Bhajan Singh alias Chhan etc. vs Smt. Chameli

D.B. Lal, J.—This is a second appeal preferred by Bhajan Singh u/s 104 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter to be referred as the Abolition Act of 1953) against Shrimati Chameli who is the legal representative of the former Respondent Janta, and is directed against the decision dated 13th October, 1969 of the District Judge, Kangra.

Janta being occupancy tenant of land filed in the year 1964 an application u/s 11 of the Abolition Act, 1953 before the Compensation Officer for acquisition of proprietary rights over such land. A compromise was effected between Bhajan Singh and Gurmukh Singh landlords on one side and Janta their tenant on the other side and the application was withdrawn by Janta under a promise by landlords to meet expenses of maintenance of Janta who started residing with them. It was later on stated by Janta that a breach of compromise was committed by the two landlords. Accordingly he filed a fresh application for grant of proprietary rights u/s 11 of the Abolition Act, 1953 before the Compensation, Officer. This application is the subject-matter of the present dispute. The learned Compensation Officer found that the previous decision of 1964 whereby the application of Janta was rejected was resjudicata and that in view of the compromise, the present application was not sustainable. Accordingly the learned Compensation Officer dismissed the application of Janta.

Janta came in appeal before the learned District Judge, Kangra. It was found in first appeal, that Section 11 of the CPC was not applicable and that the compromise effected in 1964 was a contract which was in violation of a statute and hence not enforceable between the parties. It was, therefore, held that Janta was entitled to acquire proprietary rights, but the difficulty before the learned District Judge was that no finding was given by the Compensation Officer regarding the quantum of compensation and regarding the price of a house which existed over the land and for which some provision was required to be made. If the landlords were to acquire this house, they had to pay its price and in case they do not want to acquire, some land has to be left out for passage up to the house so that the legal representative of Janta can utilize the house.

The learned District Judge, after setting aside the order of the Compensation Officer, has remanded the case to the Compensation Officer for determination of the compensation amount for the land and also for determination of rights of parties as regards the house. Against this decision of the learned District Judge, the two landlords Bhajan Singh and Gurmukh Singh have come up in second appeal.

There is a preliminary objection from the side of Respondent Chamcli that the second appeal is not maintainable u/s 104 of the Abolition Act of 1953. It is submitted that a second appeal can lie only against a final decision of the District Judge. In the instant case, according to Respondents, the District Judge has not made any final decision and has only remanded the case for further enquiry.

The objection entertained by the Respondents relates to the interpretation of Section 104 of the Abolition Act, 1953 which can usefully be reproduced as below:

S. 104: An appeal shall lie to the District Judge from any order of the Compensation Officer, and a second appeal from the decision of the District Judge shall lie to the Judicial Commissioner.

There is no dispute that in place of Judicial Commissioner, the High Court has been substituted. The learned Counsel for the Respondents asserts that the word "decision" signifies only a final decision and not an incomplete decision made by the District Judge. His contention is that the legislature has used the words "order" and "decision" in the same section and the two words necessarily have different meanings. The learned Counsel further submits that in Section 105 of the Abolition Act, the High Court is conferred power of revision as against the order of the District Judge deciding an appeal u/s 104. Therefore, says the learned Counsel, a simultaneous power of revision and appeal could not be deemed conferred upon the High Court against one and the same order. In other words, second appeal is maintainable only against final decision of the District Judge, while revision is only maintainable against any other type of decision made by the District Judge.

The word "decision" used in Section 104, does not appear to me to be a word of "art". It is a popular word and not a technical word. Their Lordships of the Supreme Court in P.L. Lakhanpal Vs. Union of India (UOI) and Others, with reference to a case under the Defence of India Rules, 1962 referred to the dictionary meaning of the words "to decide" and "decision". The following meaning was adopted:

According to its dictionary meaning ''to decide'' means ''settle (question, issue, dispute) by giving victory to one side; give judgment (between, for, in favour of, against); bring, come, to a resolution'' and ''decision'' means ''settlement (of question etc.), conclusion, formal judgment, making up one''s mind, resolve, resoluteness, decided character''.

It is thus clear that the word "decision" refers to settlement of a question, or conclusion, or formal judgment, or making up of one''s mind. Therefore, the word "decision" should imply "order" that is made as a result to reasoning adopted by the Court. A decision without order is not contemplated u/s 104, because no appeal is preferred against the opinion of a Judge or against the reasoning adopted by a Judge, unless some order is made as a result to that opinion or reasoning. In another context, a learned Judge in Aijaz Uddin Vs. Taxing Officer, High Court and Others, has held that the word "decision" has a broad connotation and in a certain contingency necessarily includes a decree or an order. The learned Counsel for the Respondents relied upon Kanak Sunder Bibi Vs. Ram Lakhan Pandey and Others, . In that case, their Lordships were called upon to interpret the word "decision" used in Article 133(1) and in Section 110 of the Civil Procedure Code. It was decided that the word "decision" embraces the final determination of the Court on all the claims put forward in controversy between the parties in a suit or a proceeding. Their Lordships were called upon to decide in that case as to whether the decision of the subordinate Court was affirmed by the High Court for the purpose of appeal to Supreme Court. In that context, they interpreted the meaning of the word "decision" used in Article 133(1) and held that the word embraced the final determination of the Court on all the claims put forward by parties. In the instant case, we are not concerned with the affirmation or reversal of the decree of the subordinate Court. We have to interpret the word "decision" with reference to appeal preferred from the order of the District Judge. The observations made in the Patna case would not be material for this case. I would consider that the word "decision" used in Section 104 means a decision followed by an order against which a second appeal is preferred. In other words, there is no material difference in the connotation of the words "decision" and "order" used in Section 104.

If the plain meaning of the word is taken, "decision" could even be considered a decision without being followed by an order. That would give a much wider connotation to the term and any decision of the District Judge would then be appealable u/s 104. I do not think such a wider meaning can be given. It suffices to say that some order must follow the decision and the order need not necessarily be final order or final decision and a second appeal would be maintainable before the High Court. This is all the more so because the word "final" has not been used before the word "decision" in Section 104 as it has been used before the word "order" in that section. It would, therefore, follow that any decision even if it is not final, would be appealable before the High Court.

It would also be a futile attempt to circumscribe the scope of second appeal before the High Court when the legislature never intended to prescribe any such limitation. If any order is appealable before the District Judge, any decision of the District Judge should be appealable before the High Court. As against this argument, the learned Counsel for the Respondents urged that simultaneous powers of appeal and revision would not have been conferred by the legislature. I do not consider it illogical if such simultaneous powers were conferred. There is no limitation prescribed for filing revision, while there is a limitation prescribed for filing an appeal (see Section 106). After the expiry of the period of limitation, perhaps, a revision would still be entertain able before the High Court. Apart from this, the High Court suo moto can call for the record and satisfy itself as to whether the decision was according to law, and exercise revisional powers. An appeal is invariably preferred by a party and a memorandum of appeals filed. That is also a difference between the two powers to be exercised by the High Court.

The discussion which I have made above leads me to the conclusion that this second appeal against the decision of the learned District Judge is maintainable before the High Court.

The appeal shall now be listed for hearing on merits.