1. Under Section 54 of the Land Acquisition Act, an appeal from the award of the District Court of Coimbatore was heard by a Bench consisting of Ayling and Sadasiva Iyer, JJ. Both the learned Judges differed, generally speaking, from the Land Acquisition Judge and among themselves on some questions relating to the principle on which the value of the property was to be assessed. The total amount claimed by the owner, was 8 lakhs. The land acquisition judge confirming the valuation of the Collector made ah award of one lakh and seventy two thousand rupees in round figures. Ayling, J. on the basis on which he proceeded held that the amount of the award should be enhanced by Rs. 7,000 and Sadasiva Aiyar, J. on the method of valuation adopted by him was for awarding on the whole an additional sum of about Rs. 56,000. We understand that a question was then raised before the learned judges as to what should be the order of the High Court under such circumstances. The learned Judges thereupon agreed upon the order in the appeal being that the decree of the District Judge should be modified by adding Rs. 8,050 to the award. In other words, they thought that that was the least amount to which the appellant was entitled, as that was an additional amount, which Ayling, J, wanted to award, and, according to Sadasiva Aiyar, J. the appellant was entitled' to something more and not less.

2. The appeal before us is filed under Clause 15 of the Letters Patent and the preliminary objection taken is that no such appeal is allowed by the law. That depends upon whether the decision of the High Court in an appeal under Section 54 of the Land Acquisition Act can be said to be a 'judgment' within the meaning of Clause 15 of the Letters Patent. It seems to me that the matter is not involved in any doubt in view of the decision of the Privy Council in Rangoon Boiatoung Company, Ltd. v. The Collector Rangoon (1912) I.L.R. 40 Cal. 21 and the judgment of the Bombay High Court in The Special Officer Salsette Building Sites v. Dassabhai Basanjhi (1912) I.L.R. 37 Bom. 506 confirmed as it was by the Privy Council as reported in The Special Officer Salsette Building Sites v. Dassabhi Basanji Motiwala (1913) 17 C.W.N. 42. In the first case, their Lordships described an award made under the Land Acquisition Act as the determination of arbitrators as to the value of the land taken for public purposes, and upon that ground they refused to accept the argument that once the claimant is admitted to the High Court as appellant under Section 54 of the Act, he has all the rights of an ordinary suitor including the right to carry the award up to the Board as if it were a decree of the High Court made in the exercise of its ordinary civil jurisdiction. It will be seen from the report of the argument of Buckmaster, K. C, (late Lord Chancellor) that almost his whole argument against the maintainability of the appeal was based on the use of the word "award" in the Act. His contention was that the Legislature wanted the determination of the land acquisition tribunal to be distinguished from an "order" "or decree" of an ordinary civil court.

3. In the case in the Bombay High Court, the learned Judges had to consider whether Clause 39 of the Letters Patent of the Bombay High Court, which is in the same language as Clause 39 of the Letters Patent of the Madras High Court, allowed an appeal to the Privy Council, for no arguments were or could have been based in the Rangoon Company's case on any such Clause as the Chief Court of Lower Burma was not constituted under Letters Patent. The Letters Patent allow an appeal from a ' final judgment,' 'decree' or 'order' of the High Court. Mr. Justice Batchelor and Mr. Justice Heaton interpreting the ruling of the Privy Council in the Rangoon case as laying down that an award in a land acquisition case is more in the nature of an award of an arbitrator than a 'judgment', 'decree' or 'order' of a civil court, held that the parties have no further or other rights of appeal than that expressly given by the, legislature. On the matter being' taken to the Privy Council, they refused to grant leave to appeal, and if the arguments at the bar and the observations of the learned Lords of the Privy Council, are correctly reported in The Special Officer, Salsette Building Sites v. Dassabhai Basanji Motiwala (1913) 17 C.W.N 421 it would appear that the Judicial Committee refused to regard the decision of the Bombay High Court in an appeal under Section 54 of the Land Acquisition Act as a 'judgment', 'decree' or 'order' of a High Court within the meaning of Clause 39 of the Letters Patent. The attempt therefore of Mr. T.R. Ramachandra Aiyar to distinguish the ruling of the Privy Council in Rangoon Botatoung Company, Ltd. v. The Collector Rangoon (1912) I.L.R. 40. Cal. 21 : 23 M.L.J. 276 on the ground that the appeal to the Privy Council was from the decision of a Judge of the Rangoon Chief Court acting as the Land Acquisition Judge and not of the Chief Court as an appellate tribunal hearing an appeal under Section 54, must fail. It is not suggested that the word 'judgment' in Clause 15 of the Letters Patent, is used in a different or wider sense than in Clause 39. As for Secretary of State for India v. Chellikani Rama Ran (1912) I.L.R. 39 Mad, 617 : 31 M.L.J. 324 which was also referred to at the bar I do not think that there is anything in the judgment of the Privy Council in that case which can be said to have modified the law enunciated in Rangoon Botatoung Co. v. Collector Rangoon (1912) I.L.R. 40. Cal. 21 : 23 M.L.J. 276.

