Rajasthan High Court - Jodhpur

Jepiya vs Digvijay Parmar (2024:Rj-Jd:7993) on 15 February, 2024

Author: Nupur Bhati

Bench: Nupur Bhati

[2024:RJ-JD:7993]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                       AT JODHPUR
                    S.B. Civil Writ Petition No. 1777/2024

1.       Jepiya Sister/o Kistura, aged about 73 years, R/o Virana,
         Tehsil Sayla, District Jalore.
2.       Adiya S/o Kistura, aged about 55 years, R/o Virana, Tehsil
         Sayla, District Jalore.
3.       Badriya S/o Kistura, aged about 61 years, R/o Virana,
         Tehsil Sayla, District Jalore.
4.       Mangiya S/o Kistura, aged about 51 years, R/o Virana,
         Tehsil Sayla, District Jalore.
5.       Motiya S/o Kistura, aged about 57 years, R/o Virana,
         Tehsil Sayla, District Jalore.
                                                                      ----Petitioners
                                       Versus
1.       Digvijay Parmar S/o Ramlal, R/o Revatda, Tehsil Sayla,
         District Jalore.
2.       State of Rajasthan through the Tehsildar, Sayla, District
         Jalore.
3.       Gebaram S/o Bhabutaram, R/o Sayla, Tehsil Sayla,
         District Jalore.
4.       Deeparam S/o Bhabutaram, R/o Sayla, Tehsil Sayla,
         District Jalore.
5.       Nanjiram S/o Bhabutaram, R/o Sayla, Tehsil Sayla,
         District Jalore.
6.       Pukhraj S/o Bhabutaram, R/o Sayla, Tehsil Sayla, District
         Jalore.
7.       Mularam S/o Bhabutaram, R/o Sayla, Tehsil Sayla, District
         Jalore.
8.       Lungo Kumari D/o Bhabutaram, R/o Sayla, Tehsil Sayla,
         District Jalore.
9.       Meena Kumari D/o Bhabutaram, R/o Sayla, Tehsil Sayla,
         District Jalore.
10.      Mangiya S/o Tariya, R/o Sayla, Tehsil Sayla, District
         Jalore.
11.      Bhera S/o Harji, R/o Otwala, Tehsil Sayla, District Jalore.
                                                                    ----Respondents


For Petitioner(s)            :     Mr. Amit Mehta
For Respondent(s)            :     Mr. Sandeep Bishnoi




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               HON'BLE DR. JUSTICE NUPUR BHATI

Order

15/02/2024

1. The present writ petition has been filed under Articles 226

and 227 of the Constitution of India claiming following reliefs:-

"(i) by an appropriate writ, order or direction, the impugned order dated 09.01.2024 (Annexure-7), passed by the learned Board of Revenue, Ajmer, in Case No.-

Revision/T.A./92/2024/Jalore (Digvijay & Ors. versus Jepia & Ors.), may kindly be set-aside.

(ii) by an appropriate writ, order or direction, the respondents may kindly be directed to maintain status quo in respect of the land in question for all purpose till the pendency of appeal proceedings before the learned Revenue Appellate Authority, Pali."

2. Brief facts of the case are that the respondent No.1/plaintiff

filed a revenue suit for partition and permanent injunction in

respect to the land in question against the petitioners and the

respondents Nos.2 to 11/defendants, before the learned Assistant

Collector, Sayla. As no one appeared on behalf of the defendants

before the learned Assistant Collector, Sayla, the learned Assistant

Collector, Sayla, vide judgment/decree dated 10.04.2023

(Annexure-2), allowed the suit filed by the respondent No.1

without affording any opportunity of hearing to the petitioners and

the respondents Nos.2 to 11/defendants and passed final

judgment/decree dated 28.06.2023 (Annexure-3). Being

aggrieved of the same, the petitioners preferred an appeal before

the Revenue Appellate Authority, Pali. The petitioners also filed the

stay application and the application under Section 5 of the

Limitation Act alongwith the appeal.

3. After hearing the petitioners, the learned Revenue Appellate

Authority, Pali, vide order dated 08.09.2023 (Annexure-5),

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granted interim order in favour of the petitioners and being

aggrieved of the same, the respondent No.1, preferred a revision

petition under Section 230 of the Rajasthan Tenancy Act, 1955

(hereinafter referred to as 'the Act of 1955'), before the Board of

Revenue, Ajmer. The Board of Revenue, Ajmer, allowed the

revision petition of the respondent No.1 vide order dated

09.01.2024 (Annexure-7).

4. Being aggrieved of the order dated 09.01.2024 (Annexure-

7), the petitioners have preferred the present writ petition.

5. Learned counsel for the petitioners, at the outset, submits

that the revision petition filed by the petitioners before the learned

Board of Revenue, Ajmer, is not maintainable, as under Section

230 of the Act of 1955, the Board has the power to call for the

'Case Decided' by any subordinate revenue Court and in the case

at hand, the revision petition has been preferred against the

interim order granted by the learned Revenue Appellate Authority,

Pali, and the appeal preferred by the petitioners, is still pending.

