Rajasthan High Court
Ramdeva vs Devkishan Balai Andors on 19 December, 2023
Bench: Manindra Mohan Shrivastava, Shubha Mehta
[2023:RJ-JP:38766-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Special Appeal (Writ) No. 1818/2014
In
S.B. Civil Writ Petition No.9322/2014
Ramdeva S/o Modu Lal, R/o Village Naya Gaon, Tehsil Keshavari
Patan, District Bundi.
----Appellant
Versus
1. State Of Rajasthan through the Tehsildar, Keshavrai Patan,
District Bundi.
2. Dev Kishan S/o Ram Dayal, R/o Village Naya Gaon, Tehsil
Keshavari Patan, District Bundi.
3. Rampal S/o Ram Dayal, R/o Village Naya Gaon, Tehsil
Keshavari Patan, District Bundi.
----Respondents
Connected With
D.B. Civil Special Appeal (Writ) No. 1817/2014
In
S.B. Civil Writ Petition No.21350/2013
Ramdeva S/o Modu Lal, R/o Village Naya Gaon, Tehsil Keshavrai
Patan, District Bundi.
----Appellants
Versus
1. Sukhdev Son of Modu Balai, Aged about 38 Years
2. Smt. Chhoti Wife Of Modu Balai (Since Deceased),
Both Residents Of Village Naya Gaon, Tehsil
Keshoraipatan, District Bundi.
3. Board Of Revenue For Rajasthan, Ajmer Through Its
Registrar.
4. Revenue Appellate Authority, Kota.
5. Sub Divisional Officer, Keshoraipatan.
6. State Of Rajasthan, Through Tehsildar, Keshoraipatan,
District Bundi.
----Respondents
[2023:RJ-JP:38766-DB] (2 of 19) [SAW-1818/2014]
D.B. Civil Special Appeal (Writ) No. 1819/2014
In
S.B. Civil Writ Petition No.21349/2013
Ramdeva S/o Modu Lal, R/o Village Naya Gaon, Tehsil Keshavrai
Patan, District Bundi.
----Appellants
Versus
1. Laxmi Narayan S/o Nainaga Balai,
2. Kailash Bai W/o Motilal, Aged About 55 Years,
3. Satya Narayan S/o Motilal, Aged About 35 Years,
4. Ram Prasad S/o Motilal,
All Residents Of Village Naya Gaon, Tehsil Keshoraipatan,
District Bundi.
5. Board Of Revenue For Rajasthan, Ajmer Through Its
Registrar.
6. Revenue Appellate Authority, Kota.
7. Sub-Divisional Officer, Keshoraipatan
8. State Of Rajasthan, Through Tehsildar, Keshoraipatan,
District Bundi.
9. Smt. Sushila Bai Wife Of Chittarlal, Resident Of Jhakhmund,
Tehsil Talera, Distt. Bundi.
10. Smt. Kesar Bai Wife Of Kalulal Regar, Resident Of
Jhakhmund, Tehsil Talera, Distt. Bundi.
----Respondents
D.B. Civil Special Appeal (Writ) No. 1820/2014
In
S.B. Civil Writ Petition No.21347/2013
Ramdeva S/o Modu Lal, R/o Village Naya Gaon, Tehsil Keshavrai
Patan, District Bundi.
----Appellants
Versus
1. Gopal S/o Gordhan Harijan, Aged about 35 years,
2. Kalu S/o Gordhan Harijan, Aged About 32 Years,
3. Radhey Shyam S/o Gordhan Harijan, aged about 38 years
4. Smt. Kamla W/o Gordhan,
5. Smt. Munni Bai Wife Of Mahaveer,
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6. Deepak S/o Mahaveer, Aged About 28 Years,
7. Vikas S/o Mahaveer, Aged About 18 Years,
All Residents Of Village Naya Gaon, Tehsil Keshoraipatan,
District Bundi.
8. Board Of Revenue For Rajasthan, Ajmer Through Its
Registrar.
9. Revenue Appellate Authority, Kota.
10. Sub-Divisional Officer, Keshoraipatan
11. State Of Rajasthan, Through Tehsildar, Keshoraipatan,
District Bundi.
12. Rajesh Kumar S/o Pooranmal, Resident Of Chhota Sogariya,
Ramdev Ji Ke Mandir Ke Samney Station Kota, Tehsil
Ladpur, Distt. Kota.