4. We have then been asked to consider whether Section 98 of the Civil Procedure Code applies to this case. In my opinion it does. Section 54 of the Land Acquisition Act says that the appeal to the High Court shall be subject to the provisions of the Code of Civil Procedure applicable to appeals from original decrees; and it seems tome that Section 98 is one of the provisions of the Code which is so made applicable, for apart from it, there is no procedure prescribed, by which the order to be passed in the cases of differences of opinion contemplated there, could be ascertained. No doubt in sub-section 2 of that section the words 'decree' and 'judgment' are used, but they are the ordinary terms used in part VII of the Code dealing with appeals from original decrees, as also elsewhere throughout the Code. But Sub-section 1 and 2 of Section 98 do not confer any right of appeal; they only lay down how an appeal heard by a Bench of two or more Judges is to be disposed of in certain contingencies. The principle governing the question as to the right of appeal to the Privy Council or to the High Court under Clause 15 of the Betters Patent has no application to Section 98. The provisions of the Civil Procedure Code relating to appeals from original decrees as laying down the procedure for the hearing and disposal of such appeals are made applicable to appeals under Section 54 of the Land Acquisition Act by express reference. The application of those provisions cannot therefore be excluded because of the use of the words " judgment" and "decree" in the sections, orders and rules bearing on the subject.

5. Sub-Section 2 of Section 98 provides that

" where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed,"

and this in terms applies to what has happened in this case. I should say therefore that the result of the hearing before Ayling and Sadasiva Aiyar, J.J. must be taken to be that the award of the District Judge was confirmed. But Mr. Ramesam appearing for the Government, the respondent in the appeal, is content to accept the award proposed by Ayling, J., and which to that extent was accepted by Sadasiva Aiyar, J. It thus becomes unnecessary to decide whether the order of the Court consisting of Ayling and Sadasiva Aiyar J, J. was a proper order. We have in this connection been referred to a decision of the Calcutta High Court in Krishen Dayal v. Irshad Ali ( 1918) 22 C.L.J. 525 at 538 but I do not think that the circumstances of that case afford' a very close parallel, to the present case. If necessary, the Calcutta ruling could be distinguished on the ground that the learned Judges who heard the appeal in this case differed from each other and from the land acquisition Judge on matters relating to the principle of valuation and not merely on a question of figures, and I should be inclined to think that the order of the High Court was not in accordance with Sub-Section 2 of Section 98.

