- (1.) PER Shri Ujjwal, Chairman and Shri Balwant Singh This is a reference by the Division Bench consisting of Shri R. N. Madhok and Z. S. Jhala to the Chairman for constituting a full bench for a pronouncement on the following points: - (1) Whether the order passed by Shri Shyamlal in the present case is a legal order within the meaning of rule 10 of the Revenue Courts Manual, Part I; (2) If the answer to (1) is in the negative, how should the case be proceeded with further? Briefly stated the facts of the case are that the present respondents instituted a suit in the court of the Assistant Collector, Tonk for ejectment under sec. 183 (b) of the Rajasthan Tenancy Act in respect of the land in dispute khasra Nos. 294, 196/2820 196/2821 and 221 of village Khatmana, Tehsil Tonk. The respondents alleged that in respect of first three khasra numbers mentioned above they were the khatedar tenants and in respect of the last mentioned they were sub-tenants. It was further alleged by them that in Smt. 2009 the appellants agreed to construct a well for irrigation purposes and in lieu thereof ten bighas of pucca land (khasra No. 221) were given to them for cultivation. The respondent alleged that the appellants wrongfully took possession over the other khasra numbers as well and hence it was prayed that a decree for ejectment be passed against them. The appellants denied the suit and pleaded that they were the khatedar tenants of the disputed land. The trial court framed the following issues: - (1) Are the plaintiffs tenants of khasra Nos. 224, 196/282 and 196/2821 and were they in possession till last year? (2) Have the defendants wrongfully taken possession over the disputed land and are therefore liable to ejectment? (3) From which khasra No. 10 bighas of land was given over to the defendants in lieu of construction of a well; from khasra No. 221 or from khasra No. 224, 196/2820 and 196/2821? (4) Did the plaintiffs hand over 10 bighas of land from khasra Nos. 224, 196/2820 and 196/2821 to defendant No. 1 in Smt. 2010 and has the defendant acquired the status of a khatedar tenant in respect thereo? (5) Is the suit bad for mis-joinder of parties? (6) To what relief are the plaintiffs entitled? The trial court without recording separate findings on the issues mentioned above dismissed the suit after a brief discussion of the evidence. In first appeal objections were raised to the effect that the trial court had not given proper attention to the disputed points and that the judgment was not a proper one. The learned Additional Commissioner, however, held that "it was the duty of the trial court to frame one more issue to the effect ''whether the defendants are in possession of the land comprising No. 221 as tenants and in their own right". The appeal was, therefore, allowed and the case was remanded with the direction to frame an additional issue, to record fresh evidence of the parties and thereafter to decide it again. The Division Bench which heard the second appeal could not come to a unanimous view. Shri R. N. Hawa, a learned Member of the Bench was of the opinion that the points suggested by the learned Additional Commissioner for a fresh issue stood already covered in issues No. 2 and 3 framed by the trial court and as such a remand was unnecessary. He was, therefore, of the opinion that the appeal should be allowed and the order of the lower court should be set aside and the case should be remanded to it with the direction that the appeal filed before it should be heard and decided on merits. The Other learned Member Shri Khem Chand did not examine this aspect of the case. He was of the opinion that the question as to whether a fresh issue was required to determine the controversy or not was purely a question of fact and as such no second appeal would lie on the point. This aspect of the case does not appear to have been examined by the other learned member. But by implication it may be inferred from the judgments that the other learned member would not have taken this view. Thus the point on which the learned members are divided in their opinion in this appeal was "whether a question regarding scope of the issues framed in a suit should be deemed to be a question of fact on which second appeal did not lie. "
(2.) THE learned Chairman Shri Shyamlal after careful consideration came to the conclusion that the question whether the first appellate court in the present case properly appreciated the scope of the issues framed in it or not was a question of law and therefore agreeing with Shri R. N. Hawa held that the second appeal was not liable to rejection. THE learned Chairman sent back the case to the bench concerned for further hearing on merits. When this subsequently came up for hearing before the Division bench, Shri R. N. Hawa and Shri Khemchand were no longer on the strength of the Board of Revenue. As such the case was heard by Shri R. N. Madhok and Shri Z. S. Jhala. The division bench which was seized of this case was in doubt about the legality of the order passed by the former Chairman Shri Shyamlal. The Division bench referred to the procedure prescribed in rule 10 of the Revenue Courts Manual, Part I, which lays down that in