- (1.) THIS is an appeal under Section 225 of the Rajasthan Tenancy Act, hereinafter referred to as the Tenancy Act, against the orders of the Revenue Appellate Authority, Udaipur dated 29th March, 1962 in appeal No. 165 of 1961 arising out of the judgment of the Sub-Divisional Officer, Nimbaheda dated 29th September, 1961 whereby the appeal against the present appellants was accepted and the case remanded to the trial court.
(2.) WE have heard the counsel for the parties and have also carefully perused the record. A preliminary objection was raised by the learned counsel for the respondents that the present appeal was incompetent since it was against the order of the Revenue Appellate Authority who only remanded the case for further enquiry and he contended that such an order was not appealable. Reference was made to Section 224 of the Tenancy Act and Order 41 Rules 23 and 25 of the Code of Civil Procedure and it was contended that the order of remand of the Revenue Appellate Authority was not covered by O. 41, Rules 23 and 25, but that it came under Sec. 151 of the Code of Civil Procedure and that no appeal lay in respect of an order passed under that section. He relied upon a ruling of the Rajasthan High Court in A. I. R. 1951 Rajasthan, page 108 wherein their lordships held that if the remand order did not fall under Rule 23 order 41, the appeal did not lie. The learned counsel for the appellants pointed out that the appeal was filed under Section 225 of the Tenancy Act against the order of the learned Revenue Appellate Authority. It was contended by him that although the Revenue Appellate Authority set aside the decree passed by the Sub-Divisional officer, he had not passed any final order. Therefore the provisions of Section 224 were unattracted but Section 225 permitted an appeal from any order. The learned counsel for the respondents rebutted this argument on the ground that Section 225 only provided for appeal from an original order under Sub-section (1) and that Sub-section (2) provided that no appeal shall lie from any order passed in appeal while actually the order of the Revenue Appellate Authority was an order passed in appeal. The provisions of appeals in the the Tenancy Act is groverned by sec. 225. The provision of the Civil Procedure Code have been made applicable to the Tenancy Act under Section 208 except "provisions inconsistent with anything in the Rajasthan Tenancy Act, so far as the inconsistency extends. "sec-tion 225 of the Act allows appeals except when it is an order "passed in appeal under this section". Section 104 and Order 43, Rule 1 of the Civil Procedure Code provide appeals only from orders mentioned therein and from "no others". Thus there is a great difference between the provisions of the two enactments. The judgment under appeal before us is not an order falling under the category of the orders but it is an order passed in appeal against the decree of the trial court under Section 223 of the Act. Therefore, it is not an order passed in appeal against an order of the trial court. An order can be deemed to have been passed in appeal under Section 225 (1) only if it is passed when an appeal is taken to the authority prescribed by Sub-sec. (1) thereof to hear the appeal against the order (as contrasted with a decree)passed by an authority mentioned therein. This is not the case in this appeal; on the other hand the judgment of the Revenue Appellate Authority being an order passed in deciding the appeal against the decree of the trial court, it would be maintainable under Section 225 (1) (iii) of the Tenancy Act. When there is a difference between the provisions of the Civil Procedure Code and the Tenancy Act the provisions of the Tenancy Act would prevail upon those of the Code under Section 208 (1) of the Tenancy Act. The decision of this Board in case No. 6/ Sikar/1960, decided on 18th October, 1960-Parta Lal Vs. Gheesa - reported in R. R. D. 1961 page 121 also supports this view. The ruling of the Rajasthan High Court cited is not relevant as it was given at the time before the present Tenancy Act came into force and the relevant provisions were different. Dealing now with the merits of the appeal the learned counsel for the appellant contended that the trial court had decided issue Nos. 1, 2 and 4 on merits and the lower appellate court set them aside but only ordered remand of the case without passing a final order after raising a number of matters which were not involved in the appeal. It was contended that the matters which the lower appellate court required the trial court to investigate were not relevant to the issue but that all the material required for a decision in appeal was already on record and that consequently the lower appellate court failed to exercise the jurisdiction vested in him to decide the appeal on merits. The counsel for the respondent replied that the matters which the lower appellate court required to be investigated were relevant for disposing of the case properly. On a carefull consideration of the Appellate Court's order remanding the case we notice that he has framed a number of issues for further investigation. These issues are more or less points for obtaining information. In our view the question raised in these proceedings is simply whether the respondents are entitled to close the Mori of the tank leading to the bed of the tank not becoming available for cultivation by the appellants by water being stored therein as a result of the closing of the Mori. The appellants are claiming Khatedari rights in the bed. The parties have led evidence and the trial court has discussed the evidence and decreed the suit of the appellants granting injunction against the respondents closing the Mori of the tank. The additional issues which have been framed by the Revenue Appellate Authority are in our view therefore, not [relevant for giving a decision on the appeal on merits and the lower appellate court should have given a decision on the material before the court and the pleadings of the parties and the evidence available. He has not in any way indicated in what way additional issues which he has framed are necessary for the disposal of the appeal. Unless he had made clear the relevancy of the issues for the proper disposal of the matter before him the framing of additional issue will only lead to the prolongation of litigation unnecessarily which should at all stages be avoided, with due regard to the proper disposal of the case. We, therefore, accept this appeal, set aside the order of the Revenue appellate Authority dated 29th March, 1962 and remand the case to him with the direction that he should give a decision on the appeal on merits in accordance with the provisions of the law. . ;