6. I may also mention that Mr. Ramachandra Aiyar drew our attention to Rule 2 of the Appellate Side Rules under which the Bench composed of Ayling and Sadasiva Aiyar, J.J. was constituted and under which other Benches are ordinarily constituted for the hearing of appeals under Section 54 of the Land Acquisition Act. The rule provides for a Bench of two Judges who are ordinarily to hear and determine appeals from 'the decree or order of a Civil Court" and Mr. Ramachandra Aiyar's argument was that if we hold that the decision of the High Court in an appeal under Section 54 is not a decree or order of a Civil Court, we must also hold that Ayling and Sadasiva Aiyar, J.J. had no jurisdiction to hear the appeal at all. I am not prepared to hold that there is force in this contention though the argument is not without an appearance of plausibility. The rules are framed under the powers vested in the High Court not merely by the Charter Act and the Letters Patent, but also by the Civil Procedure Code and as the provision of the Civil Procedure Code relating to appeals from original decrees are expressly made applicable to appeals to the High Court from the award of a land acquisition Judge, I should think that the words " decree or order of a Civil Court" in Clause (a), Sub-rule 2 of Rule 2 of the Appellate Side Eules do not preclude the application of this rule to cases' of appeals under Section 54 of the Land Acquisition Act. The District Judge against whose award the appeal was heard tried the case as the tribunal designated as "the principal Civil Court of original jurisdiction," and in my opinion, it would not be unduly straining the language of Rule 2(Appellate Side Rules) to say that the award of such a court 'is a decree or order of a Civil Court' for purposes of the procedure to be followed in the hearing and disposal of an appeal from the award of that court as prescribed by the provisions of the Code of Civil Procedure which are expressly referred to in Section 51. I hold that the preliminary objection is valid and the appeal must be dismissed with costs.

Oldfield, J.

7. I agree.

Seshagiri Aiyar, J.

8. In my opinion the preliminary objection is well founded. The decision against which the Letters Patent appeal has been preferred is practically the result of a compromise. Mr. Justice Ayling was for giving Es. 7,000 more to the claimant than' was awarded by the District Judge. Mr. Justice Sadasiva Aiyar was prepared to increase it by over Es. 50,000. Neither of them was for confirming the award of the District Judge. Both of them were for varying it, one learned Judge to a small extent, the other to a larger extent. In the result, the Court's order was that the award should be increased by Es. 7,000 plus the usual 15 per cent. To such a state of affairs, the language of Section 98 of the Code of Civil Procedure seems inapplicable. Clause (1) contemplates the concurrence of the Judges or a majority. There is neither in this case. Clause (2) provides for confirmation of the lower Court's decision when the Judges are not agreed. That has not been done in this case. The proviso, as is very often the casein Indian enactments, introduces an exception to the rule requiring the confirmation and only applies where the Judges differ on a question of law. Ex facie, therefore, the conclusion come to by the learned Judges in this case does not appear to be within the letter of the section; although if the District Judge's judgment were confirmed, the section would have been satisfied.

9. Mr. T.R. Ramachandra Aiyar contended that the conclusion is in accordance with the view taken by a bench of three Judges in Krishen Dayal v. Irshad Ali (1915) 22 C.L.J : 525. Mr. Justice Mookerjee alone deals with the present question. In substance what the learned Judge says amounts to dividing the judgment of a lower court into compartments, and to appropriating the differing judges' views pro rata to such of them as are concurred in, and to others which are not approved of. Such a procedure is hardly compatible with the avowed policy of the legislature. In effect the view leads to countenancing the splitting up of a single judgment into a number of judgments. If this process is logically applied, whenever there is a concurrence with the decision of a Court below on one of the issues, to that extent there must be a confirmation leaving the other issues on which there is a difference of opinion to be adjusted otherwise. If there is a judgment relating to a number of items of land or accounts, the final result as to each of the items will have to be settled in the same way. By parity of reasoning, when there is a judgment for Rs. 10,000 the decision must for purposes of Section 98 be regarded as having been given in respect of each rupee or groups of tens or hundreds of rupees. With all respect, I am unable to uphold such a piecemeal apportionment of a single decree. I am not losing sight of the fact that there were practically distinct subject matters in the suit from which the appeal was heard in the Calcutta case. None the less, the logical application of the principle of that decision to cases of money claims shows that the section was not intended to be construed as suggested. Mr. Justice Chatterjee in the original judgment from which there was the Letters Patent appeal, says that clause (1) of section 98 justifies the procedure adopted by him. That clause speaks of the appeal in its entirety, and of its confirmation or variation as a whole. I am unable to construe the clause as reading "the appeal or such portion of it as is concurred in by the Judges" shall be decided in accordance with the opinion of such Judges.