the event of difference of opinion between two members constituting a Bench, the differing opinions shall be submitted in the form of opinions on the case to a third member nominated by the Chairman who shall hear and dispose of the case finally. Copies of the opinions will be supplied to counsel for the parties before the final hearing of the case. The learned Members of the Division Bench held that in their opinion the case should have been disposed of finally by Shri Shyam Lal who formed the view that the appeal was maintainable; but instead of expressing any opinion on the merits of the appeal he directed that the Division Bench in which difference of opinion had arisen should hear the appeal on merits. The learned Division Bench further held that in their opinion the order passed by the former Chairman Shri Shyamlal did not constitute a final disposal of the case and that a final disposal would have taken place only if Shri Shyamlal had either agreed with Shri Khemchand that the appeal was not maintainable or he had agreed with Shri Hawa that the appeal should be accepted on merits. Since a substantial point of law had arisen the case was referred to the Chairman for constituting a full bench. This reference has, therefore, come up for hearing before the full bench and both the counsel for the parties have argued this reference before us. The learned counsel for the appellant Shri S. N. Parikh had argued that Shri Shyamlal has correctly decided the reference and as such this reference is incompetent. He has also argued that the reference is incompetent under sec. 11 of the Rajasthan Land Revenue Act as the case arises out of the proceedings under the Rajasthan Tenancy Act and the procedure provided in a case of difference of opinion would be as provided under sec. 98 of the C. P. G. Sec. 208 of the Rajasthan Tenancy Act read with 4th schedule makes the provision of sec. 98 applicable to proceedings under sec. 208 of the Rajasthan Tenancy Act and the procedure provided in the Code of Civil Procedure in the case of difference of opinion will be deemed to have been incorporated in Rajasthan Tenancy Act by virtue of sec. 208 of the Rajasthan Tenancy Act and therefore the reference under sec. 11 of the Land Revenue Act is incompetent. He has cited the following rulings in support of his contention : AIR 1943 Patna page 433 relevant page 445 according to which it has been held that where the Bench hearing the appeal is composed of two Judges, belonging to a court consisting of more than two Judges and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority ( if any ) of the Judges who have heard the appeal, including those who first heard it. AIR 1958 Patna page 290 according to which it has been held that where in an appeal the case is referred to a third judge on difference between two judges who heard the appeal it is not open to the third judge to adjudicate upon the point on which there is no difference of opinion between the two judges. AIR 1958 Madhya Pradesh page 380 para 49 in which the third judge has held that "i am entitled to decide only the point of difference between the learned judges and not any point on which they have agreed". The counsel for the respondent has also argued before us that this reference by the Division Bench is incompetent and has further argued that a full bench cannot sit in judgment on the findings of Shri Shyamlal even though they may be right or wrong. He has further contended that the Division Bench to which the case was sent back by the Chairman Shri Shyamlal is competent to take any decision it likes. We have carefully heard the learned counsel for the parties and have also gone through the entire record of the case. The provisions of sec. 13 of the Rajasthan Land Revenue Act do not apply in a case arising out of the proceedings under Rajasthan Tenancy Act but the provisions under sec. 98 of the C. P. C. would apply. The provisions of sec. 98 C. P. C. being deemed to have been incorporated in Rajasthan Tenancy Act will be deemed to have been affected. Therefore the third member to whom the case was referred will have power only to give a decision on the point of law and not on merits. Under sec. 98 of the C. P. C. when two judges write different opinions and separate judgments an order on the order sheet may be deemed sufficient compliance of the provision of sec. 98 of the C. P. C. This position of law has been clearly laid down in AIR 1943 Patna page 433 relevant page 445 according to which when the judges have stated their respective view and that in the "order sheet" they have laid down for being referred to a third judge the intention of making a reference is clear and by writing two judgments it does not amount to deciding a case clearly. In AIR 1958 Patna page 290 para 8 it has been clearly held by the Honourable Judges that a 3rd judge to whom the case has been referred has only the power to decide the point on which there was a difference of opinion between the two judges. This proposition of law has been also enunciated in AIR 1958 Madhya Pradesh page 38 para 49 laying down that the third judge is entitled only to decide the point on which there was difference of opinion. In the