BERI, C. J. - (1.) THIS is a petition under Art. 226 of the Constitution of India direct-ed against the judgment of the Board of Revenue dated June 30, 1966, whereby the learned Members of the Board of Revenue reversed the order of Shri R. N. Hawa a member of the Board of Revenue, which order he had passed while accepting a review against the judgment which was rendered by the Bench consisting of Shri Kanwar Bahadur and himself dated December 3, 1962.
(2.) THE point involved in this petition is small but the history of this legal dispute is long. THEre are four parcels of land measuring 9 Bighas, 4 Bighas, 3 Bighas and 7 Bighas situate in village Goter, Tehsil Bonli, Distriet Sawai Madhopur. A suit was instituted by Mor Mukat Singh and others against Ram Sukh and others for ejectment which was decreed in favour of the petitioner Mor Mukat Singh by a decree dated May 31, 1956. Ram Sukh and others appealed before the Additional Commissioner, Jaipur, but without success. THEy then went up to the Board of Revenue and by its judgment dated January 9, 1960 Shri Kanwar Bahadur and Shri R. N. Hawa as Members of the Board of Revenue accepted the appeal. Aggrieved by this, Mor Mukat Singh and others moved an application for a review of the judgment. By this time Shri Kanwar Bahadur had retired and the review was heard by Shri R. N. Hawa and he found, according to his judgment dated December 3, 1962, that a review was called for and he restored the second appeal which was decided by him and Shri Kanwar Bahadur on January 9, 1960 for re-hearing. By that time Ramsukh had died but his sucessor who were already on record, preferred an appeal under sec. 10 of the Rajas-than Land Revenue Act, before a Division Bench consisting of Shri R. K. Chaturvedi and Shri G. B. K Hooja. Notwithstanding the objection raised on behalf of Mor Mukatsingh and others that no appeal under sec 10 lay before them, the learned Members allowed the appeal and set aside the judgment of Shri R. N. Hawa dated December 3, 1962 and affirmed the judgment of the Board dated January 9, 1960. Mor Mukat Singh is before us and challenges the decision of the Board of Revenue on the ground that the Board had no authority to hear an appeal under sec. 10 of the Rajasthan Land Revenue Act. Mr. H. C. Rastogi appearing for the petitioners urges that Shri R. N. Hawa heard the review alone, although the notice was issued by both the learned members namely Shri Kanwar Bahadur and Shri R. N. Hawa on January 2, 1961. Shri Kanwar Bahadur having retired, Shri R. N. Hawa compelled by the situation to hear the review application himself in view of the provisions of O. 47 R. 5, Civil P. C. as applicable to Revenue Courts by virtue of sec. 86 of the Rajasthan Land Revenue Act. The judgment that Shri R. N. Hawa passed was, urged the learned counsel, in fact the judgment of the Division Bench of the Board of Revenue although it was rendered by only one member of the Bench and therefore no appeal under sec. 10 of the Rajasthan Land Revenue Act lay before a Division Bench. In support of this submission, he has placed reliance on Seemakurty Achyutam vs. Seemakurti Kasi Annapurnamma (l) and Kailash Chandra Somaddar vs. Revati Mohan Roy Chowdhary (2 ). Mr. R. P. Dave learned counsel for the respondents supports the judgment of the Board of Revenue on the ground that in fact it was a judgment of the learned Single Judge against which an appeal lay. Recently we have had occasion to consider the rationale of the remedy of review in Civil Procedure. We had said that this remedy has for its foundation an implied admission of human fallibility and a desire to serve truth so that ends of justice may be attained. A review lies if a party discovers some evidence which it could not, despite due diligence at proper time produce and this is intended to serve the cause of truth. If there is an error apparent on the face of the record which clearly indicates that human judgments cannot always be free from error and if a patent error is there it should be corrected. But to safeguard these two principles, however, O. 47 R. 5 C. P. C. lays down that if a matter is decided by more than one member of a Court and the other one is not available for a period of six months for any reason whatsoever, the review after that period has to be heard by the mamber of the Court who is avail-abe. The reason for this review as we have observed in Bhera vs. Board of Revenue (D. B Civil Misc. Writ Case No. 2032/1971 decided on 10-4-1974) is that it is easier for a person who had heard a dispute to discover and recognise his own error rather than a person who had not heard it. Therefore, the law insists that it is the member who is available alone should hear the case wherein review is sought by an aggrieved party. Basically, a review is re-examination at the same level. But, when such a member of the Court decides the review does he decide it on his own personal behalf or on behalf of the Bench which had deposed of the matter under review? This question was posed in a case where a review application was rejected by a learned Member of the High Court of Andhra Pradesh and an appeal was sought to be preferred against that judgment before a Division Bench under Cl. 15 of the Letters Patent of the Andhra Pradesh High Court. It was held that no such appeal lay because such an appeal was only available when the case was decided by a single Member of the Court as such. When a review application is decided by a single Member on account of certain exigencies and non-availability of other members then in point of form and substance he is deciding it for and on behalf of the Bench which had originally decided the matter and the decision was held to be a decision of the Bench which originally disposed of the dispute. The same was the view taken in the Calcutta case (2 ). The case before us is of the opposite variety. Here, a learned single Member of the Board recognised that there was an error in the decision which was delivered by two members of the Board of Revenue. The learned single Member said let the matter be heard again as civil second appeal on merits. The question is whether such a judgment of Shri R. N. Hawa was a judgment of the single Member or a Judgment of the single Member on behalf of the Division Bench. If we were to treat this as a judgment of a single Member of the Board against which an appeal lies then it would be saying that while the person who delivered the original judgment recognised that it was a fit case for review, the two Members who are quite fresh to the dispute take a contrary view. Such a proposition appears to run contrary to the very spirit of the remedy of review. In substance, Shri Hawa prima facie recognised that he and his colleague had either committed an error apparent on the face of the record or there was other similar ground as envisaged by O. 41 R. 1 Civil P. C. and the judgment delivered by them on January 9, 1960 did required a review. It was not a finding given by a learned single Member on his behalf alone but on behalf of a Bench of two Members.
(3.) SECTION 10 of the Rajasthan Land Revenue Act bereft of unnecessary words says, ". . . . . . . . . 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 decision of the single member. " On principle, we have found that it was not a decision by a single Member but a judgment of single Member on behalf of the Division Bench, and this provision is clearly inapplicable. Thus no appeal was competent before the Division Bench of the Board. The result is that judgment of the Board of Revenue dated June 30, 1966 is set aside and the judgment of Shri R. N. Hawa dated December 3, 1962 is restored. ;