10. In the present case there is greater difficulty than was present in the Calcutta case. The conclusion to increase the award by Es. 7,000 was not based on any point on which the learned Judges agreed. Mr. Justice Ayling and Mr. Justice Sadasiva Aiyar proceeded to award compensation on different principles. Both of them to a certain extent disagreed with the court below and with each other. To such a decision I find it difficult to apply the language of section 98 of the code. The result is that there is no judgment which attracts the provision of section 15 of the Letters Patent, and consequently no appeal lies under it.

11. Mr. Ramachandra Aiyar next suggested that the final decision may be regarded as that of Mr. Justice Ayling the senior Judge so as to invite Section 36 of the Letters Patent. There are two difficulties in the way. In the first place, the recorded note speaks of the final award as that of the Court of the two Judges. In the second place it seems clear as contended by the learned Government Pleader that it is not a case to which any section of the Letters Patent can apply.

12. Before dealing with the larger question whether an award in a Land Acquisition case is a judgment, I shall consider the shorter point whether Section 36 of the Letters Patent applies. Section 44 says that. " The provisions are subject to the legislative powers of the Governor-General in Council". The Code of Civil Procedure enacted by this authority makes provision for cases of difference of opinion by Section 98. But that provision is defective and has not taken into account differences like the present one. Therefore it is open to argument that the Letters Patent must at least be taken to be supplementary of the Code. Although I was at first inclined to the view that Section 36 of the Letters Patent should be confined to appeals from the original side, as such a provision exists, as pointed out by Mr. Justice Oldfield in the course of the argument, in the Allahabad Letters Patent which did not contemplate an original Civil Jurisdiction, I have come to the conclusion that the section is applicable to moffussil appeals as well. In practice this conclusion may lead to difficulties. Whether Section 98 of the Code or Section 36 of the Letters Patent applies to a given case may not easily be determined. One rule may be acted upon, namely that the Letters Patent should be invoked only in cases Which are not covered by the Code.

13. As regards decided cases Narayanaswami Reddi v. Osuru Reddi (1901) I.L.R. 25 M. 518 a Full Bench of this Court held that Section 36 of the Letters Patent cannot apply to moSussil appeals. In re Karri Venhanna Patrudu (1915) 18 M.L.T. 591 takes a different view, although it should be noted that the Full Bench case was not quoted before the learned Judges. Roop Laul v. Lakshmi Doss (1905) I.L.R. 29 M. 1 lays down the converse of the proposition enunciated in Narayanasami Reddi v. Osuru Reddi (1901) I.L.R. 25 M. 518. In Surajmal v. Horniman (1917) 20 Bom. L.R. 188 reported since we heard the arguments in this case, Sir Basil Scott, C.J., refers to Sections 4 and 129 of the Code of Civil Procedure as pointing to the conclusion that Section 36 of the Letters Patent is alone applicable to appeals from the Original Side. This does not affect the question whether that section subject to any law that may be passed by the Governor-General in Council is not intended to provide for differences of opinion in moffusil appeals. Mr. Justice Chatterjee says in Krishen Doyal v. Irshad Ali (1916) 22 C.L.J. 538 that Section 36 of the Letters Patent is applicable whenever section 98 of the code is not applicable. That seems to be the better view. I have therefore come to the conclusion, though not without hesitation, that Section 36 of the Letters Patent applies to this case, if otherwise the decision is within its terms.