present case Mr. Hawa has given the decision on merits while Mr. Khemchand disagreeing with him has opined that as there was no point of law involved he did not examine the case on merits and therefore two different judges have not examined the case on merits. Nor has Mr. Shyamlal examined the facts of the case and therefore his order laying down that the case be put up before the Division Bench concerned for decision is perfectly justified. Sec. 13 (2) of the Rajasthan Land Revenue Act lays down specifically that the case will be referred to a third member and decided according to majority. The word "case" in sec. 13 (2) refers only to the points in dispute between two judge and not the points which have been argued before the differing judges. This larger bench is not sitting in appeal or in review against the order of Shri Shyamlal who has given a direction that the case be put up to a Division Bench for decision on merits. The scope of sec. 13 (2) is much wider than sec. 98 C. P. C. and if he has declined to examine the case on merits it does not render his order illegal. Under the circumstances the opinion in reply to the reference of the Division Bench dated 25-4-63 would be that the order of Shri Shyamlal dated 5-12-60 was perfectly justified and legal. The case is sent back to the Division Bench for proceeding further according to law. Per Shri G. B. K. Hooja - I agree with my learned brother, Shri Balwant Singh, that the order of Shri Shyam Lal cannot be termed as illegal on the ground that he had declined to examine the case on merits. It is true that Rule 10 of Chapter II of Part I of the Rajasthan Revenue Courts Manual lays down that the third member nominated by the Chairman to hear a case in the event of a difference of opinion between two members constituting a Bench, shall dispose of the case finally, after the differing opinions have been submitted in the form of opinions on the case to him. Strictly speaking, the law required Shri Shyam Lal to dispose of the case finally, but in not doing so and in pronouncing his opinion only on the law point involved he cannot be said to have acted illegally. Apart from the aforesaid Rule 10, the procedure relating to the decision in case of difference of opinion between the members of a Bench of the Board is also laid down in sec. 13 of the Rajasthan Land Revenue Act, 1956 which reads as follows - "13. Decision in case of difference of opinion - (1) Where a case is heard by a Bench of the Board, the decision of such case shall be in accordance with the opinions of the majority of the members, who hear it. (2) Where such members are equally divided in opinion as to the order to be made in such case, the case shall be referred to another member and decided in accordance with the opinion of the majority of the members including such other member who heard it. " As regards the Rajasthan Tenancy Act, the procedure would appear to be governed by sec. 98 C. P. C. , in view of sec. 208 of the Rajasthan Tenancy Act according to which the provisions of the Code of Civil Procedure shall apply to all suits and proceedings under this Act except - (a) provisions inconsistent with anything in this Act, so far as the inconsistency extends, (b) provisions applicable only to special suits or proceedings outside the scope of this Act, and (c) provisions contained in list 1 of the Fourth Schedule, subject to the modifications contained in List II of the Fourth Schedule. As sec. 98 C P. C. does not find a mention in Lists I or II of the aforesaid schedule, it would obviously govern the cases falling within the scope of this section, which relates to decision where an appeal is heard by two or more Judges. To recapitulate, sec. 98 C. P. C. reads as follows - 98. (1) Where an appeal is heard by a Bench of two or mere Judges, the appeal shall be decided in accordance with the opinion such judges or of the majority (if any) of such Judges. (2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decision shall be confirmed; Provided that where the Bench hearing the appeal, is composed of two Judges belonging to a Court consisting of more than two Judges, and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal, including those who first heard it. (3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court. The argument that R. 10 of Chapter II of Part I of the Rajasthan Revenue Courts Manual follows neither sec. 13 (2) of the Land Revenue Act, nor sec. 98 of the C. P. C. has no weight. For facility of comparison it may be quoted below - "10. Procedure in case of difference of opinion. In the event of a difference of opinion between two members constituting a Bench, differing opinions shall be submitted in the form of opinions on the case to a third member nominated by the Chairman, who shall hear and dispose of the case finally. Copies of the opinions will be supplied to counsel for the parties before the final hearing of the case. " According to sec. 13 (2) of the Land Revenue Act, where the members of the Bench are equally divided the case has to be referred to another member, and decided in accordance with the opinion of the majority including such other members who heard it. According to sec. 98 