1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.4058/2000 Nandlal vs. Board of Revenue & Ors. Date of order : 7/3/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Smt. Vidhu Bala for the petitioner. Shri Rajendra Dixit for the respondent. ****** Heard learned counsel for the parties. This writ petition has been filed against the judgment of the Board of Revenue dated 23.6.2000 whereby the revenue suit filed by plaintiff-respondent under Section 183 of the Rajasthan Tenancy Act has been decreed in the appeal filed by the defendant-petitioner. Originally the suit filed by the plaintiff-respondent was dismissed by the learned Sub-Divisional Officer by his order dated 17.2.1994. The appeal filed by the plaintiff-respondent thereagainst however was partly allowed by the Revenue Appellate Authority vide judgment dated 28.2.1995. The Revenue Appellate Authority remanded the matter back to the learned Court of SDO for deciding it afresh. The petitioner filed appeal against 2 that judgment of the Revenue Appellate Authority before the Board of Revenue. The Board however, decided the appeal vide its judgment dated 23.6.2000 setting aside both the orders passed by SDO and Revenue Appellate Authority and decreeing the suit filed by the plaintiff-respondent. Smt. Vidhu Bala, learned counsel for the petitioner has argued that the case of the plaintiff-respondent was that the disputed property was mortgaged with the predecessor- in-title of the defendant-petitioner by his forefathers in Svt. 1991, but the same was redeemed in Svt. 2032 and since then the defendant-petitioner is trespassers over such land. It was argued that the case of the plaintiff-respondent was not found proved by learned SDO who held that the defendant-petitioner was having adverse possession over the disputed land for last 90 years and thereby acquired its title. The Revenue Appellate Authority reversed that finding and held that the possession of the defendant-petitioner cannot be said to be adverse possession and that it was a 3 permissive possession. However, on merits of the case, the Revenue Appellate Authority remanded the matter to the Court of SDO. The Revenue Board could not have decreed the suit of the plaintiff-respondent in an appeal preferred by the defendant-petitioner because the plaintiff-respondents neither filed any appeal against the judgment of the Revenue Appellate Authority, nor did they file any cross examination in the appeal of the petitioner. It was argued that the Revenue Board on its own made out of new case made analysis of the documents and recorded a finding that the land mortgaged with the petitioner redeemed by operation of the law contained in Section 43(4) of the Rajasthan Tenancy Act, 1955. It was argued that though in the concluding part of the judgment the Revenue Board has mentioned that the appeal of the petitioner stands allowed, but in substance, it was not only rejection of the claim of the petitioner but also acceptance of the revenue suit filed by the respondents. The Revenue Board has committed a gross illegality in interfering 4 with the order passed by the Revenue Appellate Authority. It is therefore prayed that the impugned order be set aside. Shri Rajendra Dixit, learned counsel for the respondents opposed the writ petition and argued that the Board of Revenue acted well within its jurisdiction in deciding the suit filed by the respondents. It is argued that when the entire material was available on record and when it was proved even from the findings recorded by the SDO that the land in dispute was mortgaged with the petitioner, the Board did not commit any illegality in decreeing the suit on the basis of automatic redemption of land by operation of law contained in Section 43(4) of the Act. It was argued that as a result of the aforesaid redemption, the name of the plaintiff respondent was already entered in jamabandi of Svt. 2044 to 2048 and therefore illegal encroachment made by the petitioner on the said land in Svt. 2033 was wholly justified. The suit, in any case, has rightly been decreed. I have given my thoughtful consideration 5 to the arguments advanced by learned counsel for the parties and perused the order passed by the Board. It is indeed surprising that while the Board has decided the matter against the petitioner in his own appeal, in the concluding part of the judgment, what is recorded is that the appeal is allowed and the order passed by the SDO and that of the Revenue Appellate Authority are set aside and the suit of the plaintiff-respondent is decreed. And then this has been done by the Board, even though there was no appeal filed against the judgment of the Revenue Appellate Authority by the plaintiff respondents, nor did they filed the cross examination in the appeal preferred by the petitioner. The Revenue Appellate Authority had merely remanded the matter to the SDO reversing its finding on the question of adverse possession of the petitioner and holding that the possession of the petitioner in view of the material available on record was merely a permissive possession. The Revenue Appellate Authority 6 remanded the matter because satisfactory finding on the question as to whether or not the land in dispute was mortgaged by the predecessor-in-title of the plaintiff but those of the defendants was required to be obtained. The Board having itself decided the suit, the necessity of decision by the SDO of the suit on remand, thus stood obviated. In the facts of the case, the approach taken by the Board cannot be justified. The judgment passed by the Board of Revenue dated 23.6.2000 is therefore set aside and the judgment of the Revenue Appellate Authority dated 28.2.1995 however is upheld and the matter shall be decided afresh by the learned SDO as per the order of the Revenue Appellate Authority dated 28.2.1995 enabling both the parties to produce their evidence in accordance with law. The writ petition is accordingly allowed in part with no order as to costs. (MOHAMMAD RAFIQ), J. RS/