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Daleepsingh (Deceased) Through Sukhdevsingh and ors. Vs. Sukhdev Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Regular First Appeal No. 104 of 1970
Judge
Reported in1973(6)WLN577
AppellantDaleepsingh (Deceased) Through Sukhdevsingh and ors.
RespondentSukhdev Singh and ors.
Cases ReferredLala Shri Bhagwan and Anr. v. Ramchand and Anr.
Excerpt:
.....hearing the case to refer the matter to a full bench in view of the conflicting authorities without taking upon itself to decide whether it should follow the one bench decision or the other......singly on a previous occasion and he is at liberty to differ from it. reliance is placed on a full bench decision of the madras hight court in gundavaraup seshamma v. kornepati venkata and ors. air 1940 mad 356 as also on the decisions in d.d. bilimoria, electric contractor v. central bank of india ltd. air 1943 nag 340 and katragadda virayya v. katragadda venkata subbayya : air1955ap215 his second argument is that the observations of jagat narayan j in kishen gopal's case, referred to above, were made while dismissing the revision petition in limine, and as such if this court takes another view in this matter, there is no necessity to refer the case to a larger bench, in this connection my attention has been drawn to the following observations of gattani j. in sahijram v. transport.....
Judgment:

S.N. Modi, J.

1. This is a first appeal by the legal representatives of the deceased Daleepsingh against the judgment and decree of the Additional District Judge, Ganganagar, dated 5. 6. 70 in a suit for pre emption.

2. The relevant facts giving rise to this appeal are that the deceased-pl aintiff Daleepsingh instituted a suit for possession by pre-emption of certain agricultural land situated in CbakNo.9FF, tehsil Karanpur, which had been sold by Gurdayalsingh and Mst. Kartarkaur to Sukhdeosingh and Baldeosingh by a deed dated 20. 1. 67, The pre emption was claimed on the ground that the plaintiff was a co-sharer or a partner in the property transferred while the vendees were strangers Various pleas were raised in defence by vendees, one of which was that the land in dispute being a khatedari land and was sold under the provisions of the Rajasthan Tenancy Act, 1955, the sale of such land was not pre-emptibie under the Rajasthan Pre-emption Act, 1966 (Act No. 1 of 1966), hereinafter called as the Act. The learned Additional District Judge in whose court the suit was instituted framed certain issues, of which issue No. 2 was whether the land in dispute is a khatedari land and it was sold under the provisions of the Rajasthan Tenancy Act, and if so, is the Rajasthan Preemption Act not applicable? As this issue went to the root of the case, the learned Additional District Judge heard arguments on behalf of both the parties and decided the issue against the plaintiff and dismissed the suit without deciding the other issues. The learned Additional District Judge has held that the provisions of the Act do not apply to transfer of agricultural lands involving transfer of tenancy rights and therefore the right of pre-emption does not arise as a result of such transfer. Aggrieved by the said judgment and decree, the legal representatives of the deceased-plaintiff Daleepsingh who died during the pendency of the suit, have preferred this appeal.

3. The only point that arises for consideration in this appeal is whether the transfer of khatedari tights in agricultral land gives rise to the right of pre-emption under the provisions of the Act.

4. Mr. L.R. Mehta, the learned advocate for the appellants, contends that a bare reading of sections 4 and 6 of the Act would reveal that the provisions of the Act are applicable to the transfer of khatedari rights and that being the case, the finding of the lower court to the contrary is wrong and illegal. In support of his argument, he places reliance on the decision of Gattani, J. in Prabhudayal v. Mahadevnath 1972 WLN 455. In that case, Gattani, J. held that ' khatedari rights in the agricultural land like any other immovable property can be held, enjoyed and disposed of. It is heritable as well. Its sale is in fact sale of the ownership of such land and as such the plaintiff's suit for pre-emption of the disputed property is maintainable'.