C. P. C. , where the Bench hearing the appeal is composed of two Judges, and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ, and the appeal shall then be heard upon that point only, by one or more of the other Judges, and such point shall be decided according to the opinion of the majority of the Judges including those who first heard it. According to R. 10 of the Rajasthan Revenue Courts Manual, in the event of a difference of opinion between two members constituting a Bench, the differing opinions to a third member who shall hear and dispose of the case finally. Evidently, in giving his decision he will agree either with one member or the other. As such, the judgment to be followed will be that of the majority of the members including the members who first heard it, which is the essence of the law as laid down in sec. 13 (2) of the Land Revenue Act as well as sec. 98 of the C. P. C. During the course of the arguments a reference was also made to sec. 261 (2) (ii) of the Land Revenue Act which authorises the State Government to make rules, consistent with the provisions of this Act, prescribing under sec. 10 the manner in which the jurisdiction of the Board may be exercised and its business may be distributed. It was argued from this premise, that the power to make rules under sec. 10 of the Rajasthan Revenue Courts Manual, having been conferred on the Government, the Board was not competent to frame rules, governing the manner in which the jurisdiction of the Board has to be exercised. As such, it was contended. R. 10 was ultra vires of the Land Revenue Act. A perusal of sec. 261 sub-sec. (1) (a) shows that the Board is competent with the previous sanction of the Government to make rules consistent with the provisions of this Act and of the rules made under sub-sec. (2), regulating the procedure of the Board and its officer in the transaction of its business. It is obvious that the aforesaid R. 10 has been framed under this authority and cannot be held to be invalid. In fact, a plain reading of secs. 10,11,12 and 13 of the Land Revenue Act would show that their purpose is to lay down the law regulating the jurisdiction and the business of the Board. If a rule is not consistent with these provisions of law it will be held to be invalid, but where a rule is consistent with these provisions of law it has the force of law and has to be followed. In the present case, Shri Shyamlal came to the conclusion that the question whether the first appellate court in the present case had properly appreciated the issues framed in it or not, was a question of law, and, therefore, agreeing with Shri R. N. Hawa held that the second appeal was not liable to rejection on this point alone and sent the case back to the Bench concerned for further hearing on merits. Alternatively, he could have examined the case on merits as well and could have given his final judgment. In doing so, he would have fulfilled the intentions of R. 10 of the Revenue Courts Manual. Nevertheless, in hearing the argument only on the point of law he cannot be considered to have committed an illegality. As the history of the case shows, the basic difference of opinion between the two differing members was whether a question regarding the scope of issues framed in a suit should be deemed to be a question of fact or law. Apparently,the then Chairman Shri Shyamlal, decided to follow the provisions of sec. 98 of the C. P. C. and gave his judgment only on the point of law holding that the appeal was maintainable. In doing so, he followed the traditional practice as enunciated in 1933 All. 861, 1958 M. P. 380, 1958 Patna, 290 in which it has been consistently held that where a D. B. makes a reference, only the point of difference should be adjudicated upon, and not the whole case. The gist of the whole argument is that Shri Shyamlal was well within his powers to decide the case finally but in not doing so and in giving judgment only on the point of law which was the basis of the difference between the two differing members, he did n (ot act illegally and as long as his order is not upset in accordance with the provisions of law, it holds the field. The full Bench, as now constituted, has no authority to sit in judgment on Shri Shyamlal. As long as his judgment stands unamended the D. B. to which the case has been referred, must act in accordance with the same as the judgment of the third member coupled with the opinions of the two differing members, who had earlier heard the case, forms a majority judgment, holding that the question involved was a question of law and the second appeal was, therefore, maintainable, and should be considered on merits. I, therefore, agree with my. learned brother, Shri Balwant Singh, that the reply to the reference made by the D. B. should be that the order of Shri Shyamlal dated 5-12-60 was not an illegal order and they should proceed with the case as indicated therein. Per Shri R. N Madhok - I have had the benefit of going through the orders that my learned brothers Sarva Shri Balwant Singh and G. B. K. Hooja propose to make in this case. Since my own appreciation of the law applicable to this case some what differs from theirs, I respectfully set out my