Rajasthan High Court - Jodhpur
Sakiya vs Laxman on 28 November, 2022
Bench: Pankaj Mithal, Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 199/2021
Sakiya S/o Hakrna Ji, Aged About 71 Years, By Caste Rajput,
Resident Of Manora, Tehsil And District Sirohi.
----Appellant
Versus
1. Laxman S/o Kuiya, Aged About 55 Years, By Caste Bheel,
Resident Of Manora, Tehsil And District Sirohi.
2. Jawana S/o Kuiya, Aged About 42 Years, Petitioner No.2
To 4 Are Through Their Power Of Attorney Holder Laxman
S/o Kuiya, By Caste Bheel, Resident Of Manora, Tehsil
And District Sirohi.
3. Kali D/o Shri Kuiya, Aged About 28 Years, By Caste Bheel,
Resident Of Manora, Tehsil And District Sirohi
4. Chhagan Bai W/o Late Otiyaji, By Caste Rajput, Resident
Of Manora, Tehsil And District Sirohi.
5. Roop Singh S/o Late Otiyaji, By Caste Rajput, Resident Of
Manora, Tehsil And District Sirohi.
6. Inder Singh S/o Late Otiyaji, By Caste Rajput, Resident Of
Manora, Tehsil And District Sirohi.
7. Ishwar Singh S/o Late Otiyaji, By Caste Rajput, Resident
Of Manora, Tehsil And District Sirohi.
8. Parbat Singh S/o Late Otiyaji, By Caste Rajput, Resident
Of Manora, Tehsil And District Sirohi.
9. State Of Rajasthan, Through Tehsildar, Sirohi.
10. Assistant Collector, Sirohi.
----Respondents
For Appellant(s) : Mr. Moti Singh.
For Respondent(s) : Mr. C.S. Kotwani.
(2 of 4) [SAW-199/2021]
HON'BLE THE CHIEF JUSTICE MR. PANKAJ MITHAL
HON'BLE MR. JUSTICE DINESH MEHTA
Order
28/11/2022
This intra-court appeal has been preferred by the appellant,
Sakiya, under Rule 134 of the Rajasthan High Court Rules, 1952
(for short, 'the Rules') against the judgment and order of the
learned Single Judge dated 28.05.2019 passed on a petition
No.4895 of 2019 preferred under Article 227 of the Constitution of
India.
On the last occasion, a preliminary issue had cropped up as
to whether an intra-court appeal against a judgment and order
passed on a petition under Article 227 of the Constitution of India
arising from the decision of the Board of Revenue would be
maintainable?
Before we proceed to answer the above issue, we may briefly
state the facts, which have given rise to this appeal.
It appears that one Laxman and three others jointly filed a
revenue suit under Sections 88 and 53 of the Rajasthan Tenancy
Act, 1955 before the Assistant Collector, Sirohi seeking declaration
of khatedari as well as partition of the land by metes and bounds.
In the said suit, the appellant herein Sakiya was one of the
defendants but he admitted the contents of the suit by filing his
written statement. The suit was contested by other defendants
No.2 to 5. The suit was decreed by the Assistant Collector vide
judgment and order dated 28.02.2004 declaring the plaintiffs
therein to be khatedars/tenants to the extent of 1/3rd share in
the land. Aggrieved by the aforesaid decision, the defendants
(3 of 4) [SAW-199/2021]
No.2 to 5 of the suit preferred appeal under Section 223 of the Act
before the Revenue Appellate Authority. The appeal was allowed
vide judgment and order dated 17.08.2009 and the judgment and
order passed by the Assistant Collector was set aside. The
plaintiffs, therefore, preferred second appeal under Section 224 of
the Act before the Board of Revenue. In the appeal, the plaintiffs
and the contesting respondents entered into a compromise on
14.01.2019 and requested for the decision of the appeal in terms
of the compromise but the Board of Revenue declined to accept
the said compromise, and dismissed the appeal vide judgment and
order dated 13.03.2019.
It is in the above background, the plaintiffs of the suit
preferred the petition under Article 227 of the Constitution of
India. The petition has been disposed of in terms of the
compromise and thus the order passed by the Board of Revenue
was set aside and that of the Assistant Collector, Sirohi was
restored.
It is in the above circumstances that, when this intra-appeal
was preferred, the question, as referred to earlier, came up for
consideration regarding its maintainability.
In Ramesh Chand Tiwari & Ors. Vs. Board of Revneue & Ors.
[2005 (2) WLC (Raj.) 305], the Full Bench of this Court has held
that against an order passed on a petition under Article 227 of the
Constitution of India, appeal is not maintainable.
In another decision of the Full Bench of this Court in the case
of Mahendra Kumar Jain Vs. Appellate Rent Tribunal, Ajmer [2021
(3) WLC (Raj) 299], it has been held that against an order passed
on a petition under Article 227 of the Constitution of India against
the judgment and order of the Rent Tribunal and Appellate Rent
(4 of 4) [SAW-199/2021]
Tribunal, which have trapping/attributes of the civil courts, though
the orders are amenable to jurisdiction under Article 227 of the
Constitution but the appeal under Rule 134 of the Rules is not
maintainable. The appeal by the appellant Sakiya otherwise also
is not maintainable as he had not contested the suit rather
accepted the claim of the plaintiffs in which case he is not a party
aggrieved.
At this stage, Shri Moti Singh, learned counsel for the
appellant submits that the question of maintainability of the
appeal need not be gone into in this case as it has very wide
repercussions and that he may be permitted to withdraw the
appeal with liberty to file review petition.
Thus, without finally commenting upon the maintainability of
the petition, we dismiss the appeal, as withdrawn/not pressed
with liberty to avail other remedies, may be that of review, as may
be advised to the appellant on the legal side. It will be open for
the appellant to seek condonation of delay in availing the other
remedy and to get the period during which this appeal had
remained pending excluded on the analogy of Section 14 of the
Limitation Act.
(DINESH MEHTA),J (PANKAJ MITHAL),CJ
63-a.asopa/-
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