5. On the other hand, Mr. M.M. Singhvi, the learned advocate for the respondent-vendees, argues that the view taken by the learned Additional Dist. Judge is not only correct but it is also in consonance with the view taken by Jagat Narayan J., as he then was in the case Kishen Gopal v. Shivlal and Ors. (S B Civil Revision No.53 of 1969 decided on 1-8-69). Jagat Narayan, J. summarily dismissed the revision petition on the sole ground that 'there can be no pre-emption of tenancy rights under the Pre-emption Act' Mr. Singhvi urges that the learned Additional District Judge was bound to follow the decision of Jagat Narayan, J. He further urges that in view of the two conflicting judgments of this High Court on the point of law involved in the present case, the only proper course for this Court is to refer the case to a larger Bench. In this connection, he has retired to me to the decision of their lordships of the Supreme Court in Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel and Ors. : [1968]1SCR455 . In reply, it is urged by Mr. Mehta that it is not at all necessary in the present circumstances to refer the present csse to a Division Bench. His argument is two-fold. In the first place, it is contended that a Judge deciding the case singly is not bound on the question of law by the view taken by another Judge sitting singly on a previous occasion and he is at liberty to differ from it. Reliance is placed on a Full Bench decision of the Madras Hight Court in Gundavaraup Seshamma v. Kornepati Venkata and Ors. AIR 1940 Mad 356 as also on the decisions in D.D. Bilimoria, Electric Contractor v. Central Bank of India Ltd. AIR 1943 Nag 340 and Katragadda Virayya v. Katragadda Venkata Subbayya : AIR1955AP215 His second argument is that the observations of Jagat Narayan J in Kishen Gopal's case, referred to above, were made while dismissing the revision petition in limine, and as such if this Court takes another view in this matter, there is no necessity to refer the case to a larger Bench, in this connection my attention has been drawn to the following observations of Gattani J. In Sahijram v. Transport Appellate Tribunal, Rajasthart and Ors. (S.S. Civil Writ Petition No. 2226 of 1970 decided on 11. 10. 71):

The learned Counsel for the respondent No. 3 relied on a decision in limine of this Court in S.B. Civil Writ Petition No. 442 of 1970 Ramkishore v. T.A.T., Rajasthan decided on 16. 4. 70. Thnis case has been relied upon by the T.A.T. as well. He has further contended that if this Bench prefers to take a different view, then the case might be referred to a larger Bench. The learned Counsel for the petitioner, however, urges that the case relied upon by the T.A. as well as the learned Counsel for respondent No. 3 was decided in limine and as such if this Court takes another view in the matter, there is no necessity for referring the case to a larger Bench. Reliance in this connection has been placed upon a Full Bench authority of the Nagpur High Court reported in AIR 1955 Nag 49. At one place in para No. 47 of that judgment, their lordships observed as follows:It must therefore be said that the decision on the point was given by the learned Judges 'per incuriam' When a decision is given by a Court 'per incuriam', it is not binding on a subsequent court; Young v. Bristol Aeroplane Co. Ltd 1944(1) KB 718 (H). and the opinion of Denning L., J. in 'Gower v. Gower' 1950 (1) All E. Rule 804 (I) On this ground also, 1 would hold that this Court was not bound to follow the decision in Misc Petition No. 392 of 1953 (Nag (A) on the particular point while deciding AIR 1955 NUC 148 (Nag) (B).

6. I have given my anxious consideration to the arguments advanced before me. So far as Sahijram's case is concerned, it is distinguishable on facts. The previous Single Bench decision of this Court cited before Gattani, J. in Sahijram's case was found to be given 'per incuriam'. But in the present case, the decision of Jagat Narayan, J. in Kishengopal's case, referred to above, cannot be regarded as given 'per incuriam' In Halsbury's Laws of England, Third Edition, Vol. 22, at pages 799 and 800, it is stated:

The decisions of the Court of Appeal upon questions of law must be followed by courts of first instance and are, as a general rule, considered by the Court of Appeal to be binding on itself, until a contrary determination has been arrived at by the House of Lords. There are, however three exceptions to this rule namely, that (1) the court is entitled and bound to decide which of two conflicting decisions of its own it will follow; (2) the court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinin, stand with a decision of the House of Lords; (3) the court is not bound to follow a decision of its own if given 'per incuriam. A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords. In the former case, it must decide which decision to follow, and it, the latter it is bound by the decision 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 statute. A decision should not be treated as given per incuriam, however, simply because of a deficiency of parties, or because the court had not the benefit of the best argument, and, as a general rule, the only cases in which decisions should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority. Even if a decision of the Court of Appeal has misinterpre-ted a previous decision of the House of Lords, the Court of Appeal must follow its previous decision and leave the House of Lords to rectify the mistake.

