IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. Civil Writ Petition No.2279 of 2001. KALU SON OF SHRI DEV LAL AND OTHERS VERSUS THE BOARD OF REVENUE FOR RAJASTHAN, AJMER & OTHERS Date Of Order ::: 04/03/2008. Hon'ble Mr. Narendra Kumar Jain J. Mr. K.K. Mehrishi, Counsel for the petitioners Mr. Ravi Kasliwal, Counsel for the respondents By the Court : Heard learned counsel for the parties. The petitioners have preferred this writ petition under Article 227 of the Constitution of India challenging the order passed by the Board of Revenue for Rajasthan, Ajmer dated 28.03.2001 (Annexure-6) and the judgment and decree dated 25.10.1991 (Annexure-4) passed by the Assistant Collector, Atru. Briefly stated the facts of the writ petition are that the sole plaintiff Smt. Sita Bai daughter of Shri Mangi Lal and wife of Shri Dev Lal, instituted a revenue suit in the Court of S.D.O. under Section 88, 53 and 188 of the Rajasthan Tenancy Act for declaration, division of holding and permanent injunction in respect of disputed property. The suit was decreed by the Assistant Collector, Atru. Being aggrieved with the above judgment and decree, the defendants no.7,8 and 9 namely; Kalu Ram, Hemraj and Prem Bai, filed an appeal before the Revenue Appellate Authority, Kota. The Revenue Appellate Authority vide its judgment dated 08.03.1995 set aside the judgment of the trial Court dated 25.10.19991 and remanded the matter to the trial Court for passing a fresh order in the case after hearing both the parties in the light of the observations made in its judgment. Being aggrieved with the judgment and decree passed by the Revenue Appellate Authority, the plaintiff Sita Bai filed a second appeal before the Board of Revenue for Rajasthan, Ajmer. The Board of Revenue vide its judgment dated 28.03.2001 allowed the appeal of the plaintiff, set aside the judgment passed by the Revenue Appellate Authority and restored the judgment and decree passed by the trial Court. The said judgment of the Board of Revenue is under challenge in this writ petition. Learned counsel for the defendant nos.7,8 and 9/petitioners contended that the Board of Revenue committed an illegality in entertaining the second appeal against the order of remand dated 08.03.1995 passed by the Revenue Appellate Authority, as the second appeal could have been preferred only against the judgment and decree, whereas the order of remand was not a decree. He has argued the other points regarding jurisdiction etc., and prayed that the impugned order passed by the Revenue Board is liable to be set aside. Learned counsel for the plaintiff/respondents contended that the point regarding maintainability of the second appeal was not argued by the petitioners before the Revenue Board, therefore, it should not be allowed to be argued here. He further contended that if the said point would have been argued before the Revenue Board, then an application could have been preferred by the respondents to convert the second appeal into revision petition. He also replied the other submissions of the learned counsel for the petitioners. During the course of arguments, the learned counsel for both the parties agreed and contended that the judgment and decree passed by the Revenue Board as well as Revenue Appellate Authority, both suffers from illegality and the same may be set aside and the case may be remanded back to the Revenue Appellate Authority for deciding the appeal filed before it against the judgment and decree passed by the S.D.O. on merits. I have considered the submissions of the learned counsel for both the parties. So far as the submissions of the learned counsel for the petitioners about the maintainability of the second appeal before the Revenue Board against the order of remand passed by the Revenue Appellate Authority is concerned, the same is legal one and can be allowed to be argued before this Court. The other submissions urged on behalf of both the parties relate to the question of fact and law, both. Both the parties have agreed, during the course of arguments that the matter may be remanded back to the Revenue Appellate Authority with a direction to hear the appeal filed against the order of S.D.O. on merits. I have also examined both the orders passed by the Revenue Board as well as Revenue Appellate Authority and I find that both orders are illegal and liable to be set aside and in my view the request of learned counsel for both the parties to remand the matter to the Revenue Appellate Authority appears to be just and reasonable and the same is allowed. Consequently, I allow the writ petition and set aside the judgments passed by the Revenue Board and the Revenue Appellate Authority, both, and the matter is remanded back to the Revenue Appellate Authority to decide the appeal filed by the defendant nos.7,8 and 9 against the judgment and decree dated 25.10.1991 on merits. Both the parties are directed to appear before the Revenue Appellate Authority, Kota on 9th April, 2008. There will be no order as to costs. (Narendra Kumar Jain) J. ashok/