CW 5895/99 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** 1-Civil Writ Petition No.5895/1999 Naresh Sharma & Others Versus State & Ors. 2-Civil Writ Petition No.5897/1999 Naresh Sharma & Others Versus UIT Ajmer & Ors. Date of Order ::: 10/07/09 Hon'ble Mr. Justice Ajay Rastogi Mr. GL Pareek, with Mr. AN Sharma) Mr. JM Saxena ), for petitioner Mr. Rajesh Kapoor for respondent No.3 Mr. RK Mathur for respondent No.4. Since both the petitions involve common question, assailing judgment dt.06/10/99 (Ann.1) passed by Board of Revenue Rajasthan Ajmer; hence are being decided by this order. Petitioners &respondent NO.4 herein are subsequent purchasers who had purchased the land in question through registered sale deeds dt. 12/05/1986 & 30/07/1986 (Ann.5 & 6-CWP-5897/99). Facts necessary for adjudication of controversy raised herein are inter-alia as alleged that initially agricultural land bearing khasra No.1672 situated in village Thok Teliyan popularly known as Jatia belonged to Shamlat Committee, Thok Teliyan, Ajmer on the basis of revenue laws of erstwhile State of Ajmer. This land bearing Khasra NO.1672 subsequently stood divided into ad infra: (a) Khasra NO.1672/1 - 8 Bighas 2 biswa; CW 5895/99 //2// (b) Khasra No.1672/2 – 16 biswa; (c) Khasra NO.1672/3 - 1 biswa; (d) Khasra No.1672/4 – 4 biswa; & (e) Khasra NO.1672/5 – 8 bigha 3 biswa. Shri Beharilal, President of Shamlat Committee, Thok Teliyan, Ajmer had moved an application (NO.176/1939) before Collector Ajmer on 16/08/39 U/s 3 of the Ajmer Marwara Alienation of Land Regulation III of 1914 seeking permission to sell the land through auction, for purposes of constructing buildings. This application was allowed by Collector Ajmer vide order dt. 17/06/1939 (Ann.11) whereby permission to sell the aforesaid land (Khasra No.1672-Khata No.211, measuring 3 bighas 15 biswa & 5 biswansi-Gair Mumkin) to Lala Madan Mohan Lal s/o Lala Suraj Narain Kayasth of Shahpura was granted. Another application (Case No.52/1938) was also moved on behalf of Shamlat Committee seeking permission to sell the land of Khasra No.1672 measuring 4 bighas 8 biswa Gair Mumkin in favour of afore- named (Lala Madan Mohan), which was allowed vide order dt.03/03/39 (Ann.9) – in pursuance whereof, total land measuring 8 bighas 3 biswa 5 biswansi was sold to Lala Madan Mohan Lal. Upon death of Madan Mohan Lal, his son Basanti Lal Mathur succeeded and became successor in title over aforesaid land; thereby mutation was entered in CW 5895/99 //3// favour of Basantilal Mathur, who subsequently sold the aforesaid land in favour of Inderjeet Dev s/o Maharaja Shri Dhiraj Sudami Dev, Ex-Ruler of Shahpura vide registered sale deed dt. 09/08/1938 (Ann.12). Later on, Shamlat Committee dissolved on 12/01/1941. The land stood divided into its members & purchasers while the land bearing Khasra No.1672 was also divided into. As alleged, the land in dispute is a part of Khasra NO.1672 of Khata No.211/4 measuring 8 bighas 3 biswa & 5 biswansi; and in subsequent settlement, new Khata NO.509 was assigned to old Khata No.211/4. On 12/05/1986, a sale deed was executed by owner of land in dispute (Inderjeet Dev, respondent NO.2 herein) in respect of Khasra NO.2648 & 2680 which are new Khasra Numbers out of old No.1672. Remaining part of land measuring 6 bighas 3 biswa of New Khasra No.2648 (brought out of Old Khasra NO.1672) was also sold through sale deed dt.30/07/1986 duly registered in office of Sub-Registrar, Ajmer on 31/07/86. Somewhere in the year 1971, application was moved by Inderjeet Singh Dev, seeking sub- division of the land which was recorded as Gair Mumkin in revenue record under orders of the Collector, Ajmer; but the same was rejected by CW 5895/99 //4// Urban Improvement Trust, Ajmer on 06/05/1972 while directing Inderjeet Singh Dev to get the land firstly declared as his personal property. Accordingly, application (Ann.15) for declaration of land in dispute as personal property of Inderjeet Singh Dev was filed before Sub-Divisional Officer, Ajmer, which was partly allowed. However, since major part of the land was not declared as personal property vide order dt.13/01/86 (Ann.4), despite material available on record which was not properly appreciated by SDO, review petition was filed in March, 1986 by Inderjeet Singh Dev U/s 26 of Rajasthan Zamindari & Biswedari Abolition Act, 1959 (“Abolition Act”) before Sub-Divisional Officer, Ajmer, who after due appreciation of material available on record including public documents which could not have been properly noticed and appreciated by the authority in earlier order, finally allowed the review petition and remaining part of the land in dispute was also declared as personal property vide order