Chhail Behati Lal - (1.) THE above noted revision petitions have arison from the orders of the Collector Nagaur of dates mentioned in each case, in connection with proceedings to recover the patta fees for plots of land for building purposes in Makrana, which had been sold at very low rates to the petitioners by the Jagirdar having no authority on account of his estate being under the management of Haisiyat Court.
(2.) THE learned Government Advocate raised a preliminary objection that the revision petitions are incompetent under sec. 26 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 according to which revisions are entertainable in the Board only in cases, decided by a subordinate Revenue Court, in which no appeal lies to the Board and that in these cases appeals from orders of the Collector lie to the Commissioner from whose orders a second appeal lies to the Board. The counsel for the petitioners have urged, that in these cases the original orders were passed by the Naib Tehsildar against which no appeal could lie to the Board and that the Board can exercise its discretion in consideration of the nature of case. As regards the first point, the petitioners in these cas2s have applied in revision against the order of the Collector and not against the orders of the Naib-Tehsildars. The latter are mere reports submitted to the Collector for orders. A first appeal against the Collector's order lies to the Commissioner under sec. 19 (iv) of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, and from the appellate orders of the latter a second appeal lies to the Board under sec. 2o (iii) of the Act. Thus an appeal from the original orders of a Collector lies directly to the Commissioner and indirectly to the Board. The second point concerns the applicability of sec. 26 of the Revenue Courts (Procedure and Jurisdiction) Art. 1951 and the circumstances warranting an interference by this Board in orders passed by a subordinate Revenue Court. The section is as follows: - "power of the Board to call for cases - The Board may call for the record of any case decided by any subordinate revenue court in which no appeal lies either to the Board or to a civil court under sec. 26 and, if, such court appears: - (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the Board may pass such orders in the case as it thinks fit. " The section is just a copy of sec. 115 of the Civil Procedure Code with the substitution of the words "either to the Board or to a civil court under sec. 26" for the word "thereto". We are not concerned in this case with the words "to a civil court under sec. 26" as these relate to the issue of proprietory rights involved in a case. There are various decisions of the High Courts on the scope of sec. 115, Civil Procedure Code and on the circumstances in which the High Court is competent to entertain a revision from an order of the lower court. The learned counsel for the petitioners have referred me to the following three cases - (1) Tipan Prasad Singh and others vs. Secretary of State (A. I. R. 1935, Patna, 36) (2) Banwari Lal vs. Chedi Lal (A. I R. 1934, Allahabad, 250) (3) Gulab Chand vs. Kishanlal (1951 R. L. W. 119 ). In the first case, Fazl Ali, J. held: - "it is true that ordinarily this court will be reluctant to entertain an application in revision where the party has not resorted to a remedy avaliable to him by way of appeal, but it does not follow that merely because the petitioners did not prefer an appeal to the District Judge in this case, the High Court has no power to interfere in revision. Sec. 115 provides that the High Court may act under that section in a case which has been decided by a court subordinate to it and in which no appeal lies to the High Court. It does not provide that it cannot interfere in a case where an appeal lies to the High Court. It does not provide that it cannot interfere in a case where an appeal lies to an inferior court. " In the present cases an appeal lies indirectly to the Board. The circumstances in the second case were quite different. In that case the Munsif originally dismissed the opposite party's suit and there was an appeal to subordinate Judge which failed owing to the law of limitation. A second appeal was made to the High Court which was dismissed. The Munsif reviewed his order. In revision from the order in review, Kandall, J. held that - "the matter can be and should be disposed of simply on the ground that the Munsif could not reopen the matter that had been concluded by the decree of the High Court and that he therefore acted irregularly and without jurisdiction in granting the review. " The third case does not help the petitioners as the preliminary objection in that case was that there was no case decided in the trial court and therefore revision application did not lie to the High Court. In that case Dave, J. has held - "sub-sec. 6, sec. 115 Civil Procedure Code, would apply if the court, whose order is sought to be revised, has got proper jurisdiction but in exercising that jurisdiction it contravenes some provision of law or it commits some grave error of procedure effecting right of the parties to the case. If the procedure laid down by law gives a certain right to any party and if that right is denied to that party by the court by deviating from the prescribed procedure it is a case decided and would warrant interference in revision. " Thus the scope of the words "case decided" was considered in the judgment of the learned judge and not the question whether a revision petition can be entertained in a case in which an appeal lies to the Board. Besides, with all respects to the learned judges, I would say that these are all single judge decisions. Recently in a Division Bench decision of the Rajasthan High Court in the case Pyar Chand vs. Dungar Singh, Civil Revision No. 83 of 1950 decided on 18th July 1952 (R. L. W. 1952, page 342) the Hon'ble Chief Justice Wanchoo and Justice Bapna have discussed the opinions expressed by the High Courts in a large number of cases, on the conditions under which a petition is entertainable in revision. They have held as follows: - "the nature of the order to be revised under sec. 115 should be such as to be concerned with jurisdiction ; if the order in revision has nothing to do with a question of jurisdiction, either with its exercise or its non-exercise or illegality or material irregularity in its exercise, the High Court will not interfere and consequently, will not entertain the revision. But before the High Court goes into the question whether the order is of this nature the preliminary conditions mentioned in the first part of sec. 115 have to be fulfilled. These preliminary on conditions are there in number, (1) there should be a case decided, (2) the decision should be of any court subordinate to the High Court and (3) no appeal should lie from that decision to the High Court. It any of these three conditions is absent, the High Court will not be competent to entertain the revision even though the point raised in the revision is a question of jurisdiction and is covered by clauses (a), (b) or (c) of sec. 115. A case is said to be decided when the court considers any state of facts juridically and gives a decision relating to a question in controversy between the parties affecting their rights This is, however, not enough to make the revision entertainable. It has further to be shown that no appeal lies from that order to the High Court whether directly or indirectly. If there is a direct appeal to the High Court, namely a first appeal, the revision will not be competent. Even if there is an indirect appeal, namely, a second appeal or the order in question can be taken in either first or second appeal to the High Court taking a ground of appal under sec. 105, the High Court will not be competent to entertain a revision.
(3.) THE three preliminary conditions, as explained in the above Division Bench judgment of the Rajasthan High Court, have to be complied with before a petition is held entertainable in revision. In the present cases the Collectors' orders are appealable to the Commissioner and a second appeal from the order of the Commissioner lies to the Board. Thus appeals from the orders of the Collector lie indirectly to the Board. Moreover a revision petition can be brought to the Board only when all remedies are exhausted. As such the revision petitions art incompetent and not entertainable and I reject the petitions. .;