views below. The first question that arises is whether the procedure to be followed by this Board in cases of a difference of opinion in a Division Bench would be governed by sec. 13 of the Rajasthan Land Revenue Act 1956 read with Rule 10 of the Rajasthan Courts Manual or sec 98 of the Code of Civil Procedure. My own view is that the appropriate law which is attracted in the matter of the procedure of the Board is the one laid down in the Rajasthan Land Revenue Act and the Rules made thereunder. This enactment is a later piece of legislation than the Rajasthan Tenancy Act and is in the nature of a special enactment dealing with the appointment, powers and duties of revenue courts and officers. I am well aware that under sec. 208 of the Rajasthan Tenancy Act 1955, the provisions of the Code of Civil Procedure have been made applicable to suits under that Act, and that sec. 98 of the Code has not been enumerated in the Fourth Schedule of the Tenancy Act as a provision which has not been extended to the suits and proceedings under this Act. I am also mindful of the fact that sec. 2 of the Rajasthan Land Revenue Act 1956 provides that nothing in this Act shall be construed to affect or restrict the operation of the provisions of the Rajasthan Tenancy Act 1955. There is undoubtedly an inconsistency in the sense that on the one hand the Rajasthan Land Revenue Act 1956 and the Rules made thereunder make specific provision with regard to constitution and procedure of the Board, while sec. 208 of the Rajasthan Tenancy Act extends to suits under the Tenancy Act the general procedural provisions of the Code of Civil Procedure. In my opinion, this inconsistency has to be resolved by a harmonious construction, and in my opinion this can be done if it is held that where the Rajasthan Land Revenue Act or the Rules made thereunder make a specific provision, the general provisions of Code should be ignored. On this reasoning the procedure to be followed by the Board in case of a difference of opinion in a Division Bench would be the procedure laid down in sec. 13 of the Rajasthan Land Revenue Act 1956 read with Rule 10 of the Rajasthan Revenue Courts Manual. Some doubt has been expressed regarding the validity of Rule 10 of the Revenue Courts Manual. It has been contended that Rule JO of the Revenue Courts Manual which has been framed by the Board with the approval of the State Government is not valid because this rule could only have been framed by the State Government. It seems to me that sec. 261 of the Rajasthan Land Revenue Act leaves no room for doubt on this point. Sub-sec. (1) says that the Board may, with the previous sanction of the State Government, make rules consistent with the provisions of the Act and the rules made under Sub-Sec. (2 ). In Sub-Sec. (2) are enumerated the matters regarding which the State Government may make rules. It has been contended that clause (ii) of Sub-Sec. (2) reserves the powers of rule making under sec. 10 of the Act to the State Government. So far as Rule 10 of the Revenue Courts Manual is concerned, it does not fall under sec. 10 of the Act but under sec. 13 which deals with cases of difference of opinion in a Bench of the Board. Clause (a) of Sub-Sec. (1) clearly confers on the Board the power of making rules with the previous section of the State Government to regulate the procedure of the Board and its officers in the transaction of its business. I have no doubt that Rule 10 of the Revenue Courts Manual which falls under sec. 13 of the Act has been validly made by the Board with the previous sanction of the State Government in accordance with the provisions of Sub-Sec. (1) of sec. 261 of the Rajasthan Land Revenue Act 1956. Looking at the matter from a different angle, it may be said that since the State Government has framed no rules under Sub-Sec. (2) of sec. 261 whatever rules of procedure have been made by the Board with the previous sanction of the State Government under Sub-Sec. (1) shall hold. The next question is whether there is any inconsistency between sec. 13 of the Rajasthan Land Revenue Act and Rule 10 of the Rajasthan Revenue Courts Manual. I agree with my learned brother Shri G. B. K. Hooja that on a plain reading of sec. 13 of the Land Revenue Act and Rule 10 of the Revenue Courts Manual there is no conflict between them. On the above reasoning my view is that the present case is governed by sec. 13 of the Rajasthan Land Revenue Act and Rule 10 of the Revenue Courts Manual.