13. Mamta Wife Of Rajesh Kumar Bairwa, Resident Of Chhota
Sogairya, Ramdev Ji Ke Mandir Ke Samney Station Kota,
Tehsil Ladpura, Distt. Kota.
14. Raju Bai W/o Prabhu Lal Bairwa, R/o 338, Ramdev Ji Ka
Mandir, Village Chhota Sogariya, Tehsil Ladpura, District
Kota.
----Respondents
D.B. Civil Special Appeal (Writ) No. 1821/2014
In
S.B. Civil Writ Petition No.21348/2013
Ramdeva S/o Modu Lal, R/o Village Naya Gaon, Tehsil Keshavari
Patan, District Bundi.
----Appellant
Versus
1. Kalyan Lal S/o Madho Balai aged about 50 years,
2. Chhitar Lal S/o Madho Balai aged about 45 years.
Both residents of Village Naya Gaon, Tehsil Keshoraipatan,
District Bundi.
3. Board Of Revenue For Rajasthan, Ajmer Through Its
Registrar.
4. Revenue Appellate Authority, Kota.
5. Sub Divisional Officer, Keshoraipatan.
6. State Of Rajasthan Through The Tehsildar Keshoraipatan,
District Bundi.
----Respondents
[2023:RJ-JP:38766-DB] (4 of 19) [SAW-1818/2014]
D.B. Civil Special Appeal (Writ) No. 1822/2014
In
S.B. Civil Writ Petition No.21230/2013
Ramdeva S/o Modu Lal, R/o Village Naya Gaon, Tehsil Keshavari
Patan, District Bundi.
----Appellant
Versus
1. Devkishan Balai S/o Rampal aged about 35 years, R/o
Village Naya Gaon, Tehsil Keshoraipatan, District Bundi.
2. Board Of Revenue For Rajasthan, Ajmer Through Its
Registrar.
3. Revenue Appellate Authority, Kota.
4. Sub Divisional Officer, Keshoraipatan.
5. State Of Rajasthan Through The Tehsildar Keshoraipatan,
District Bundi.
----Respondents
D.B. Civil Special Appeal (Writ) No. 1823/2014
In
S.B. Civil Writ Petition No.21057/2013
Ramdeva S/o Modu Lal, Village Naya Gaon, Tehsil Keshavari Patan,
District Bundi.
----Appellant
Versus
1. Ram Dayal Nai S/o Kishanlal, aged about 56 years, R/o
Village Naya Gaon, Tehsil Keshoraipatan, District Bundi.
2. Board Of Revenue For Rajasthan, Ajmer Through Its
Registrar.
3. Revenue Appellate Authority, Kota.
4. Sub Divisional Officer, Keshoraipatan.
5. State Of Rajasthan Through The Tehsildar Keshoraipatan,
District Bundi.
----Respondents
For Appellant(s) : Mr. Sanjay Mehrish, Advocate with Mr.
Rakesh Saini Advocate.
For Respondent(s) : Mr. Anil Mehta, Additional Advocate
General with Mr. Yashodhar Pandey
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Advocate & Ms. Amaru Vishnoi
Advocate.
Mr. N.K. Maloo, Senior Advocate with
Mr. Pratyush Sharma, Advocate & Mr.
V.K. Tamoliya Advocate
Mr. Nitin Kumar Sharma Advocate with
Mr. Pankaj Sharma Advocate.
HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
HON'BLE MRS. JUSTICE SHUBHA MEHTA
Judgment
19/12/2023
1. This common order shall govern the disposal of all the appeals
as they arise out of order dated 13.10.2014 passed by the learned
Single Judge in writ petitions filed by the State as well as allottees.
2. For convenience, D.B. Civil Special Appeal (Writ) No.1818/2014
(Ramdeva S/o Modu Lal Versus State Of Rajasthan through The
Tehsildar, Keshavrai Patan, District Bundi & Others) is being taken as
the lead case.
3. The Writ petitions were filed by the State and the allottees
challenging the order dated 30.10.2013 passed by the Board of
Revenue on a revision petition preferred by the State Government.
