- (1.) THIS is a special appeal under sec. 10 (1) of Rajasthan Land Revenue Act, 1956 against the order of single Member, Board of Ravenue, dated 6. 1. 64 passed in exercise of its revisional jurisdiction.
(2.) THE brief facts of the case are that the applicant has been recorded as Zaili upto Smt. 2019 i. e. for the last 18 years. THE parcha settlement stands in the name of the appellant. THE land was the muafi of the respondent which was resumed in the year 1954. THE respondent in proceedings under sec. 125 got an order in their favour. THE appellants filed the present suit for declaration and permanent injunction. On a prayer for temporary injunction, the same was granted exparte and later made absolute by the Sub-Divisional Officer, Kota. THE opposite party respondent filed an appeal before the appellate authority which was also rejected. In revision application before the Board of Revenue, ad-interim stay order was granted, and 6. 1. 64 was fixed for making the stay absolute. On 6. 1. 64 the appellants were represented by their advocates who filed the written reply along with affidavit showing that the crop of the appellant was standing on the disputed land. THE learned Member made the stay order absolute. Hence the special appeal has been filed against the stay order of the Hon'ble Member of the Board of Revenue. While the counsel for the appellant was arguing the case the counsel for the respondent raised a preliminary objection that the special appeal under sec. 10 (1) of the Land Revenue Act against an order of this nature is not maintainable before the Division Bench. He also brought to our notice the amendment to sec. 10 in which certification of the fitness of appeal has been made mandatory and which had become effective from 10th January, 1964. The counsel for the appellant has argued that special appeal lies against any judgment or decision of the Hon'ble Member and has cited the following rulings in support of his contention - AIR 1960 Cal. p. 582 in which it has been held that modification of ad interim injunction amounted to judgment. AIR 1953 S. C. p. 221 in which it is held by the Hon'ble Judges that the right of appeal is a substantive right when proceedings are initiated. AIR 1960 Alld. p. 692 in which it has been held that in special appeal the word "judgment" is not to be construed in terms of CPC. AIR Madras 1953 page 1059 according to which expression "decision" should be interpreted liberally. In reply the learned counsel for the respondent has argued that the stay order made absolute does not in any way finally dispose of the case and hence cannot be termed as ''judgment" and has cited the following rulings in support of his contention - AIR 1949 Federal Court, page 1 according to which word "judgment" means final order "which finally decides the dispute and does not keep the matter alive. AIR 1950 Federal Court page 227 in which their lordships have held that the test of finality of order is whether it puts end to a suit or not. It has further been held by their lordships that an application for winding up of a company against which an appeal was filed was held to be incompetent. AIR 1961 Supreme Court page 794 in which the word "final order" has been defined in relation to the rights of the parties within the meaning of the Article 133 of Constitution of India. AIR 1951 Supreme Court page 14 in which their lordships have held that an order of the High Court declining to call upon the Board of Revenue to state a case under sec. 21 of Bihar Sales Tax Act, 1944 is not a final order passed in exercise either in original or in appellate jurisdiction and is therefore not appealable. AIR 1953 Supreme Court page 189 in which their lordships have held that even a transfer of a case from one District Judge to another is not appealable. ILR 1955 Rajasthan page 418 in which the preceding a case law has been discussed and the word "judgment" has been in stay matters with reference to sec. 18 of the Rajasthan High Court Ordinance. AIR 1953 Supreme Court page 200 para 13 in which a certain test has been prescribed by their lordships i. e. whether the proceedings are still alive or not. The learned counsel has finally ended his argument with the observations that no special appeal can ever lie against an order of this nature and the order of the Hon'able Member making stay absolute does not affect the merits of the case, as no rights of the parties have been affected in any manner. We have carefully heard the learned counsel of both the parties. The crucial question before us for adjudication is whether any special appeal would lie against an order of this nature or not. In the present case ad-interim stay order granted previously has been made absolute by the learned Member after hearing the parties vide his order dated 6. 1. 