Rajasthan High Court - Jodhpur
Radha Kunwar vs Paresh Soni on 7 August, 2025
[2025:RJ-JD:32244]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 17835/2022
1. Radha Kunwar D/o Shri Girwar Singh, Aged About 37
Years, By Caste Rajput, Resident Of Village - Kotela,
Tehsil - Nathdwara, District Rajsamand.
2. Smt. Durga Kanwar W/o Lt. Shri Girwar Singh, Aged
About 51 Years, By Caste Rajput, Resident Of Village
Bagol (Kotela), Tehsil - Nathdwara, District Rajsamand.
3. Raj Kunwar D/o Shri Girwar Singh, Aged About 39 Years,
By Caste Rajput, Resident Of Village- Kotela, Tehsil
Nathdwara, District Rajsamand.
4. Genda Kunwar D/o Shri Girwar Singh, Aged About 34
Years, By Caste Rajput, Resident Of Village - Kotela,
Tehsil Nathdwara, District Rajsamand.
----Petitioners
Versus
1. Paresh Soni S/o Shri Navneet Kumar Soni, Resident Of
Naniji Ka Bag, Nathdwara, Tehsil Nathdwara, District
Rajsamand.
2. Sanjay Singhvi S/o Shri Dharam Chand, Resident Of
Tehsil Road, Nathdwara, Tehsil Nathdwara, District
Rajsamand.
3. Kamal Singh S/o Shri Girwar Singh, By Caste Rajput,
Resident Of Village Kotela, Tehsil Nathdwara, District
Rajsamand.
4. Smt. Prem Kanwar W/o Shri Girwar Singh, By Caste
Rajput, Resident Of Village Kotela, Tehsil Nathdwara,
District Rajsamand.
5. State Of Rajasthan, Through The Tehsildar, Nathdwara,
District Rajsamand.
6. Sub Registrar, Registration Office, Nathdwara, District
Rajsamand.
7. Assistant Collector (Sub Divisional Officer), Nathdwara,
District Rajsamand.
8. Land Settlement Officer Cum Revenue Appellate
Authority, Udaipur.
9. Board Of Revenue, Rajasthan, Ajmer.
----Respondents
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[2025:RJ-JD:32244] (2 of 8) [CW-17835/2022]
For Petitioner(s) : Mr. Parwat Singh Rathore
For Respondent(s) : Mr. Vinit Sanadhya
HON'BLE MR. JUSTICE SUNIL BENIWAL
Order
Reserved on : 22/07/2025
Pronounced on : 07/08/2025
1. The petitioners have preferred the instant writ petition
seeking following reliefs:-
"It is, therefore, respectfully prayed that:-
(a) by an appropriate writ, order or
direction, this petition may kindly be allowed
with costs and the impugned judgment dated
13.10.2022 passed by the learned Board of
Revenue (Annexure-6) may kindly be set aside
and the learned Board of Revenue may kindly
be directed to consider the matter in hand
under appeal on merits instead of remanding
back and hearing to the parties, passed the
appropriate orders.
(b) Any other appropriate order or direction,
which this Hon'ble Court deem just and proper
be passed in favour of the petitioners."
2. Learned counsel for the petitioners submitted that a suit
seeking partition of the land bearing Khasra No.11, ad-measuring
26 Bighas and 12 Biswa (hereinafter referred to as "the land in
question"), was filed, seeking partition amongst the 'Khatedars' in
accordance with their respective shares.
3. The Assistant Collector (Sub-Divisional Officer), Nathdwara,
District Rajsamand, vide judgment and preliminary decree dated
[2025:RJ-JD:32244] (3 of 8) [CW-17835/2022]
11.02.2015 (Annex.-01), was pleased to declare the respective
shares of the co-sharers as under:
(i) Kamal Singh S/o Girwar Singh, Raj Kunwar, Genda Kunwar
and Radha Kunwar D/o Girwar Singh - each entitled to 1/5th
share of the land in question;
(ii) Prem Kunwar and Durga Kunwar W/o Girwar Singh - each
entitled to 1/10th share of the land in question.
3.1. It is noted that defendant no.1 Dungar Singh had expired
during the pendency of the matter before Assistant Collector and
his legal representatives were already arrayed as defendants no.2
to 5 therefore, the matter was decided accordingly by the
Assistant Collector.
4. Being aggrieved by the preliminary decree dated
11.02.2015, an application under Section 151 CPC was filed by
respondent no.2 Sanjay Singhvi and respondent no.1 Paresh Soni
(hereinafter collectively referred to as 'applicants'), asserting that
they had purchased the shares of Dungar Singh, Kamal Singh,
Durga Kunwar and Prem Kunwar. However, the said application
under Section 151 CPC was dismissed by the Assistant Collector,
Nathdwara, vide order dated 06.09.2016 (Annex.-04).
5. Subsequently, realizing that the proper remedy was not
under Section 151 CPC, the applicants preferred an appeal under
Section 225 of the Rajasthan Tenancy Act, 1955 challenging the
preliminary decree dated 11.02.2015 before the Revenue
Appellate Authority (hereinafter referred to as 'RAA'). The appeal
was dismissed as time-barred by the RAA vide order dated
11.12.2017 (Annex.-05).
