// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN 1. S.B. Civil Writ Petition No.5677/2004 Shiv Lal S/o Shri Chiranji Versus The Board of Revenue Rajasthan, Ajmer and Others AND 2. S.B. Civil Writ Petition No.5731/2004 Vankhandi S/o Shri Mangal Versus The Board of Revenue Rajasthan, Ajmer and Others Date of Order ::: 13.05.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Presence in both the Writ Petitions:- Shri Ganesh Meena, Counsel for petitioner Shri M.C. Gupta, Addl. Govt. Counsel for respondents State #### By the Court:- Heard learned counsel for the parties. The dispute, in both these writ petitions, relates to a public way in Khasra No.1032, therefore, both the writ petitions heard together and are being disposed of by this common order. Shiv Lal, petitioner in Writ Petition No.5677/2004, and Vankhandi, petitioner in Writ Petition No.5731/2004, instituted two separate suits before the Assistant Collector, Nagar, under Sections 88, 89 and 188 of the Rajasthan Tenancy Act, 1955, against the District Collector as well as Tehsildar. The other respondents were not impleaded as defendants in the suit. The trial court, vide its judgment and decree dated 30th April, 2001, // 2 // decreed the suit of Shiv Lal and, vide judgment and decree dated 27th September, 2001, decreed the suit of Vankhandi. Being aggrieved with the same, Prahlad, Rishiram, Raman, Bacchuram, Charani, Shivram filed an appeal before the Revenue Appellate Authority challenging the judgment and decree dated 30th April, 2001, whereas the State Government as well as one Shivram S/o Rekhram filed two separate appeals before the Revenue Appellate Authority challenging the judgment and decree dated 27th September, 2001. The Revenue Appellate Authority, vide its judgment and decree dated 23rd November, 2002 dismissed the appeal filed by Prahlad and others, and similarly, by consolidated order, also dismissed appeals filed by the State and Shivram. Thereafter, two separate second appeals were preferred before the Revenue Board – one by Prahlad and others, and another by Shivram S/o Rekhram. The Revenue Board, vide its separate judgment and order dated 11th June, 2004 allowed both the appeals and remitted the matter, for passing fresh decision, to the Court of Assistant Collector, Nagar. The said orders of remand passed in both the appeals have been challenged by the petitioners in these two separate writ petitions. The learned counsel for the petitioners contended that the trial court as well as the first appellate court, both, decided the matter on merits and recorded a finding that the land, in dispute, was of khatedari rights of the petitioners and it was wrongly shown in the public way, therefore, their suit was rightly decreed. The Revenue Board committed an illegality in setting- aside the judgment and decree passed by both the courts below // 3 // and in remanding the matter, therefore, he contended that the order passed by the Revenue Board be set-aside and that of the trial court and the appellate court be restored. The learned Additional Government Counsel, appearing on behalf of the respondents, contended that the plaintiff- petitioners did not implead the contesting respondents No.6 to 11 in Writ Petition No.5677/2004 and the respondent No.6 in Writ Petition No.5731/2004, as defendants in the suit, therefore, when they came to know about passing of the judgment by the trial court, they preferred an appeal before the Revenue Appellate Authority. The Revenue Appellate Authority, instead of remanding the matter to the trial court with a direction to afford an opportunity to the appellant, wrongly dismissed the appeal on merits, therefore, the Revenue Board was fully justified in remanding the matter to the trial court with a direction to afford an opportunity to the respondents and to pass a fresh order in the matter. He, therefore, contended that there is no illegality in the order passed by the Revenue Board and the writ petitions deserve to be dismissed. I have considered the submissions of learned counsel for the parties in the light of reasons assigned by the courts below in their orders. The matter relates to a public way, therefore, the appellants, who preferred appeal before the Revenue Appellate Authority and were villages of the same village, were aggrieved party. The Revenue Board has observed that it was a duty of the first appellate court to remand the matter to the trial court with // 4 // liberty to the appellants before the first appellate court to lead evidence in support of their case and to decide the matter afresh. The Revenue Board has not decided the matter on merits but has simply observed that looking to the controversy involved in both the suits i.e. in respect of public way, it is necessary to afford an opportunity to the appellants before the first appellate court and thereafter to pass a fresh order in the matter. The petitioners are not going to suffer anything and their rights are not going to be prejudiced in remanding the matter by the Revenue Board looking to the facts and circumstances of the present case. I do not find any illegality or perversity in the order passed by the Revenue Board so as to interfere in the same. There is no merit in these writ petitions and the same are accordingly dismissed with no order as to costs. A copy of this order may be sent to the trial court with a direction to proceed with the suit in accordance with the law and as per the directions of the Revenue Board. The petitioners, in both the writ petitions, are directed to appear before the trial court on 8th July, 2008 and till then the interim stay order passed by this Court maintaining the status-quo shall be operative. It will be open for the petitioners to pray for interim stay for subsequent period i.e. during the pendency of the suit before the trial court itself. This order decides two writ petitions, therefore, a copy of this order be placed in second Writ Petition No.5731/2004. (Narendra Kumar Jain) J. //Jaiman// // 5 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Stay Application No.4870/2004 In S.B. Civil Writ Petition No.5677/2004 Shiv Lal S/o Shri Chiranji Versus The Board of Revenue Rajasthan, Ajmer and Others Date of Order ::: 13.05.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Ganesh Meena, Counsel for petitioner Shri M.C. Gupta, Addl. Govt. Counsel for respondents State #### By the Court:- Consequent upon dismissal of the writ petition itself, the stay application, filed therewith, does not survive and the same is also dismissed. (Narendra Kumar Jain) J. //Jaiman// // 6 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Stay Application No.4911/2004 In S.B. Civil Writ Petition No.5731/2004 Vankhandi S/o Shri Mangal Versus The Board of Revenue Rajasthan, Ajmer and Others Date of Order ::: 13.05.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Ganesh Meena, Counsel for petitioner Shri M.C. Gupta, Addl. Govt. Counsel for respondents State #### By the Court:- Consequent upon dismissal of the writ petition itself, the stay application, filed therewith, does not survive and the same is also dismissed. (Narendra Kumar Jain) J. //Jaiman//