- (1.) THE learned Chairman, sitting singly in this case has referred to this Bench for an answer the following question - "whether by the deletion of Sec. 186 of the Rajasthan Tenancy Act the right of appeal conferred under the repealed section continues to exist ?" Briefly the facts leading to this reference are that Shri Moongaram deceased, who is now represented before us by his wife Shrimati Sugani and his son Shri Laxman, filed an application under S. 7 of the Rajasthan Protection of Tenants Ordinance in the court of the Anti-Ejectment Officer, Jhunjhunu on 29-8-1953 for the restoration of possession over the suit lands from which he is alleged to have been dispossessed by the non-applicants or by their predecessors in interest. THE application was rejected on 29-8-1954. Shri Moongaram then appealed to the Additional Commissioner, Jaipur, who remanded the case to the Assistant Collector, Jhunjhunu with certain directions. On 2-12-1958 the Assistant Collector, Jhunjhunu, accepted the application and ordered the restoration of the suit lands.
(2.) AN appeal against this decision was decided by the Additional Commissioner, Jaipur on 30-8-1960 again remanding the case to the Assistant Collector, Jhunjhunu, who, on 25-6-1962, reiterated his earlier decision AN appeal against this decision filed on 12-7-1962 had been accepted by the Revenue Appellate Authority, Jaipur on 10-5-1968 against this the present revision has been filed. It was argued before the Single Bench that the order passed by the Revenue Appellate Authority was without jurisdiction, hence no appeal lay against the order of the Assistant Collector passed under section 7 of the Rajasthan Protection of Tenants Ordinance and reliance was placed on the judgment delivered by one of us on 31-7-1972 in revision No. 32l/67/jjnu, Manget Singh vs. Shivlal Singh and others. On the other hand the learned counsel for the non-applicant drew attention to the decisions of two Division Benches of the Board in Gulia vs. Abdul Shakoor (1962 RRD 95) and Virender Kumar vs. Gopal (1962 RRD 179) holding that the order passed under section 7 of the Protection of Tenants Ordinance is appealable under s. 225 of the Rajasthan Tenancy Act. We have heard the learned counsel for both the parties Shri S. N. Pareek, Advocate for the non-applicants has urged that the question referred to us has already been decided by the two division benches of the Board in the cases referred above and there was, therefore, no necessity of making the present reference. We have gone through these judgments of the two division benches, The history of the case of Gulia vs. Abdul Shakoor was more or less identical with that of the present case. After an elaborate discussion, in which the implications of the decisions in AIR 1957 S. C. 540 was also considered. The learned Members held that a lis under the Protection of Tenants Ordinance pending on 15-10-1955, when the Rajasthan Tenancy Act came into force, should be heard and decided under section 186 of the Tenancy Act. Even after the repeal of this section on 27-6-1960 and despite the fact that no appeal against the order of the Anti-Ejectment Officer was provided for under the Protection of Tenants Ordinance, the parties would have the right of appeal provided for in the Tenancy Act. In coming to this conclusion the division bench took note of the decision in Shankarsingh and others vs. Board of Revenue and others (D. B. Civil Writ Petition No. 309 of 1959 decided on 8-9-1961) in which the Rajasthan High Court had also laid down that lis of the present type shall be deemed to have been commed under the provisions of the Tenancy Act and must be deemed to have been disposed the very Act. The decision in the other case was also similar. The question referred to us, therefore, is no longer open as it has alredy been settled in the above case. The judgment delivered by one of us in Mangetsingh vs. Shivlalsingh and otheres was apparently given per incuriam and would not be binding on another Bench of collateral jurisdiction as has been held by the Supreme Court in Jaisri Sahu vs. Raidewan Dubey (AIR 1962 S. C. 83 ). In Halsbury's Laws of England (Third Edition Volume 22, page 800), it has been observed. "a decision is given per incuriam when the court has acted in ignorance of a previous decisions of its own or of a court co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of the House of Lords. ". . . . . . . . . . . . . . . . . . a decision may also be given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. " The decision in Mangetsingh vs. Shivlalsingh makes no mention of the previous decision of the Board on the very point which was being considered in that case. It was manifestly given in ignorance of the earlier decision and, therefore, was given per incuriam.
(3.) IN the reference before us no reasons have been recorded to show that the earlier decisions of the Board needed any consideration. IN the circumstances we do not consider it necessary to answer the question referred to us. The case may. therefore, be returned to the honourable Chairman for disposal in accordance with the above observations. .;