MODI, J.—The question referred to the Full Bench are as follows :—

(1) What is the interpretation to be put on the Exception to Rule 17 of the Ijlas-i-Khas Rules of 1939, and whether it is necessary that there should be an issue as to the nature of the tenure before the exception applies and the conditions contained in clause (a) of Rule 17 can be waived, and whether the decision in Hukum Singhs case is correct ?

(2) Is the decision in Udaimals case correct in view of the fact that Order 45, and particularly O. 45, R. 3, were not in force in the former State of Jodhpur, and whether in view of these facts it is open to a party to whom leave has been granted, to urge other grounds in support of the leave than those on which leave was granted to him by the Chief Court?

2. The facts of the two connected cases out of which this reference has arisen may be stated very shortly for our present purpose. The dispute relates to the succession to the Jagir of Malpuria, Tehsil Sojat, District Pali, and arose on the death of its last holder Ganeshlal. Two rival claims are put forward; one on behalf of Mohanlal appellant in both cases, and the other on behalf of Ambalal and others who were respondents. The former claimed the Jagir as the adopted son of the deceased Ganeshlal while the latter on the ground that they were the next heirs of the deceased, and that the adoption of Mohanlal was void and inoperative so far as succession to the Jagir was concerned, because Mohanlal was out-side the line of original grantee to whom the Jagir was granted by the former State of Jodhpur. Both claimants filed separate suits for a declaration of their respective rights which met with very-ing fortune from court to court, and the Chief Court of the former State of Jodhpur dismissed Mohan Lals suit and decreed the claim of the rival clai-mants. Mohanlal applied for leave to appeal to the Ijlas-i-Khas, and the Chief Court granted leave in both cases with the result that both appeals came up for hearing before a Division Bench of this Court who have made the present reference.

3. It was argued before the learned Judges of the Division Bench, on behalf of the respondents, that the leave to appeal granted by the Chief Court apparently under the Exception to Rule 17 of the Ijlas-i-Khas Rules of 1939 had been erroneously granted and therefore, the appeals were incompetent. The argument was that the valuation of both the suits was admittedly below Rs. 5,000/- and, therefore, 17(a) did not apply and Exception to Rule 17 also did not apply as there was no dispute whatsoever in the suits regarding the tenure in which the Jagir in question was held, and the dispute between the parties merely centred round their rights to succeed to the Jagir. This contention was sought to be met on behalf of the appellants on the authority of Hukam Singh vs. Bhanwar Singh (1) (AIR 1950 Raj., 39.), where a Division Bench of this Court held in effect that the conditions of the Exception were fulfilled where the dispute related to a Jagir, and the judgment of the High Court was one of variance from that of the court below and it was not further necessary that there need have been any controversy regarding the tenure in which the Jagir was held. It may be pointed out that the learned Judges there were called upon to deal with the Ijalas-i-Khas Rules of 1945 and its Rule 18(b) which is the corresponding rule to the Exception to Rule 17 of the Rules of 1939 according to which a further condition as to judgment not being one of affirmance had been prescribed as one of the essential requirements for the applicability of that rule. But the corresponding provision in rule 17 of the Ijlas-i-Khas Rules of 1939 did not contain any such condition and, therefore, nothing turns on this additional qualification so far as the cases before us are concerned. It was contended on the other hand on behalf of the respondent that Hukamsinghs case was wrongly decided inasmuch as it unduly cut down the true import

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