JUDGMENT

This appeal by special leave arises from the order of the Division Bench of Madhya Pradesh High Court dated July 30, 1974 in which it was held that an order passed by the Civil Court on reference under S. 49(1)of the Land Acquisition Act 1 of 1894 (for short the Act) is not a decree and, therefore, an appeal would not lie therefrom under S. 96 of C. P. C.

2. The facts lie in a short compass. Notification under S. 4(1)and declaration under S. 6, of the Act were published in the State Gazette acquiring land measuring 2 acres 46 cents (approximately) on Biaora village in Rajgarh District. The appellant had objected under S. 49(1)of the Act to the acquisition, contending that the entire land including his factory and office building should be acquired, without which the Act should not be put in operation. Thereon, reference under S. 49(1)was made to the Civil Court which by order dated April 29, 1969 held that the land proposed to be acquired did not form an integral part of appellants factory and office buildings and answered the reference accordingly. The appellants carried the matter in appeal to the High Court. In the High Court, when an objection was raised on behalf of the State, that the order of the Civil Court is not a decree and as such it is not appealable, obviously under S. 96 of C. P. C., it upheld the objection and dismissed the appeal as not maintainable.

3. The question, therefore, is whether the decision of the Civil Court on reference under S. 49(1)of the Act is a decree. It is not in doubt that the order of the Civil Court on a reference under S. 49(1)is not an award within the meaning of sub-section (2) of S. 26. Therefore, an appeal under S. 54 of the Act would not lie. The only question is whether it is a decree within the meaning of S. 2(2) of C. P.C. so as to make it appealable under S. 96 of C. P. C.

4. The contention of Sri P. S. Poti, learned senior counsel for the appellant is that. 1903 S. 49(1)of the Act confers a substantive right on a party to object to acquisition of only a part of any house, manufactory or other building. On such objection being raised, when a reference under S. 49(1)second proviso was made to a civil court, it would decide a dispute in its ordinary civil jurisdiction. It is an adjudication of the right of the owner, who objects to the continuance of the proceeding under the Act in relation to part of his house, manufactory or other building. It has all the trappings or characteristics of a final adjudication between the appellant and the Land Acquisition Officer and that, therefore, it is a decree within the meaning of S. 2(2) of C. P. C. What is provided for under S. 49(b) is the right of the owner to ask for acquisition of the whole property if it is not proposed for acquisition; and where the question whether the property left out of acquisition is part of their property, has to be adjudicated by Court, it is an adjudication on an issue relating to the question whether the property is a part of the building or not. When it is finally decided, it becomes conclusive between the parties and binds them. Therefore, it has all the trappings or characteristics of a decree. He contended that apart from S. 49(1)reference, similar right arises under Ss. 18 and 30 of the Act. In support thereof, he placed reliance on Secretary of State v. R. Narayanaswami Chettiar (AIR 1932 Mad 55 and Kali Prasad v. Govt. of Bihar (AIR 1945 Oat 461). When the same decisions had been cited, the Division Bench dissented from the ratio in those cases holding that:

"To hold a decision by a Court under S.49(1)of the Act amounts to a decree would be to slur over the requirements of a decree as defined in S. 2(2), C. P. C."

The learned Judges sought support for their view from the decision in Krishnamoorthi v. Spa. D. C. Kumbakonam (AIR 1936 Mad 514), Mahesh Missir v. Province of Bengal (AIR 1939 Cal 733) and Sarat Chandra v. Secretary of State (AIR 1919 Cal 86).

5. The question, therefore, is whether the de