3.1. The factual matrix of the case giving rise to the present batch
of appeals in the matter of dispute between Appellant-Ramdeva on
one hand and the State and allottees on the other hand are that the
Ceiling proceedings were initiated under Rajasthan Tenancy Act,
1955 against one Modu Lal (Father of Ramdeva), which culminated
in an order dated 29.05.1975 passed by the Assistant Collector,
Bundi, declaring 137 Bigha and 8 Biswa of land held by Modu Lal, to
be in excess of the Ceiling limit. Modu Lal challenged the order
before the Appellate Authority, though remained unsuccessful as the
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Revenue Appellate Authority dismissed the appeal. Aggrieved by the
order passed by the Revenue Appellate Authority, Modu Lal preferred
second appeal before the Board of Revenue, which too was
dismissed vide order dated 03.08.1976. Thereafter, Modu Lal did not
challenge the aforesaid order and, thus, the Ceiling proceedings
attained finality. In 1977, the surplus land, which vested in the State
by operation of law, were allotted to several landless persons.
Allotment letters were issued, land records were mutated in favour
of the landless allottees in 1977. In this manner, not only the Ceiling
proceedings attained finality but the allottees also started cultivating
land allotted to them by the State since then.
4. In the year 1992, Ramdeva S/o Modu Lal filed suit No.54/1992
before the Revenue Court seeking declaration and partition against
Modu Lal. The allottees were also made parties. The suit was filed on
the pleadings that when Ceiling case was initiated and decided, he
was a co-sharer as the land was ancestral one. As he was minor, his
interest ought to be protected by his father while contesting the case
but that was not done. The revenue suit was, however, dismissed by
the Sub Divisional Officer on 07.01.2003 on the ground that the
order passed in Ceiling proceedings could not be made a subject
matter of a suit. Thereafter, in 2003, Ramdeva preferred an appeal
against original order dated 29.05.1975 passed in the Ceiling
proceedings by the Assistant Collector, Bundi. The Revenue Appellate
Authority allowed the appeal vide order dated 20.08.2003. The
Revenue Appellate Authority decided the appeal in favour of
Ramdeva though it did not set aside order dated 29.05.1975 passed
by the Assistant Collector, Bundi but remanded the matter with a
direction to decide the issue of notional share of Ramdeva.
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Aggrieved by the said order, State preferred revision petition before
the Board of Revenue. Ramdeva, aggrieved partly with the order to
the extent it remanded the case for consideration, also preferred
revision petition before the Board of Revenue.
4.1. Vide order dated 11.06.2008, the Board of Revenue allowed
revision petition of the State but dismissed the revision petition filed
by Ramdeva on the ground that the Ceiling proceedings have
already attained finality in the past, appeal against order dated
29.05.1975 filed by Ramdeva was not only hopelessly barred by
limitation but also barred by res judicata. Thereafter, Ramdeva filed
a Writ Petition No.8013/2008 against order dated 11.06.2008
passed by the Board of Revenue to the extent it dismissed his
Revision Petition No.1936/2006 though no writ petition was filed
against the order of the Board of Revenue allowing State's revision.
The writ petition was disposed off giving liberty to file review petition
before the Board of Revenue. In the second round of litigation, the
review petition filed by Ramdeva was allowed. Revision Petitions
were reheard. Revision of State was dismissed, whereas, revision of
Ramdeva was allowed. The Board of Revenue also reviewed its
earlier order passed qua Modu Lal on 03.08.1976. It appears that
though two allottees Ramdayal S/o Kishanlal and Devkisan S/o
Rampal filed applications under Order 1 Rule 10 CPC for being
impleaded in revision petition, those applications were not decided,
kept pending and were finally rejected while deciding the revision
petition.
4.2. Aggrieved by the aforesaid order of the Board of Revenue
passed on 20.10.2013, the State Government filed Writ Petition
No.9322/2014 and other writ petitions were filed by the allottees. All
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those petitions were heard and by impugned order, the writ petitions
were allowed, order of the Board of Revenue was set aside by the
learned Single Judge, giving rise to these appeals filed by Ramdeva.
5. Learned Single Judge held that the appeal filed in 2003 by
Ramdeva against the order dated 29.05.1975 of the Assistant
Collector, Bundi suffered from inordinate and unexplained delay and
is based on false statement. It was found that while filing appeal in
the year 2003, Ramdeva claimed that the order passed in 1975
came to his notice in 2003, whereafter the appeal was immediately
filed, whereas, Ramdeva had filed revenue suit way back in the year
1992 and he was fully aware of the Ceiling proceedings and the
orders passed. Therefore, the cause shown for condonation of delay
was false to the knowledge of Ramdeva. The Board of Revenue could
not have casually condoned the long delay of 28 years. It was also
noticed that it is not merely the State but interest of large number of
allottees were also adversely affected because they were allotted
land, which were declared surplus in the year 1975. Learned Single
Judge also held that the case against Modu Lal had attained finality
and, therefore, the Board of Revenue could not have reconsidered
the merits of the case.