dt.26/05/1986 (Ann.3). The State and Urban Improvement Trust, Ajmer being aggrieved by aforesaid order (Ann.3) while allowing review petition, separately preferred appeals before Revenue Appellate Authority, Ajmer. It is relevant to mention that CW 5895/99 //5// both the appellants (supra) challenged review order dt.26/05/86 (Ann.3) on merits and none had ever raised grievance that no power was vested with the SDO to review its order or it was beyond the scope of review if vested with the authority. Since dispute before revenue appellate authority was raised on merits and after appreciation of material on record made available before SDO while passing the review order impugned, the Revenue appellate authority dismissed the appeals of both the appellants (State & UIT) vide order dt.22/01/87 (Ann.2) – against which both, the State & UIT preferred second appeals before Board of Revenue, Rajasthan, Ajmer (“the Board”). But, the Board allowed the appeals solely on the ground that order impugned dt.26/05/86 was beyond the scope of review, hence set aside vide order dt.06/10/99 (Ann.1). Hence these petitions. Counsel for petitioners submits that while examining scope of review, the Board committed serious error of law since review application before SDO was moved by petitioners U/s 26 of the Abolition Act whereas the Board examined power of review vested U/s 229 of Rajasthan Tenancy Act read with O.47, R.1, CPC, to which S.26 of Abolition Act is not akin; in such circumstances, very finding recorded by the CW 5895/99 //6// Board in holding that the order impugned was beyond the scope of review under provisions of law, is not legally sustainable. Counsel further submits that the review order dt.26/05/86 (Ann.3) passed in exercise of powers U/s 26 of Abolition Act was assailed by the State and UIT before revenue appellate authority on merits, where none of them raised any objection either with respect to power of review or jurisdiction vested with SDO; that being so, their appeals were dismissed after appreciation on merits; as such, question raised as to power of review & jurisdiction stood waived by them; inasmuch as this being a question of law & facts certainly could not have been raised for the first time before the Board, and it was an apparent error committed by the Board while passing order impugned. Counsel for the State & UIT jointly submit that the question raised as to whether the authority was competent in holding jurisdiction to review its own order under limited scope vested U/s 26 of Abolition Act, being purely a legal question, could certainly be considered by the Board and since it was not within the ambit and scope U/O 47 R.1, CPC, in such circumstances, the Board has not committed any error in setting CW 5895/99 //7// aside the order of Revenue appellate authority passed in appeals and order of SDO (Ann.3) passed in exercise of powers of review U/s 26 of Abolition Act. Submissions were also made by Counsel for respondents even on merits to justify that subsequent order passed on review application by SDO declaring major part of land as personal property was not legally sustainable since there was no material available on record even at the stage of order being reviewed by the SDO. I have considered rival contentions of Counsel for the parties and with their assistance examined material on record. Initial application filed by Inderjeet Singh Dev for declaration of his land as personal property on 03/08/82 was partly allowed vide order dt.13/01/86 (Ann.4); and despite relevant material being available on record, when major part of land in dispute was not declared as personal property; to get it properly appreciated material already available on record besides additional public documents placed alongwith application, Inderjeet Singh Dev, sought review in exercise of power U/s 26 of Abolition Act and after taking note of public documents (supra), review application was allowed by SDO and remaining part of land was also CW 5895/99 //8// declared as personal property vide order dt. 26/05/86 (Ann.3) impugned. Before examining the issue raised herein any further it would be appropriate to refer observations made by SDO (original authority) in exercise of power of review ad infra: - “In the face of all this documentary evidence to deprive the applicant of his rights on the basis of only one document, the fard mustabik of settlement department in which the Khata Numbers may have been interchanged due to the resemblance between the area 6-3-0 and 6-2-0 of two khasra numbers, would be to contravene the ends of justice. From the available record, it is clear that there has been an error on the face of the record and that khasra NO.2648 min area 6-3-0 is