6. Learned counsel for the petitioners further submits that the

respondents have immediately sold off the property in dispute to

the third party as soon as the order dated 09.01.2024 (Annexure-

7) was passed in favour of the respondents.

7. In support of his contentions, learned counsel for the

petitioners places reliance upon the judgment dated 12.03.2014

passed by the learned Board of Revenue, Ajmer in the case of

Jagdish Prasad Vs. Bhopal Ram & Ors. : (Revision/LR/9867/2012/

Nagaur).

8. Per contra, learned counsel for the respondents submits that

the order dated 08.09.2023 (Annexure-5), is bad and unjust, as

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an ex-parte interim order has been granted by the learned

Revenue Appellate Authority, Pali and the respondents were not

giving any opportunity of hearing and thus, the respondents had

no other remedy but to prefer the revision petition before the

learned Board of Revenue, Ajmer.

9. I have heard and considered the submissions advanced by

the learned counsel for the parties and have gone through the

material placed on record.

10. This Court finds that as per Section 230 of the Act of 1955,

the Board may call for the record of any "Case decided" by any

Subordinate Revenue Court, in which, no appeal lies either to

Board or to the Civil Court, however, in the present case, the order

against which, the revision has been preferred, is an interim order

granted by the learned Revenue Appellate Authority, Bikaner and

the appeal filed by the petitioner is still pending before the learned

Revenue Appellate Authority, Pali and thus, it cannot be inferred

that the revision has been preferred against the final order.

11. This Court in the case of Ranjeet Singh & Ors. Vs. Dal Singh

& Ors., passed in SBCWP No.1593/2024, has observed that:-

"10. This Court finds that Section 230 of the Act of 1955 can only be invoked when any "case is decided" by the Subordinate Revenue Court and in the present case, the appeal under Section 225 of the Act of 1955, which has been preferred by the petitioners before the RAA, Pali, is still pending adjudication and has not been finally decided. Thus, the order passed by the RAA, Pali on the stay application, does not fall within the ambit of "Case Decided" as laid down under Section 230 of the Act of 1955. Section 230 has been reproduced hereinafter:-

"230. Power of the Board to call for cases--

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The Board may call for the record of any case decided by any subordinate revenue court in which no appeal lies either to the Board or to a civil court under section 239 and if such court appears --

(a) to have exercised jurisdiction not vested in it bylaw; or

(b) to have failed to exercise jurisdiction so vested; or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity.

Board may pass such orders in the case as thinks fit."

11. This is an admitted fact that the impugned order dated 29.11.2023 (Annexure-7), has been passed on the stay application granting interim order to the petitioners, whereas the appeal under Section 225 of the Act of 1955, was still pending and therefore, the Board of Revenue, Ajmer, was not justified in granting indulgence to the respondents in the revision petition under Section 230 of the Act of 1955, as the same was not maintainable before it.

12. This Court finds that the Coordinate Bench on 14.08.2023 in SBCWP No.11255/2023 titled as Jeta Ram Vs. Hadman & Ors. has held that:-

"10. Insofar as, the nature of order passed by the SDO dated 02.02.2023 is concerned, the same is only an ex-parte ad interim order. Thereafter, the order dated 17.02.2023 passed by RAA is also an interim order refusing to grant interim order qua order dated 02.02.2023, while the appeal was still pending and therefore, the BOR was justified in coming to the conclusion that the revision petition under Section 230 of the Act was not maintainable."

13. Thus, in view of the submissions made and without entering into merits of the case, and taking into consideration the fact that the revision preferred by the respondents under Section 230 of the Act of 1955 before the Board of Revenue, Ajmer, is not maintainable as the

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order dated 29.11.2023 (Annex.-7) passed by the RAA, Pali, cannot be said to be a final order in light of Section230 of the Act of 1955 and thus, the present writ petition deserves to be and is hereby accepted and the order dated29.01.2024 (Annex.-10) passed by the learned Board of Revenue, Ajmer in Revision/T.A. No.6645/2023/ District Jalore titled as "Dal Singh Vs. Jit Singh & Ors.", is hereby quashed and set aside.

14. The writ petition is allowed in the above terms. Stay application as well as all other pending applications, if any, also stand disposed of accordingly."

12. Thus, taking into consideration the fact that the revision is

not maintainable against the interim order passed by the learned

Revenue Appellate Authority, Pali, the impugned order dated

09.01.2024 (Annexure-7), passed by the learned Board of

Revenue, Ajmer in Case No.Revision/T.A./92/2024/Jalore (Digvijay

& Ors. Vs. Jepiya & Ors.), deserves to be and is hereby quashed

and set aside qua the petitioners.

13. The instant writ petition is allowed in these terms. Stay

application as well as all pending applications, if any, also stand

disposed of accordingly.

14. No order as to costs.

15. At the joint request made by learned counsel for the parties,