6. Learned counsel appearing for Ramdeva in all the appeals, would
submit that when Ceiling proceedings against Modu Lal were
initiated in the year 1975, Ramdeva was a minor but he had a share
in the ancestral property. The right of Ramdeva in those proceedings
could not be taken away without impleading him as a party. The
order was passed in the year 1977 behind his back. Therefore,
merely because Modu Lal lost in all the proceedings upto the Board
of Revenue and did not challenge the order passed by the Board of
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Revenue, it would not foreclose the right of Ramdeva. He would
further submit that Modu Lal had initially filed a revenue suit for
partition in which decree was obtained by his father with regard to
partition of ancestral property, wherein preliminary decree was
passed for the purpose of partition. The preliminary decree was
made final on 13.07.1972. In Ceiling proceedings, it was nowhere
considered that there was already a partition of the holdings and
illegally entire land was taken as belonging to one unit of Modu Lal
leading into passing of an illegal order declaring 137 Bigha and 16
Biswa land as surplus. He would submit that after Ramdeva attained
the age of majority and when he came to know about the illegal
orders that were passed in Ceiling proceedings affirmed upto Board
of Revenue, he filed revenue suit in the year 1992, which was held
not maintainable. It was only thereafter that he preferred appeal
against order dated 29.05.1975 passed in Ceiling proceedings. In
this exceptional background and circumstances, the Revenue
Appellate Authority had rightly passed the order for consideration
afresh on the aspect of division of land instead of treating the land
of 137 Bigha and 16 Biswa as one Unit. The State's revision was
illegally allowed and that the appeal filed by Ramdeva was dismissed
without proper consideration of the merits of the case. After seeking
liberty from the Writ Court, review was filed and the Board of
Revenue rightly set aside earlier proceedings, dismissing State's
revision, taking into consideration that initial order declaring land as
surplus was bad in law which ought not to have been interfered with
by the learned Single Judge. He would submit that on the aspect of
delay, the merit was required to be examined first rather than
holding dismissal of appeal justified as barred by limitation. He
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would further submit that the delay stood explained from the
circumstances of the case. In support of his submissions, learned
counsel for the appellants has placed reliance upon the decision of
the Hon'ble Supreme Court in the cases of Madras Port Trust
Versus Hymanshu International By Its Proprietor V.
Venkatadri (Dead) By L.R.s, (1979) 4 Supreme Court Cases
176, Union of India Versus Giani, (2011) 11 Supreme Court
Cases 480, B.T. Purushothama Rai Versus K.G. Uthaya and
Others, (2011) 14 Supreme Court Cases 86, the judgment of
this Court in the cases of Ram Pratap & 3 Others Versus State of
Rajasthan & Others, 1989 (36) Rajasthan Revenue Decisions
127, Jugal Kishore & Others Versus S.D.O., Baran & Others,
1988 (2) Rajasthan Law Reporter 595, the judgment of the
Single Bench of this Court in the cases of Bhoj Raj Versus S.D.O.
& Others, 1985 (4) Rajasthan Law Reporter 557, Amb Singh
& Another Versus S.D.O., Bhinmal & Others, 1986 (5)
Rajasthan Law Reporter 359 and the decision of the Rajasthan
Board of Revenue in the case of State of Rajasthan Versus Ram
Kalyan, 1979 Rajasthan Revenue Decisions NUC 55 Page 31.
