THEy further submit that on the 18th of August, 1951, the respondents 2 to 6 dispossessed them from the lands in question and as a result of the dispossession they were compelled to file an application under section 7 of the Rajasthan (Protection of Tenants) Ordinance, 1949 (Ordinance No. IX of 1949 - hereinafter called the Ordinance) on 23rd August, 1951, before the Sub Divisional Officer of Udaipur, District Jhunjhunu, complaining of the forceful dispossession from their holding and claiming reinstatement over the same. THE claim of the petitioners was resisded by the respondents 2 to 5, according to whom the disputed 35 bighas of land were never in the cultivation of the petitioners, nor did they form part of the Garh-ka-Pana; but that these lands actually appertained to another block of lands called Kothi Paraowali, which is adjacent to the other block of Garh-ka-pana. THE alleged co-sharers respondents 6 to 12 were also made parties to the proceedings under section 7 of the Ordinance pending before the Sub-Divisional Magistrate. THE proceedings were ultimately taken up for hearing by the Anti Ejectment Officer, Sikar, who dismissed the same by his order dated 12th March, 1954, and did not grant any relief to the petitioners. Against that order the petitioners applied for revision before the Revenue Board under section 10 of the Ordinance; but the Board also dismissed the revision application on 21st of January, 1957, and an application for review filed by the petitioners before the Board likewise failed. THE petitioners now challenge the order of the Board as being manifestly erroneous and illegal. The learned counsel appearing in support of the petition has raised several points before us. He contends that the question whether the petitioners were tenants within the meaning of the Ordinance was a question collateral to the proceeding under section 7 thereof and, therefore, any decision given by the Board of Revenue on that point is open to attack in this writ application. In that connection he has relied upon the decision of the Supreme Court in Rai Brij Raj Krishna Vs. Messrs S. K. Shaw and Brothers (1), where Fazl Ali J. referred to the observations of Lord Esther, Mr. R. in The Queen Vs. Commissioner for Special Purposes of the Income Tax (2 ). The Master of the Rolls categorised jurisdiction under two heads as follow: - "when an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that tribunal or body. It may in effect say that if a certain state of facts exist and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exist and if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The Legislature may intrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further to do something more. When the Legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction, they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts, on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction. " Mr. Rastogi, learned counsel for the petitioners, contends that the present case falls in the second category. He points out that the Board of Revenue exercising its revisional jurisdiction under section 10 of the Ordinance was tribunal of limited jurisdiction and since they appear to have erroneously determined the preliminary state of facts on which their jurisdiction depends, it is open to the petitioners to question the same in this application for writ. In other words, the learned counsel invites this court to go into the evidence and then form its own conclusions whether the Board of Revenue was or was not justified in holding that the petitioners were not tenants of the land but were merely co-sharers in a joint holding. The Board of Revenue in its judgment has referred to certain facts on the basis of which it has come to the conclusion that the petitioners were merely in possession as co-sharers and nothing more. The question, therefore, arises whether this court in the exercise of its extraordinary jurisdiction should interfere with the above finding after examining the evidence for itself and then testing the correctness of the conclusion at which the Board arrived. In our opinion it is not possible for this court to do so. These questions of fact can be better investigated in a proper suit instituted for the purpose. We find that under the law the petitioners are not altogether precluded from doing so, as neither the order of the Officer under section 7 of the Ordinance nor the revisional order of the Board of Revenue affirming the same is final on the point. Learned counsel for the petitioners has also drawn our attention to a decision of this Court in Lachman Singh Vs. Ghisi Bai (3), where it was held that when a tribunal, for instance a Board of Revenue, gave itself jurisdiction by a patently wrong decision on a question of collateral fact, on which its jurisdiction depended, the High Court had jurisdiction to interfere on a writ of certiorari. The correctness of the proposition cannot of course be doubted as we have already observed earlier; but the point is whether the High Court in an application for writ can enter into the facts and the evidence in the case and then arrive at its own findings in order to interfere with the order of the Board. In the case in question their Lordships observed that there was a patent mistake made by the Board when the Board found that the applicants in that case were tenants and were entitled to reinstatement under sec. 7 without coming to any finding that the applicants there were in occupation of the holding on the 1st of April, 1948, which was the relevant date. Such a finding being absent, there was a patent error on the face of the order of the Board of Revenue and consequently a writ of certiorari might have been issued under those circumstances. Nevertheless in view of certain amendments in the law, the learned judges refused to interfere. The decision therefore, does not help the contention of Mr. Rastogi. The next submission of Mr. Rastogi is that this Court should hold that there was an error apparent On the face of the record when the Board of Revenue found that the petitioners were not tenants of the land. What he really means by "error apparent on the face of the record " is that the finding, according to him, is against the weight of evidence on the record. Any doubt or dispute as to what is meant by" error apparent on the face of the record has now been set at rest by the Supreme Court decision in Nagendra Nath Vs. Commissioner of Hills Division (4 ). It has been observed there that the common law writ which has been adopted in the Constitution is not meant to take the place of an appeal where the Statute does not confer a right of appeal. Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even though of law, will not be sufficient to attract this extraordinary jurisdiction. Their Lordships further proceeded to observe that mere errors in appreciation of documentary evidence of affidavits, in drawing inferences or in other words errors which a court sitting as a court of appeal only, could have examined, and if necessary corrected, such errors cannot be said to be errors apparent on the face of the record. Mr. Rastogi has referred to another decision of this Court in Dholpur Cooperative Transport and Multi-purposes Union Ltd. Vs. The Appellate Authority, Rajasthan (5) where Wanchoo, C. J. propounded the law on the point in these words: - "the meaning of this expression is well settled, and the error of law envisaged should be so patent that a bare perusal of the judgment and the record on which it is based would show that there was error. Where two views are, however, possible, or where the decision as to whether there is error of law can only be arrived at after long arguments, such error cannot be called error of law apparent on the record. " Mr. Rastogi stresses on the words that the error should be apparent on a perusal not only of the judgment but also of the "record", and by record he means that the Court can in that case enter into evidence and see whether on the face of the evidence the finding can be justified. We do not think that the Court can determine the question of error apparent on the face of the record by an examination of the evidence in the case and it does not appear to us that the learned Chief Justice intended to lay down any such proposition. He cited with approval the decision of the Bombay High Court in K. P. Mushran Vs. B. C, Patil (6) which is as follows: - "the error of law which can be considered to be apparent on the face of the record is not an error which can be pointed out to the superior court after a long and elaborate argument. It has been often said that court of jurisdiction may decide wrongly in law and yet the superior court will not interfere with its decision. But the error of law contemplated is an error so patent, so manifest, that the superior court will not permit the subordinate court to come to a decision in the face of a clear ignorance or disregard of a provision of law. If a section of a statute is clearly misconstrued or if a provision of the law is overlooked or not applied, and that appears from the judgment of the lower court itself, then the superior court may interfere by a writ of certiorari. " Therefore, the error must be patent and manifest on a bare perusal of the order itself, and it must be an error of law. We do not think any such error has been committed by the Board of Revenue in the circumstances of this case. It is then contended before us that the Board of Revenue has not determined the question of possession which was one of the essential questions to be determined in the case. It appears that when a revision application was filed before the Board, by its order dated 3. 6. 53 vacated the order of the Anti-Ejectment Officer and directed further enquiries to be made in the matter. The then Anti-Ejectment Officer, who succeeded the previous officer, after recording further evidence of the parties held that the land in question was never proved to have remained in the cultivatory possession of the applicants and, therefore, they were not entitled to reinstatement on the land, and accordingly rejected the application. Of course, at the end of the order the Board observes that since it had been found that the petitioners were not tenants at all within the meaning of the Ordinance and the finding went to the root of the matter, it was unnecessary to examine the merits of the claim of the apposite party to the land in dispute. We do not think that there was anything illegal in refusing to go into the question of title of the opposite party when the petitioners had not been able to establish before the Board that they were really tenants on the land. Mr. Rastogi has further submitted that even assuming that the petitioners were cosharer they could still be tenants on the land because they were paying rent to the other cosharers and the Board of Revenue was in error in drawing upon analogies from other laws on the subject. He contends that there was no bar in the Ordinance itself to present a person from acquiring tenancy rights in the lands of his co-sharers. The decision on the point rests upon various questions of fact and even as a broad proposition of law it is not free from difficulty. Generally speaking a co-sharer cannot be a co-sharer landlord and a tenant at the same time and the Board may not be wrong in assuming that it was really for the petitioners to prove that they were tenants and that whatever was paid by them to their co-sharers was in the nature or rent payable under the law. Even assuming, however, that the decision of the Board is erroneous on the point, that may be a mere error of law and even if two views are possible on the subject this Court cannot interfere by issuing a writ of certiorari, and quashing the order or the Board on that ground. We find that in this case the order of the Board of Revenue is not final and it is open to the petitioners to institute a suit for declaration of their right or title to the land in question under sec. 183 of the Rajasthan Tenancy Act, if so advised. There is a clear authority of this Court on the subject in Panna Vs. The Board of Revenue for Rajasthan (7) where it was held that - "proceeding under the Rajasthan (Protection of Tenants) Ordinance are summary and are not of the same character as a suit. There is no provision for appeal and there is no provision in the Ordinance making the order final. In these circumstances the decision arrived at in proceedings under the Ordinance cannot be res-judicata in a subsequent suit between the same parties. " Mr. Datt is right in contending that these provisions are merely in the nature of summary proceedings on the analogy of suits under sec. 9 of the Specific Relief Act. Even before the Rajasthan Tenancy Act came into operation there was an analogous provision under sec. 9 of the Jaipur Tenancy Act under which a suit could lie for the purpose. We therefore, think that this remedy is wholly mis-conceived and the application must, therefore, be rejected with costs : hearing fee Rs. 50/ -. . ;