64. We would however like to refrain ourselves from giving any decision whether this amendment would have retrospective effect or will only be made applicable to the suits instituted after the promulgation of this ordinance as the learned counsel for the parties do not wish to press this point. We have carefully considered all the aspects of the present case and we feel that it would be useful to reproduce the relevant clause of sec. 10 (1) of the Land Revenue Act which reads as follows - "except as otherwise provided by or under this Act or by any other law or enactment for the time being in force in the whole or any part of the State and subject to any rules made in that behalf the jurisdiction of the Board my be exercised - (a) by the Chairman or any other member of the Board, sitting singly, or (b) by a Banch of the Board, consisting of two or more members : Provided that a party aggrieved by a decision of a single member shall have the right to take a special appeal to a bench consisting of two or more members of the Board within one month from the date of the decision of the single member, if the member who passed the judgment declares that the case is fit one for appeal. " It would be seen that the interpretation of the word "decision" which is synonymous to the word "judgment" is of great substance as it goes to the very root of this case. We have given our very careful consideration to the fact whether the judicial pronouncement in the present case by single Member would amount to "judgment" and as such appealable. The learned counsel for the appellant has cited the following three rulings : - (i) Justice's of the Peace for Calcutta vs. Oriental Gas Company (Calcutta High Court), (ii) Tuljaram vs. Alagappa (Madras High Court), (iii) AIR 1935 Rangoon, page 267. These three leading cases have been discussed by their lordships in the Supreme Court in AIR 1953 S. C. 198, in which C. J. Couch has held that every judicial pronouncement on a right or liability between the parties cannot be regarded as judgment, for in that case there would be any number of judgments in the course of a suit or proceeding, each one of which could be challenged by way of appeal. The judgment must be the final pronouncement which puts an end to the proceedings so far as the Court dealing with it is concerned. Further, according to white C. J. to find out whether an order is judgment or not we have to look to its effect upon a particular suit or proceeding in which it is made. If its effect is to terminate the suit or proceedings, the decision would be a "judgment" but not otherwise. The above pronouncement of learned Judges, in our opinion, sets at rest any further controversy with regard to the interpretation of the word "judgment". We feel that this action of the learned Member is only a step forward towards obtaining a final adjudication in the suit and cannot be termed as "judgment". We, therefore, hold that orders of this nature are not appealable under sec. 10 (1) of the Rajasthan Land Revenue Act. The special appeal is therefore rejected. Per R. N. Madhok - While respectfully agreeing with the conclusion arrived at by my learned colleague that these special appeals must fail, I would venture to add the following observations : - The appellants before us in these cases had obtained orders of temporary injunction in their favour from the trial court which were confirmed by the appellate court. The respondents came up in revision in this Board and a single Member exercising the revisional jurisdiction of this Court passed orders staying the execution of the orders of the lower courts. It is against these orders of stay of execution of the orders of the lower courts which are the subject matter of these special appeals. The preliminary objection of the counsel for the respondents is that these three appeals are not competent under sec. 10 of the Rajasthan Land Revenue Act, 1956. The latter provision of the law as it stood at the time of institution of these suits may be reproduced below : - "10. Jurisdiction of Board how exercised - (1) Except as otherwise provided by or under this Act or by any other law or enactment for the time being in force in the whole or any part of the State and subject to any rules made in that behalf, the jurisdiction of the Board may be exercised - (a) by the Chairman or any other member of the Board, sitting singly, or (b) by a Bench of the Board, consisting of two or more members : Provided that a party aggrieved by a decision of a single member shall have the right to make a special appeal to a bench consisting of two or more members of the Board within one month from the date of the decision of the single member". By Ordinance No. 1 of 1964 the following clause has been added at the end of the proviso to sec. 10 (1): - "if the Member who passed the judgment declares that the case is a fit one for appeal". Shri S. N. Pareek, counsel for the appellant has argued that the word "decision" should be considered synonymous with the word "judgment" and that it should be interpreted in its full amplitude to mean any decision taken by the court. He has