7. Per-contra, learned counsel appearing for the State would submit
that Ceiling proceedings were initiated against Modu Lal and
Ramdeva being his son, was duly represented by his father Modu
Lal. He would submit that, in-fact, the Modu Lal raised a ground that
part of the property was ancestral one and, therefore, his son
Ramdeva also had a share in it, but the same was not accepted on
the basis of the enquiry made in the Ceiling proceedings and the
plea of partition was rejected. He would submit that Modu Lal filed
appeal, which was dismissed and, thereafter, second appeal was
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filed before the Board of Revenue, which was also dismissed in the
year 1976. The matter attained finality in 1976. Modu Lal never
challenged the order. Ramdeva attained the age of majority long
back but he also never challenged the same. Lands which were
declared surplus were allotted to large number of allottees and they
remained in cultivating possession for a decades when suit was filed
by Ramdeva in the year 1992, which was held not maintainable. The
pleadings in the suit are admission on the part of Ramdeva that he
was in full notice and knowledge of the Ceiling proceedings and the
orders passed. It is only when the suit was dismissed as not
maintainable, that an appeal against original order passed way back
in 1975 was filed in the year 2003 on a false statement that
Ramdeva came to know about the order passed in 1975 only
recently. This false plea was ignored and an order was passed by the
Revenue Appellate Authority, which was challenged by filing revision
by the State. The revision filed by the State was duly and properly
appreciated by the Board of Revenue. However, the Board of
Revenue later on, exceeded its jurisdiction in reviewing merits of the
case in the garb of review of an order, which was passed way back in
the year 1975 and passed the order which was rightly set aside by
the learned Single Judge.
8. Learned Senior Counsel appearing for private
Respondents/allottees in connected appeals would submit that the
pleadings made in the revenue suit filed by Ramdeva way back in
the year 1992 are admission of fact that Ramdeva had full notice
and knowledge of order passed against his father Modu Lal in the
year 1975. As per records and the stand taken by Ramdeva himself,
he was aged 5 years when the order was passed in the year 1975,
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meaning thereby that he attained the age of majority in around
1988-89. Even thereafter, he did not initiate any proceeding and
filed suit only in the year 1992 and appeal in 2003. It is also
submitted by learned Senior Counsel that apart from being
hopelessly barred by limitation, appeal filed by Ramdeva before the
Revenue Appellate Authority, challenging order dated 29.05.1975
was not at all maintainable as that order was already challenged by
Modu Lal earlier by filing an appeal, which was dismissed way back
on 26.08.1975 and second appeal was also dismissed by the Board
of Revenue on 03.08.1976. Thus, the order dated 29.05.1975 had
already merged in the appellate order passed subsequently and,
therefore, appeal filed by Ramdeva was not maintainable under the
law.
8.1. It is further contended that false plea was taken to seek
condonation of delay in filing appeal before the Original Appellate
Authority that Ramdeva came to know about the order dated
29.05.1975 only in the year 2003. In the suit filed by him way back
in the year 1992, he himself had pleaded regarding Ceiling
proceedings and the orders passed therein. Thus, condonation was
sought on false plea, which was duly appreciated by the learned
Single Judge. It is also submitted that the appeal was not
maintainable as all those persons who were subsequently allotted
land and were in cultivating possession under the allotment letters
issued in their favour long back in the year 1977, though necessary
parties, were not impleaded. In-fact, their applications before the
Board of Revenue remained pending and were dismissed only while
passing final order. On merits also, it is argued that it is not for the
first time that the plea regarding there being other share holders
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was taken by Ramdeva. Modu Lal had taken this ground before the
Ceiling Authority and even in first & second appeals filed by him. The
orders passed by the First Appellate Authority and Second Appellate
Authority in first round of litigation initiated at the instance of Modu
Lal were binding on his son Ramdeva because his interest was also
duly represented by his father Modu Lal. In support is his
submissions, learned Senior Counsel for private
respondents/allottees has placed reliance upon the decision of the
Hon'ble Supreme Court in the cases of Collector of Customs,
Calcutta Versus East India Commercial Co. Ltd., Calcutta and
Others, AIR 1963 Supreme Court 1124 (V 50 C 170), S.S.
Rathore Versus State of Madhya Pradesh, AIR 1990 Supreme
Court 10, Pundlik Jalam Patil (Dead) By LRs. Versus
Executive Engineer, Jalgaon Medium Project and Another,
(2008) 17 Supreme Court Cases 448, Oriental Aroma
Chemical Industries Limited Versus Gujarat industrial
Development Corporation and Another, (2010) 5 Supreme
Court Cases 459 & Chandi Prasad and Others Versus Jagdish
Prasad and Others, (2004) 8 Supreme Court Cases 724, the
Judgment of this Court in the cases of Smt. Roop Kanwar D/o
Late Sh. Udai Singh Versus Sohan Singh S/o Late Sh. Udai
Singh and Others, 2013 (4) Western Law Cases (Raj.) 462 &
Sangam Spinners Mandap Bhilwara (M/s.) & Another Versus
Surendra Singh & Another, 2014 (3) DNJ (Raj.) 1129.
9. The submission of learned counsel for the parties have been
considered and record perused.
