1. This is an application for certificate that the case is a fit one for appeal to Ijlas-i-khas against the decree of the former High Court of Jodbpur, dated 4th February 1949. The petition is opposed by the respondent, and therefore it is necessary to go into this question at s(sic) length.
2. The petitioners were plaintiffs in a suit for declaration that they were entitled to a half share in the Jagir held by one Swaroop Singh, the common ancestor of the plaintiffs and the defendants, and they prayed for injunction that the defendants, who were the owners of the remaining half, should not interfere with the realisation of the Jagir income according to the share to which they were entitled as aforesaid. The defendants admitted the plaintiff's share to be only one-third in the Jagir left by their common ancestor, Swaroop Singb and claimed the remaining two-third share for themselves. The plea was that Swaroop Singh had three sons, Anar Singh by the first wife, and Bag Singh and Dan Singh by the other, and that on the death of Bag Singh his share, which had been separated, was inherited by Dan Singh. The trial Court decreed the suit on a finding that there had been no partition between the three sons of Swaroop Singh, and Bag Singh did not die as a separated member, and his interest passed by survivorship to the remaining two brothers as surviving coparceners. The judgment was upheld, on appeal, by the District Judge, but on second appeal to the former High Court at Jodhpur, the defence was accepted and the finding was reversed. The plaintiff's suit was dismissed with costs.
3. The rules relating to appeal against the decisions of the former High Court of Jodhpur are found in a Notification of the Ijlas-i-khas, dated 12th December 1946, sanctioned by his Highness the Maharaja Sabib Bahadur of Jodhpur, and in respect of civil matters the relevant provisions, as amended from time to time, are as follows:
'18. Subject to the provisions hereinafter contained an appeal shall lie to Ijlas-i-khas.
(a) From any decree passed on appeal by the High Court.
(b) From any decree passed by High Court in a case relating to land, where either party had pleaded that he holds the land in dispute otherwise than a cultivating tenant of the opposite party, and an issue had been framed regarding the tenure in which the land was held, and where the decree appealed from does not affirm the decision of the Court immediately below.
(c) From any decree passed by the High Court, when the case as hereinafter provided ia certified to be fit one for appeal.
19. In cases covered by Clause (a) of Rule 18 the amount or the value of tba subject-matter of the suit in the Court of first instance must be Rs. 4,000 or more, and the amount or value of the subject-matter in dispute on appeal to His Highness must be the same sum or more;
Or the decree must involve directly or indirectly some claim to, or some question respecting, property of like amount or value;
And where the decree appealed from affirms the decision of the Court immediately below, the appeal must involve substantial question of law.'
4. It is conceded that the valuation of the suit under consideration was less than 4,000 and, therefore, an appeal to Ijlas-I-Khas can only lie if it fulfils the conditions laid down in Clause (b) or (c) of Rule 18. It may be stated at once that no arguments have been advanced to bring the case under Clause (c), but it is urged by the learned advocate for the petitioners that a case relating to Jagir, where the High Court of Jodhpur did not affirm the decision of the Court immediately below, was a fit one for appeal, irrespective of its valuation, under Clause (b) of Rule 18. Mr. Radha Mohan for the non-petitioners, however contends that the word 'Jagir' did not appear anywhere in this clause and the suit contemplated under this clause is only one where there is a dispute as to the nature of the tenure and an issue is framed on a plea specified in the clause, and as none of the parties were at issue on the question of nature of tenure of land in the present case, it is outside the scope of this clause.
5. In my opinion, the Ijlas-I-Khas Rules, quoted above, have not been happily worded. On a reasonable interpretation, the present case would fall under Clause (b). According to a superficial reading of Clause (b) it may appear that an appeal is provided in cases where one of the parties denies that he holds the land as a tenant, but while this may be so, this is not all what the Rule is intended to provide.
6. The uniform practice of the Jodhpur High Court seems to have been to grant a certificate in cases where the suit relates to a determination of rights of the parties in a state grant. It is pertinent to refer to the observations of the Hon'ble Judges of the Jodhpur High Court in certificate Application No. 62 of 1939-40, Amba Lal v. Mt. Parabati, decided on 16th January 1941, where it was observed:
'the subject-matter of the present suit is the determination of rights of the plaintiffs in a Jagir of half share of village Kanawas and on that ground the plaintiffs are entitled to have there application (for certificate that the case is a fit one for appeal to Ijlas-I-Khas) accepted by this Court.'
7. It appears that while the language used refers to oases where one of the parties denies his status as a tenant, the fact that both the parties agree that the land in dispute, is not held as tenants is a much stronger case to be taken to the High Court. The condition as to framing of an issue would only be applicable where the right is affirmed by one party and denied by another, and not as in the present case where both parties admit that the land is held by them otherwise than as tenants.
8. In my opinion the dispute in the present case being one relating to the share in Jagir, consisting of agricultural lands, and the decision of the lower Court having been set aside by the High Court, the case fulfils the conditions laid down in Clause (b) of Rule 18. The case is a fit one for grant of certificate, and it may be issued accordingly. The appeal will be entertained by this Court under Ordinance, XL  of 1949 as amended by Ordinance XII  of 1950, on payment of proper court-fees within the time allowed by the rules.
9. I agree.