(3.) IN my opinion the order passed by Shri Shyam Lal does not lead to a proper disposal of the appeal in conformity with sec. 13 of the Rajasthan Land Revenue Act read with Rule 10 of the Revenue Courts Manual. Shri R. N. Hawa, one of the Members on the Division Bench, held the appeal to be maintainable and proposed that it should be accepted and the case remanded to the lower court. Shri Khem Chand, the other member on the Division Bench, held that the appeal was not maintainable at all. Shri Shyam Lal merely held the appeal to be maintainable. Thus there were three opinions on the appeal which had to be decided according to the majority opinion from out of the three opinions and this majority opinion is only with regard to the preliminary point of the maintainability of the appeal, while there is no majority opinion regarding the acceptability or otherwise of the appeal on merits. I am of the opinion that Shri Shyam Lal could not have ordered that the Division Bench in which the difference of opinion arose should hear the case on the merits, and that he should have himself passed an order regarding the acceptability or otherwise on the appeal on merits. Having pointed out this illegality, I am of the view that this larger Bench has the inherent power to intervene in a situation such as this, and to direct that the appeal may be heard in the Division Bench on merits so that the appeal may be finally disposed of, as in my opinion it was not in the first instance by the three members who heard it, the two members constituting the Division Bench and the former Chairman who heard it after a difference of opinion had arisen in the Division Bench. Per Shri Kr. Gujendra Singh - This is a reference from the Division Bench to this larger Bench on two matters stated in the order. I have had the benefit of going through the orders that my learned brothers proposed to make in this case and since I hold slightly different views in this matter from the other learned brothers I respectfully set out my views below : - Before I gave any opinion on the points of reference I would very briefly like to state the facts of the case. Kesarlal and others plaintiff respondents filed a suit for ejectment against the defendant appellants from certain Khasra numbers. The trial court dismissed the suit and the first appellate court accepted the appeal filed by the plaintiff respondents and set aside the decree and judgment of the trial Court and remanded the case for framing additional issues and to pass fresh judgment after hearing the parties and recording the judgment. It is against this order of the first appellate Court the plaintiff respondents have filed this second appeal before the Division Bench of the Board of Revenue. Sarvshri R. N. Hawa and Khem Chand who heard the appeal were divided in their opinion as to the order to be made in this case. Shri Hawa held that the appeal was maintainable and should be accepted and the case remanded to the lower court for fresh decision. Shri Khem Chand without going into the merits of the case gave his opinion on a preliminary legal point that the appeal was not maintainable for the simple reason that it only raised a question of fact and not of law. According to the provisions of sec. 13 of the Rajasthan Land Revenue Act the case was referred to third Member Shri Shyam Lal, who held that the appeal raised a question of law and not of fact and was thus maintainable. He did not decide the case on merits and referred the case back to the Division Bench. Since Sarvshri R. N. Hawa and Khem Chand no longer remained attached to the Board the hearing of the appeal came up before Sarvshri R. N. Madhok and Shri Z. S. Jhala who then faced with this situation made this reference to a larger Bench on these points. (a) Whether the order passed by Shri Shyam Lal in the present case is a legal order within the meaning of rule 10 of the Revenue Courts Manual part I; (b) If the answer to (a) is in the negative, how should the case be proceeded with further? This reference was argued before us in this larger Bench by the counsel for the parties and other Members of the Bar who participated. Some of the Members of the Bar pointed out some inconsistency between sec. 13 of the Land Revenue Act and Rule 1 of the Rajasthan Revenue Courts Manual and sec. 98 of the Code of Civil Procedure which govern the procedure relating to the differences of opinion between the two or more Judges who constitute a Bench for hearing such appeals. Some counsel went even to the length of arguing that Rule 10 framed under the Land Revenue Act was ultra vires. I have no intention of going into the question of "vires" of Rule 10. It is entirely unnecessary for this purpose nor it is competent for this Court to do so. I shall, therefore, only confine myself with the question of inconsistency or otherwise between the procedures prescribed in various enactment providing for the differences of opinion between the Benches composed of two or more Judges. I entirely agree with my learned brother Shri R. N. Madhok that there is no apparent inconsistency between the procedure prescribed in sec. 13 of the Rajasthan Land Revenue Act and R. 10 of the Revenue Courts Manual. The question remains whether there is any inconsistency between sec. 13 of the Rajasthan Land Revenue Act and sec. 98 of the Civil Procedure Code. I agree with all the learned members in holding that sec. 98 of the Civil Procedure Code does apply to the cases arising under the Rajasthan Tenancy Act by virtue of provision contained in sec. 208 of the Rajasthan Tenancy Act, 1955. The question, therefore, now remains whether there is any inconsistency between sec. 13 of the Rajasthan Land Revenue Act read with R. 10 and sec. 98 of the Code of Civil Procedure. A close examination of the provisions contained in sec. 13 of the Rajasthan Land Revenue Act and sec. 98 of the Code of Civil Procedure would reveal that there