1 3 S.B. CIVIL WRIT PETITION NO.1978/1997 Mangal Singh & Ors. Vs. State & Ors. .... Date of Order :: 18th November 2010. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.J.L.Purohit,for the petitioner. Mr.Sandeep Bhandawat, Government Counsel. .... BY THE COURT This writ petition has been preferred against the order dated 07.04.1997, passed by the Board of Revenue for Rajasthan, Ajmer, ('the Board') in Reference Case No.7/1995/ TA/ Barmer. The reference aforesaid came to be made by the Collector, Barmer by his order dated 18.04.1995 (Annex.3) taking exception against the judgment and decree dated 11.01.1991 as passed by the Assistant Collector, Gudamalani, Headquarter Barmer declaring the khatedari rights of the petitioner in relation to 47 bighas of land comprising in Khasara No.171 at village Junapatrasar. The learned Collector was of opinion that the petitioners were not entitled for any such declaration in their favour because they failed to adduce any evidence regarding possession; and, if at all, they were in possession of the land in question only for about four years 2 after Svt. Year 2040 as trespassers and were dispossessed from time to time. The Board of Revenue by its impugned order dated 07.04.1997 has accepted the reference and set aside the judgment and decree dated 11.01.1991. The Board of Revenue endorsed the observations of the learned Collector that the petitioners failed to adduce any evidence regarding possession; and that the petitioners had, at the most, the possession as trespassers. The Board of Revenue was of opinion that the learned Assistant Collector decreed the suit merely on the basis of unauthorised possession of the petitioners in a wholly illegal and irregular manner; and such a decree was required to be set aside. A submission was also made before the Board of Revenue on behalf of the petitioners that against the part of relief declined by the Trial Court, an appeal was preferred before the Revenue Appellate Authority; and the said appeal was decided on 20.01.1993. It was contended that the decree of the Assistant Collector, thus, got merged in the decree of the Appellate Authority and the reference was not maintainable. The Revenue Board rejected this contention with the observations that the said appeal was preferred by the plaintiffs and the case of merger would have arisen only if the State would have preferred the appeal. 3 Assailing the order aforesaid, the learned counsel for the petitioner contended that the decree in question was passed by the Assistant Collector in the year 1991 and making of reference four years later in the year 1995 and accepting of the same in the year 1997 was not justified because the power of reference ought to be exercised within reasonable time and in the present case, the inordinate delay operated against the respondents. The learned counsel further submitted that the appeal preferred by the petitioners was decided by the Revenue Appellate Authority on 20.01.1993 and therein, the Government Counsel supported the decree of the Trial Court meaning thereby that so far the decree in relation to khatedari rights of the petitioner was concerned, the same was never questioned by the respondent and was, rather, accepted before the Appellate Authority. The learned counsel contended that the respondents cannot now turn around and take a different stand so as to maintain the reference proceedings. The learned counsel has referred to the decisions in State of Rajasthan & Ors. Vs. M/s Classic Merchants Pvt.Ltd. & Ors.:2010(2) DNJ (Raj.) 906, Santoshkumar Shivgonda Patil & Ors. Vs. Balasaheb Tukaram Shevale & Ors.: 2009 (9) SCC 352, and State of Rajasthan Vs. Teja & Ors.: 2005(1) DNJ (Raj.) 162. 4 The learned Government counsel supported the order impugned and submitted that the power of the Board extends over all the subordinate revenue courts so as to regulate their functioning; and the reference was validly made to the Board and was validly accepted by it when the decree in question was found to be wholly baseless. Having considered the submission made by the learned counsel for the parties with reference to the material placed on record and the law applicable, this Court is of opinion that the impugned order as passed by the Board of Revenue cannot be sustained and the matter deserves to be remanded for re-consideration by the Board. For the matter being remanded to the Board, dilatation on all the issues arising between the parties and any expression on merits does not appear necessary. Suffice is to say for the present purpose that the Board of Revenue while passing the order impugned does not appear to have gone through the contents of the judgment and decree passed by the Revenue Appellate Authority on 20.01.1993 and does not appear to have considered the effect of the stand of the respective parties in such appeal. Having regard to the circumstances of the case, it appears necessary that all the related aspects of the matter be reconsidered by the Board 5 with reference to the material on record. Moreover, the effect of delay in making reference seems also not to have been considered by the Board. This aspect also deserves to be examined by the Board with reference to the binding pronouncements. In view of the above and without expressing any opinion on the merits of the case, it appears just and proper that the matter be remanded to the Board for decision afresh in accordance with law. In the light of what has been discussed above, this petition succeeds to the extent that the impugned order dated 07.04.1997 as passed by the Board of Revenue is set aside and the matter stands remanded to the Board of Revenue for consideration afresh and in accordance with law. The parties through their counsel are directed to remain present before the Board of Revenue in the first place on 20.12.2010. There shall be no orders as to costs of this petition. A copy of this order be sent to the Board of Revenue for Rajasthan, Ajmer. (DINESH MAHESHWARI), J. s.soni