10. Facts floating on the surface of the case are that the Ceiling
proceedings were initiated against Modu Lal. In those proceedings,
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Ceiling Authority, after enquiry, arrived at conclusion of fact that
land ad-measuring 197 Bigha and 16 Biswa belong to Modu Lal and
Modu Lal and his family dependent upon him constitute one unit. A
perusal of order dated 29.05.1975 passed by the Ceiling Authority
would show that the plea taken by Modu Lal regarding there being
other share holders and, therefore, entire land could not be taken as
one unit for the purposes of Ceiling proceedings was rejected. Vide
order dated 29.05.1975, 137 Bigha and 16 Biswa of land was
declared surplus. Modu Lal preferred an appeal before the First
Appellate Authority, which was dismissed on 26.08.1975. Thereafter,
second appeal preferred before the Board of Revenue, which too was
dismissed on 03.08.1976. There is nothing on record to establish
that Modu Lal challenged the order of Board of Revenue before the
Writ Court or in any other proceedings. The order, thus, attained
finality. The record also speaks that the land was subjected to
allotment in the year 1977 and number of allottees (appellants in
other connected appeals) were allotted land through allotment
letters. Those allotment letters, Mutation, Jamabandi record and
challan have also been placed on record. It would thus, be seen that
those allottees were allotted surplus land and since then they had
remained in cultivating possession of the land.
11. It was only in 1992 that for the first time, Ramdeva had filed a
revenue suit seeking declaration and partition against Modu Lal. The
allottees were also made party in that suit. The pleadings in the suit
show that it was the case of Ramdeva that he was minor when
Ceiling Case was initiated and decided. The suit was, however,
dismissed on 07.01.2003 on the ground that Ceiling proceedings
could not be a subject matter of revenue suit. Thereafter, that order
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dated 29.05.1975 which otherwise had attained finality, was again
sought to be challenged by Ramdeva. Ramdeva came out with the
case that he came to know about the order dated 29.05.1975 only in
the year 2003. This was a calculated false plea. In the suit, which he
had filed in the year 1992, he himself disclosed through his
pleadings that the orders passed in Ceiling proceedings against his
father Modu Lal were within his notice and knowledge. Thus, delay
of 28 years in filing appeal against an order was sought to be
explained on false plea.
12. In Pundlik Jalam Patil (Dead) By LRs. Versus Executive
Engineer, Jalgaon Medium Project and Another (Supra) &
Oriental Aroma Chemical Industries Limited Versus Gujarat
industrial Development Corporation and Another (Supra),
taking a false plea to explain delay has been deprecated and it has
been held that delay could not be justified on false plea. Similar is
the view taken in Smt. Roop Kanwar D/o Late Sh. Udai Singh
Versus Sohan Singh S/o Late Sh. Udai Singh and Others
(Supra) & Sangam Spinners Mandap Bhilwara (M/s.) &
Another Versus Surendra Singh & Another (Supra).
13. That apart, the order dated 29.05.1975 passed in Ceiling
proceedings against Modu Lal, having been assailed and affirmed in
first and second appeal before the First Appellate Authority and
Second Appellate Authority (Board of Revenue), had merged in
appellate orders. Therefore, the order could not be re-assailed by
way of another round of litigation by filing a fresh appeal against
order dated 29.05.1975, this time at the instance of Ramdeva.
14. The principle of merger has been explained in several decisions
of the Hon'ble Supreme Court.
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15. In the case of Collector of Customs, Calcutta Versus East
India Commercial Co. Ltd., Calcutta and Others (Supra), the
principle was explained thus:-
"The question therefore turns on whether the order of the
original authority becomes merged in the order of the
appellate authority even where the appellate authority
merely dismisses the appeal without any modification of the
order of the original authority. It is obvious that when an
appeal is made, the appellate authority can do one of three
things, namely, (i) it may reverse the order under appeal,
(ii) it may modify that order, and (iii) it may merely dismiss
the appeal and thus confirm the order without any
modification. It is not disputed that in the first two cases
where the order of the original authority is either reversed
or modified it is the order of the appellate authority which is
the operative order and if the High Court has no jurisdiction
to issue a writ to the appellate authority it cannot issue a
writ to the original authority. The question therefore is
whether there is any difference between these two cases
and the third case where the appellate authority dismisses
the appeal and thus confirms the order of the original
authority. It seems to us that on principle it is difficult to
draw a distinction between the first two kinds of orders
passed by the appellate authority and the third kind of order
passed by it. In all these three cases after the appellate
authority has disposed of the appeal, the operative order is
the order of the appellate authority whether it has reversed
the original order or modified it or confirmed it.