It is true that in Kishen Gopal's case, Jagat Narayan, J. did not give reasons for arriving at the conclusion that the Rajasthan Pre-emption Act was not applicable to the transfer of tenancy rights but all the same he has emobatically observed so. There is nothing to suegest that the decision given in Kishen Gopal's case was given in ignorance of a previous decision of this High Court or in ignorance of terms of a statute or the rule having the force of a statute. Truly speaking, it is the decision of Gattani, J. in Prabhudaval's case 1972 WLN 455 which was given per incuriam inasmuch as the earlier decision of Jagat Narayan, J. in Kishen Gopal's case was not brought to his notice. According to Halsbury's Laws of England, when two conflicting decisions are placed before a third Bench of co-ordinate jurisdiction, the latter is free to adopt that view which it considers to be in accordance with law and legal principles after taking into consideration the views expressed in two conflicting decisions. The above principle laid down in Halsbury's Laws of England was no doubt approved in Gundavarapu Seshamma's case, D.D. Bilimoria's case and Katragadda Virayya's case, referred to above, but their lordships in the Supreme Court in Jaisri Sahu v. Rajdewan Dubey and Ors. : [1962]2SCR558 did not approve this line of thinking and observed as follows:

Law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decisions, and it is therefore desirable that in case of difference of opinion, the question should be authoritatively settled.... The better course would be for the Bench hearing the case to refer the matter to a Full Bench in view of the conflicting authorities without taking upon itself to decide whether it should follow the one Bench decision or the other. We have no doubt that when such situations arise the Bench hearing cases would refer the matter for the decision of a Full Court.

Their lordships of the Supreme Court again in Lala Shri Bhagwan and Anr. v. Ramchand and Anr. : [1965]3SCR218 observed as follows:

It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety.

Later on, Shah, J. in Tribhovandas Purshottam Das Thakkar's case AIR 1968 SC 372 supra, disregarded the following observations of Raju, J of the Gujarat High Court:

(1) That even though there is a judgment of a Single Judge of the High Court of which he is a member or of a Division Bench of that High Court, he is not bound to follow that precedent, because by following the precedent the Judge would act contrary to Section 165 of the Indian Evidence Act, and would also violate the oath of office taken by him when entering upon his duties as a Judge under the Constitution; and (2) that a judgment of a Full Bench of the Court may be ignored by a single Judge, if the Full Banch judgment is given on a reference made on a question of law arising in a matter before a Single Judge or a Division Bench. Such a judgment, according to Raju, J. would 'not be a judgment at all' and 'has no existence in law.

Dealing with the above observation, Shah, J. observed:

The observations made by the learned Judge subvert the accepted notions about the force of precedents in our system of judicial administration. Precedents which enunciate rules of law form the foundation of administration of justice under our system. It has been held time and again that a Single Judge of a Hight Court is ordinarily bound to accept as correct judgments of Courts of co-ordinate jurisdiction and of Division Benches and of the Full Benches of this Court. The reason of the rule which makes a precedent binding lies in the desire to secure uniformity & certainty in the law.

Again in Sri Vanketeswara Rice, Ginning and Groundnut Oil Mill Contractors Co. etc. v. The State of Andhra Pradesh and Ors. AIR 972 SC 51 Hegde J. observed as follows:

It is strange that a coordinate Bench of the same Hight Court should have tried to sit on judgment over a decision of another Bench of that court. It is regrettable that the learned Judges who decided the latter case overlooked the fact that they were bound by the earlier decision should be reconsidered, they should have referred the question in issue to a larger Bench and not to ignore the earlier decision.

In view of the above authorities of their lordships of the Supreme Court, the only proper and correct course in the present case in view of two conflicting decisions of the learned Judges of this Court would be to refer the matter to a larger Bench.

7. The record of this case therefore be placed before the Hon'ble Chief Justice for constitution a Division Bench to examine the question involved in this case. As the point of law involved in this case is the only question to be determined, the entire case be referred to a Division Bench.


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