Rajasthan High Court - Jodhpur
Bharat Singh vs Bhanwar Singh on 12 January, 2023
Bench: Sandeep Mehta, Kuldeep Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 867/2022
1. Bharat Singh S/o Shri Sawai Singh, Aged About 46 Years,
2. Nandu Singh S/o Shri Sawai Singh, Aged About 44 Years,
3. Prahlad Singh S/o Shri Sawai Singh, Aged About 41
Years,
4. Ugam Kanwar D/o Shri Sawai Singh, Aged About 50
Years,
5. Dwarka D/o Shri Sawai Singh, Aged About 48 Years,
6. Kunan Kanwar W/o Late Shri Sawai Singh, Aged About 45
Years,
All By Caste Rajput, Resident Of Bhainsli, Tehsil Rajgarh,
District Churu (Rajasthan).
----Appellants
Versus
1. Bhanwar Singh S/o Shri Nanu Singh,
2. Jaipal Singh S/o Shri Nanu Singh,
3. Prabhu Singh S/o Shri Nanu Singh,
4. Sajjan Kanwar W/o Late Shri Nanu Singh,
All respondent No.1 to 4 By Caste Rajput, Resident Of
Bhainsli, Tehsil Rajgarh, District Churu (Rajasthan).
5. The State Of Rajasthan, Through Tehsildar (Revenue),
Rajgarh, District Churu (Rajasthan).
----Respondents
For Appellant(s) : Dr. RDSS Kharlia.
For Respondent(s) : Mr. Varun Goyal.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order
12/01/2023
The instant intra court appeal has been preferred by the
appellants herein for assailing the Judgment/ Final Order dated
(2 of 3) [SAW-867/2022]
05.07.2022 passed by the learned Single Bench whereby, the writ
petition filed by the appellants writ petitioners against the
judgment dated 25.04.2022 passed by the Board of Revenue, was
dismissed and the order remand made by the Board of Revenue,
was affirmed.
Learned counsel Dr. Kharlia representing the appellants and
Shri Varun Goyal, learned court representing the respondents,
submitted that the respondents have also filed a writ petition
(No.7332/2022) for assailing the very same judgment of the
Board of Revenue which is still pending consideration. The finding
recorded by the learned Board of Revenue in the order dated
25.04.2022 is apparently erroneous. It is submitted that neither of
the parties is aggrieved of the preliminary decree dated
29.01.2019 which was not even under challenge. Yet, the Board of
Revenue set aside the said preliminary decree without it having
been challenged. Learned counsel thus urged that the impugned
order passed by the learned Single Bench should be set aside and
the matter should be remanded back for fresh consideration
alongwith the writ petition filed by the private respondents
(No.7332/2022).
We have heard and considered the submissions advanced at
bar and have gone through the impugned order dated 05.07.2022
passed by the learned Single Bench as well as the order dated
25.04.2022 passed by the Board of Revenue.
It is important to note that in the suit for partition filed
before the Revenue court, preliminary decree dated 29.01.2019
was passed and the parties were held entitled to claim partition of
the joint family land. Both the parties were agreeable to the
preliminary decree, however, when the final decree was to be
(3 of 3) [SAW-867/2022]
issued, a dispute arose regarding the right to way between the
agricultural lands of the respective claimants. Despite that, the
Board of Revenue, without the preliminary decree having been
challenged, quashed the same and remanded the matter back to
the second appellate court.
In view of the above, we are of the view that the learned
Single Judge was not justified in dismissing the writ petition
preferred by the petitioners more so when the writ petition
preferred by the private respondents in relation to the counter
claim arising out of the same litigation is pending consideration.
As a consequence, the impugned order dated 05.07.2022
passed by the learned Single Bench is set aside. The matter is
remanded to the learned Single Bench for fresh consideration of
the writ petition on merits alongwith Writ Petition No.7332/2022
(Bhanwar Singh & Ors. vs. State of Rajasthan & Ors.) preferred by
the private respondents.
The special appeal is disposed of accordingly.
(KULDEEP MATHUR),J (SANDEEP MEHTA),J
52-Tikam/-
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