is no inconsistency between the procedure prescribed in those sections. They both provide that in case of a difference of opinion arising between two or more Judges who constitute a Bench it shall be decided in accordance with the majority of opinion of the Judges who constitute the Bench. Where the opinions of the Judges who constitute the Bench is equally divided as to the order to be made in a case, a reference has to be made to another Judge or other Judges. Sec. 13 of the Rajasthan Land Revenue Courts is only a simplified version of sec. 98 of the Code of Civil Procedure. The difference of opinion as to the order to be passed in a case would naturally arise when a Bench is constituted of even number of members. Normally in the Board of Revenue the Division Bench consists of only two persons. It is, therefore, natural that when a difference of opinion arises the case has to be referred to a third member and it has to be decided in accordance with the opinion of the majority of the Members including such other members who heard it. The similar provision could be found in proviso to sec. 98 sub-sec. 2 of the Code of Civil Procedure which runs as follows - ''provided that where the Bench hearing the appeal is composed of two Judges, belonging to a Court consisting of more than two Judges, and the Judges composing the Bench differ in opinion on a point, of law, they may state the point of law upon which they differ and the appeal should then be heard upon that point only by one or more other Judges, and such point should be decided according to the majority of the opinion of the Judges who heard the appeal, including those who first heard it. " The above proviso, therefore, provides for the contingency where the difference of opinion occurs in the hearing of the appeal before a Bench composed of two Judges and the reference has to be made on a point of law, the appeal shall then be heard upon that point only by one or more of the other Judges. The difference thus between sec. 13 of Rajasthan Land Revenue Act and proviso to sec. 98 sub-sec. 2 of C. P. C. is this that in the former a reference has to be made to another member i. e. it contemplates only one Member, but in the latter this reference on a point of law could be made to one or more Members, the decision in any case of the appeal will go by the majority of the opinions recorded by the Judges hearing the appeal. Thus to me there is no inconsistency between the two provisions of law providing for the hearing of appeals by Bench of Judges and the difference of opinion occurring between them. Both the provisions of law are supplementary and complementary to each other and should apply with equal force to all the cases arising before this Board of Revenue. Applying these two provisions of law to this case I am clearly of the opinion that since there was a difference of opinion in the Bench constituted by Sarvshri R. N. Hawa and Khem Chand it was rightly referred to a third Member Shri Shyam Lal who instead of disposing the appeal on merits and passing an appropriate order in the case, only decided the point of Jaw with regard to the maintainability of the appeal before him. This order of Shri Shyamlal cannot in my opinion be branded as illegal. At the most it would be said that this order of Shri Shyamlal on a reference made to him was incomplete and partial. If Shri Shyamlal the third Member who heard the appeal had remained attached to this Board he could have been called upon after having decided the preliminary point of law to dispose of the second appeal on merits. Since Shri Shyamlal is no longer attached to this Board it is not possible for him to dispose of this case. It naturally, therefore, follows that the case must again be referred to another Member of the Board of Revenue, who should hear the appeal and record his opinion with regard to the order to be passed in this case and the appeal would then be disposed of in accordance with the opinion of the majority of the members including the other two members who first heard the appeal. In this matter, I, therefore, disagree, with my learned brother Shri R. N. Madhok that the case be re-heard by a fresh Division Bench on merits. There is no doubt that this case instead of being heard by another Single Member can again be heard by another two or more members as provided in sec. 98 of the Code of Civil Procedure, but nevertheless the decision in this appeal would strictly go in accordance with the opinion of the majority of the members now hearing the appeal as well as those who first heard it. The opinion of the other two members of the Division Bench already on record cannot be washed out and would have to be taken into consideration when the final decision in this case would be given. I, therefore, answer the reference to the first question by holding that the order passed by Shri Shyamlal was a legal order and the answer to second point of reference would be that the case should now be heard either by a single member or by another division Bench on merits, but the decision in this appeal would have to be in accordance with the majority of the members who first heard the appeal as well as those who would hear it now. . ;