14. The last question is whether the pronouncement of the two learned Judges in this case amounts to a judgment within the meaning of Sections 15 and 36 of the Letters Patent. If the matter were res Integra I would have agreed with Mr. Ramachandra Aiyar on this point. There is great force in the learned Vakil's contention that a conclusion come to by the tribunals exercising jurisdiction under the Land Acquisition Act is not an award like that given by an arbitrator or by an umpire. In the Land Acquisition Act I of 1894, first of all there is proposal by the acquiring officer in which he fixes the amount of compensation which he is prepared to give to the claimant. If the claimant accepts, the proposal there is a concluded bargain. If the claimant disputes the correctness of the acquiring officer's valuation he is entitled to ask that the question be referred for the decision of a Civil Court. The Judge of the Civil Court exercises all the functions and previleges of a Judge who is hearing a contested case. The Government on the one hand, and the claimant on the other, adduce evidence of their respective contentions. The Judge gives his decision on weighing the evidence placed before him. There is no provision in the Act by which finality is given to the decision thus arrived at. It is open to appeal under Section 54 of the Act. Moreover the question may arise and very often does arise, as to whether A or B is entitled to the compensation which may be fixed by the acquiring officer or by the Court. Thus there will be a tripartite contest. The tribunal will have to decide first between the contesting claims of the rival claimants, and then to fix the amount of valuation.

15. Further there may be oases in which the mode of apportioning the compensation between rival claimants, as in the case of a landlord and tenant, will have to be enquired into by the tribunals. There will thus be difficult questions relating to title, questions relating to mode of apportionment questions relating to the mode of valuation, cropping up in the course of a land acquisition case. The Judge who determines these questions is not acting as an arbitrator, in the proper significance of that term. Therefore there is considerable force in the contenion of the learned Vakil for the appellant that the decision arrived at under these circumstances is a judgment in its most accepted sense. But however, speculation is not possible on a question of this kind. The Judicial Committee of the Privy Council have said the last, if not the final word on the subject. In Rangoon Botatoung Go. v. The Collector Rangoon (1912) I.L.R. 40 C. 21 they first propounded the view that the conclusion come to by the Appellate Court under Section 54 of the Land Acquisition Act is not a judgment, but partakes the character of an award. In a later case in The Special Officer Salsette Building Sites v. Dessabhai Basanji (1913) 17 C.W.N. 421 there are observations of the members constituting the Board which undoubtedly point to the conclusion that in the opinion of their Lordships the decision on appeal in a land acquisition case is not a judgment. It is true, as Mr. Ramachandra Aiyar argued, that the report of the observations is not authentic in the sense that they appear in a publication sanctioned by the Judicial Committee. But there is no reason for supposing that these observations were invented. Moreover if we bear in mind that the application for special leave was made to the Judicial Committee after the refusal of the learned Judges who heard the case to grant a certificate under the Coda of Civil Procedure (Vide The Special Ofjicer, Salsette Building Sites v. Dassabhai Basanji (1912) I.L.R. 37 B 506) there can be no doubt that the Judicial Committee did intend to lay down the proposition contended for by the learned Government Pleader.

16. Lastly we have the latest Privy Council decision in Secretary of State for India v. Chellikani Rama Row (1916) I.L.R. 39 M. 617. That was a case under the Forest Act : It was there pointed out that when under a local or special enactment an appeal is preferred to a District Court, the provisions of the Code relating to Appeals and to further appeals therefrom ordinarily govern such an appeal; but that appeals in land acquisition cases stand on a different footing. The inference is irresistible that the Judicial Committee have definitely come to the conclusion that no appeal lies to them from a judgment of the High Court in a land acquisition proceeding. It may be that His Majesty the King's unlimited prerogative of hearing appeals from any judicial proceedings may induce the Judicial Committee to grant special leave in this case. But we are not concerned with that question. It seems to me that the conclusion is forced on us that the decision in the present case is not a judgment within the meaning of that expression in Clause 15 or 36 of the Letters Patent. The preliminary objection must prevail and the appeal should be rejected with costs