sought support from various rulings of the High Courts. It is not necessary to examine all these rulings here, since the point in controversy can well be settled by a reference to the leading cases in which the entire case law has been discussed. The expression "judgment" has been interpreted in the context of Clause 15 of the Letters Patent of the Calcutta High Court which is an analogue of the provisions made in the Letters Patent of the other High Courts. Since a special appeal from the decisions of a single Member of this Board u/s 10 (1) of the Land Revenue Act is parallel to a Letters Patent appeal in the High Court, the expression "decision" has to be construed in the light of the definition given to the expression "judgment" occurring in the provisions of the Letters Patent. The leading cases in the matter are - (1) Justices of the Peace for Calcutta Vs. Oriental Gas Co. Calcutta High Court, (2) Toljaram Vs. Alagappa Madras High Court and (3) A. I. R. 1935 Rang. 267. These three leading cases have been discussed by their Lordships of the Supreme Court in A. I. R. 1953 S. C. 198. The matter for determination before their Lordships was whether an order passed by a single Judge transferring a suit from the District Court under Cl. 13 of the Letters Patent (Cal. High Court) was a judgment within the meaning of Cl. 15 and was as such appealable. Their Lordships answered the question in the negative. While refraining from attempting a comprehensive definition of the word "judgment" occurring in Cl. 15 of the Letters Patent of the Calcutta High Court and in the corresponding clauses of the Letters Patent of the other High Courts, their Lordships observed that they were satisfied that in none of the views expressed by the High Courts of Calcutta, Madras and Rangoon in the leading cases referred to above could an order of transfer of case of the nature they had before them be regarded as a "judgment". Their Lordships of the Rajasthan High Court had the occasion to consider the mater in M/s Rajputana Cold Storage & Refrigeration Co. Ltd. Vs. Rani Ajitkunverba and others", reported in I. L. R. 1955, p. 418. A petition had been presented before a single Judge for the winding up of a company and His Lordship directed that the disposal of the petition be stayed during the pendency of a connected suit in Bombay. This order was appealed against under sec. 18 of the Rajasthan High Court Ordinance, 1959, which is similar to the parallel provisions of the Letters Patent of the various other High Courts. Their Lordships rejected the appeal, observing that a "judgment" must be the final pronouncement which puts an end to the proceeding so far as the court dealing with it is concerned. The meaning of the expression "judgment" was later discussed in a Full Bench decision of the Allahabad High Court reported in A. I. R. 1960 Allahabad, 692. The majority decision was that an order of a single judge dismissing an appeal against an order granting a temporary injunction was an order which finally determined the right of a party to a temporary relief and was as such appealable. The orders of the single Member which have been assailed in these three special appeals before us are orders staying the execution of the orders of the lower courts granting a temporary injunction. The single Member has not decided whether the temporary injunction granted by the lower courts should be vacated or confirmed. All that he has done is to say that the execution of these orders be stayed until the revisions have been disposed of. Therefore, these three cases before us are clearly distinguishable from the Allahabad case. It now remains to be seen whether the impugned orders of the learned single Member are "judgment" in the light of the meaning given to the expression "judgment" in the leading cases in the Calcutta, Madras and Rangoon High Courts. The Calcutta view is that "judgment" means a decision which affects the merits of the question between the parties by determining some right or liability. The decisions of the learned single Member in appeal before us do not at all touch the merits of the dispute between the parties by determining some right or liability. According to the Madras High Court the test is not what is the form of the adjudication but what is its effect on the suit or proceeding. If its effect is to put an end to the suit or proceeding before the court, the adjudication is a "judgment". The stay orders passed by the learned single Member do not put an end to the suits or proceedings. The Rangoon High Court has held that the term "judgment", means a decree in a suit by which the rights of the parties in the suit are determined. This is an extreme view and in this view also the orders passed by the learned single Member cannot be termed as "judgment" for the purpose of special appeals. Thus whichever of these authoritative views is adopted, these three special appeals are incompetent u/s. 10 (1) of the Land Revenue Act. .;