really the personal property of the applicant and may be declared as such because old khasra NO.1672/5 area 6-3-0 became part of new khasra No.2648 min whereas old khasra NO.1672/1 area 6-2-0 became part of new khasra NO.2683 which is not part of the land prayed for in the review application.” Hence the order of the Sub Divisional Officer dated 13-1-1986 is modified to include new khasra No.2648 min area 6-3-0 (which is part of old Khasra No.1672/5 area 8-3-0) as personal property of the applicant.” CW 5895/99 //9// What has been taken note of by original authority was based on documentary evidence being either available on record while initial application was decided or relying upon some of public documents placed alongwith review application. But the fact remains that on the basis of appreciation of public documents, the review application was decided by the SDO in exercise of powers U/s 26 of Abolition Act. It was also not case of respondents herein before revenue appellate authority that power of review is not vested with the authority or was beyond its scope exercised under Abolition Act. Power of review U/s 26 of the Abolition Act is indeed available but at the stage when appeals were preferred before the Revenue appellate authority the issue could have been raised for consideration but none of respondents (State & UIT) raised objection about power of review vested and exercised with SDO U/s 26 of Abolition Act. Submissions in fact were made on merits by State & UIT before revenue appellate authority, while examining the issue as to whether order passed by SDO in declaring major part of the land as personal property, was justified; and accordingly, revenue appellate authority examined the dispute on merits and CW 5895/99 //10// finally dismissed their appeals after appreciating material on record. However, at the stage when appeals were preferred before the Board, question raised for consideration was as to whether power of review was judiciously exercised under limited scope of the Act, 1959. As already observed (supra), a legal question can certainly be raised at the stage of second appeal but in the opinion of this Court, it was a mixed question of law & fact and if respondents failed to raise such a question before revenue appellate authority and examined the dispute on merits, certainly the alleged legal question, if at all available to the State & UIT, stood waived and was not available for consideration before the Board. That apart, the Board, itself, has committed a manifest error of law in examining scope of review. In fact, power of review is vested with the authority (SDO) U/s 26 of Abolition Act, whereas the Board examined power of review vested U/s 229 of the Tenancy Act read with O.47 R.1, CPC. Section 229 of Tenant Act is certainly akin to O.47 R.1, CPC but the Board has not taken note of power of review vested with the authority (SDO) U/s 26 of Abolition Act, which the SDO CW 5895/99 //11// exercised while passing review order dt.26/05/86 (Ann.3) impugned herein. Revenue appellate authority has examined the dispute basically on merits and confirmed the review order passed by the SDO in exercise of powers U/s 26 of Abolition Act but the Board failed to examine as to whether material was available on record to justify the order (Ann.3) passed by SDO, which the revenue appellate authority examined and appreciated in details. In the opinion of this Court, the Board has committed manifest error of law in taking note of powers U/s 229 of Tenancy Act read with O.47, R.1, CPC while examining as to whether power of review was judiciously exercised by the SDO, without taking note that power of review is vested with authority (SDO) while passing order impugned (Ann.3) U/s 26 of Abolition Act and which is not akin to O.47, R.1, CPC. Consequently, both the writ petitions succeed and are hereby allowed. Common judgment dt.06/10/99 (Ann.1) passed by the Board of Revenue Ajmer in Appeal/RZBA/1/87/Ajmer (UIT, Ajmer Vs. Inderjeet Dev) & Appeal/RZBA/2/87/Ajmer (State Vs. Inderjeet Dev) is hereby set aside. Since the issue on merits has not been adjudicated by the Board, matter deserves to be remanded back for re-consideration and to examine CW 5895/99 //12// the issues raised on merits after affording opportunity of hearing to parties concerned. Since it is an old matter having remained pending for last more than a decade, this Court considers it proper to direct the parties to appear on 24/08/09 alongwith a copy of this order before the Board, which is expected to dispose of the matter expeditiously. A copy of the order be sent to the Board of Revenue, Ajmer for compliance. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.12/5895CW99Rsr10Jul.doc