It is this principle, viz. that the appellate order is the
operative order after the appeal is disposed of, which is in
our opinion the basis of the rule that the decree of the lower
court merges in the decree of the appellate court, and on
the same principle it would not be incorrect to say that the
order of the original authority is merged in the order of the
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appellate authority whatsoever its decision-whether of
reversal or modification or mere confirmation."
16. In another constitution Bench Judgment of the Hon'ble Supreme
Court in the case of S.S. Rathore Versus State of Madhya
Pradesh (Supra), it has been held that the distinction made
between courts and tribunals as regards applicability of doctrine of
merger, is without any legal justification.
17. In Chandi Prasad and Others Versus Jagdish Prasad and
Others (Supra), principle of merger was explained as below:-
"10. Where a statutory appeal is provided for, subject, of course
to the restrictions which may be imposed, it is a continuation of
suit. It is also not in dispute that when a higher forum entertains
an appeal and passes an order on merit, the doctrine of merger
applies.
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22. When an appeal is prescribed under a statute and the
appellate forum is invoked and entertained, for all intent and
purport, the suit continues.
23. The doctrine of merger is based on the principles of propriety
in the hierarchy of justice-delivery system. The doctrine of
merger does not make a distinction between an order of reversal,
modification or an order of confirmation passed by the appellate
authority. The said doctrine postulates that there cannot be more
than one operative decree governing the same subject-matter at
a given point of time.
24. It is trite that when an Appellate Court passes a decree, the
decree of the trial court merges with the decree of the Appellate
Court and even if and subject to any modification that may be
made in the appellate decree, the decree of the Appellate Court
supersedes the decree of the trial court. In other words, merger
of a decree takes place irrespective of the fact as to whether the
Appellate Court affirms, modifies or reverses the decree passed
[2023:RJ-JP:38766-DB] (18 of 19) [SAW-1818/2014]
by the trial court. When a special leave petition is dismissed
summarily, doctrine of merger does not apply but when an appeal
is dismissed, it does."
18. In the light of aforesaid settled legal position, the order dated
29.05.1975 passed by the Assistant Collector, Bundi in original
Ceiling proceedings having merged in the orders passed in appeals
in First and, thereafter, in Second Appellate proceedings, no appeal
against that order could again be filed but the remedy of Ramdeva
lie elsewhere.
19. It is also worth noticing that when the Board of Revenue allowed
the revision filed by the State and dismissed the appeal filed by
Ramdeva vide its order dated 11.06.2008, Ramdeva filed Writ
Petition No.8013/2008 only against order passed in his Revision
Petition No.1936/2006, but did not file any Writ Petition nor
challenged the order by which the Revision Petition No.704/2004 of
the State was allowed. Therefore, the order passed in revision
petition filed by the State attained finality. True it is that appellant-
Ramdeva was given liberty to file review petition vide order dated
21.08.2008 passed in Writ Petition No.8013/2008, the legal position
is that the order passed in Revision Petition No.704/2004 of the
State attained finality. Therefore, for this reason alone, the order
passed by the Board of Revenue on 20.10.2013 in the second round
is unsustainable in law.
20. Last but not the least, we find that there were number of
allottees who were allotted land which were declared surplus in the
year 1975 and affirmed upto the Board of Revenue. These
allotments were made way back in the year 1977. All those persons
have claimed to be in cultivating possession after allotment made in
[2023:RJ-JP:38766-DB] (19 of 19) [SAW-1818/2014]
their favour and, therefore, names entered in revenue record.
Second round of proceedings initiated by Ramdeva without
impleading those persons as parties, were not maintainable for want
of non-joinder of necessary party. We have noticed that when
Ramdeva had filed revenue suit in 1992, he had made allottees also
as party, but when he filed appeal, he did not implead allottees as
parties.
21. In view of the above considerations, we do not find any good
ground to interfere with the order passed by the learned Single
Judge.
22. All these appeals are, accordingly, dismissed.
23. No order as to costs.
24. A copy of this order be placed on record of each connected
appeal.
(SHUBHA MEHTA),J (MANINDRA MOHAN SHRIVASTAVA),ACTING CJ
SANJAY KUMAWAT-49-55
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