[2025:RJ-JD:32244] (4 of 8) [CW-17835/2022]
6. Aggrieved thereby, the applicants preferred a further appeal
before the learned Board of Revenue, Ajmer (hereinafter referred
to as 'BoR'). Vide order dated 13.10.2022 (Annex.-06), the BoR
partly allowed the appeal, set aside the order dated 11.12.2017
(Annex.-05) and remanded the matter with a direction to learned
RAA to decide the appeal on merit.
7. Being aggrieved by the order dated 13.10.2022, passed by
the learned BoR, the petitioners have preferred the present writ
petition.
8. Learned counsel appearing for the writ petitioners submitted
that the learned BoR committed a serious error in remanding the
matter, as the learned RAA was fully justified in dismissing the
appeal preferred by the subsequent purchasers i.e. present
respondents no.1 and 2. It was argued that not only was the
appeal barred by limitation, but the appellants also had no case on
merits as they were subsequent purchasers who could not claim
any better title than their vendors. Furthermore, it is submitted
that the applicants have no locus to claim any share in the suit
property at this stage, as the final decree has not yet been
passed.
8.1. Learned counsel further contended that the subsequent
purchasers cannot question the partition decree, as the share
claimed by them does not vest in a single hand, in view of the
findings recorded in the preliminary decree. It is urged that the
BoR erred in condoning an inordinate delay of approximately 18
months in filing the appeal and that mere pendency of an
application under Section 151 CPC could not constitute a sufficient
ground for condoning such delay.
[2025:RJ-JD:32244] (5 of 8) [CW-17835/2022]
9. Per contra, learned counsel for the respondents, at the
outset, while relying upon the relief claimed by the petitioners,
submitted that the petitioners themselves have prayed that the
matter may be relegated to the BoR for adjudication of the issue
in question. In view thereof, the petitioners now cannot object to
the remand. He further submitted that the grievance of the
petitioners, at best, is confined to the forum to which the matter
should be remanded i.e., whether it should be remanded to the
RAA or be adjudicated by the BoR itself.
9.1. Learned counsel for the respondents further submitted that
the learned BoR has rightly condoned the delay. He submitted that
the preliminary decree was passed by the Assistant Collector on
11.02.2015 and when the applicants came to know about the said
decree, they immediately preferred an application under Section
151 CPC on 25.03.2015 (Annex.-02). The said application came to
be dismissed vide order dated 06.09.2016 (Annex.-04) passed by
Assistant Collector, Nathdwara. Upon realizing that the appropriate
remedy was to prefer a regular appeal before the RAA and not to
file an application under Section 151 CPC, the applicants promptly
filed an appeal before the learned RAA on 03.10.2016. Thus, it
cannot be said that there was any inordinate delay.
9.2. Learned counsel further contended that the delay in filing the
appeal was caused due to pursuing an incorrect remedy and not
due to any deliberate or intentional act of delay on part of the
applicants. Sufficient cause was shown for seeking condonation of
delay.
9.3. Learned counsel for the respondents also submitted that the
applicants had purchased only 1/7th share, whereas under the
[2025:RJ-JD:32244] (6 of 8) [CW-17835/2022]
preliminary decree, the entitlement of the vendors from whom the
said purchase was made was determined to be 1/5th share.
Accordingly, the sale deed executed in favour of the applicants
pertains to a share that is admittedly less than what the vendors
were held entitled to in terms of the preliminary decree. That
being so, the contention of the petitioners that allowing the
subsequent purchasers to step into the shoes of the original
parties would lead to serious complications is misconceived.
10. Heard learned counsel for the parties and perused the
material available on record.
11. In the present case, the preliminary decree was passed on
11.02.2015 (Annex.-01), whereby the shares of Kamal Singh, Raj
Kunwar, Genda Kunwar, Radha Kunwar, Prem Kunwar and Durga
Kunwar were ascertained in the land in question. As per the
respondents, they are the subsequent purchasers and are not
claiming any share beyond what their predecessors-in-interest
have sold to them.
12. It is pertinent to note that the subsequent purchasers,
namely Paresh Soni and Sanjay Singhvi, preferred an application
under Section 151 CPC with a prayer that the subsequent sale
deed be taken into consideration and that the final decree be
drawn accordingly, taking into account their acquired rights.
However, the said application under Section 151 CPC was rejected
by the Assistant Collector vide order dated 06.09.2016 (Annex.-
04).
13. It appears that the applicants, upon realizing that the
remedy adopted by them was not in accordance with law,
preferred a regular appeal before the learned RAA against the
[2025:RJ-JD:32244] (7 of 8) [CW-17835/2022]
preliminary decree dated 11.02.2015. It is significant to note that
the application under Section 151 CPC was filed on 25.03.2015
(Annex.-02), i.e., within a period of approximately one month or
so from the date of the preliminary decree dated 11.02.2015. The
said application was dismissed on 06.09.2016 and the applicants
filed a regular appeal before the learned RAA on 03.10.2016 i.e.
within a month from the date of the dismissal of the application
under Section 151 CPC.
14. In light of the above, the delay of 18 months in filing the
appeal before the learned RAA was evidently caused due to the
applicants having pursued an incorrect legal remedy. Therefore,
the respondents had sufficient cause to seek condonation of delay,
and such delay cannot be said to be either deliberate or mala fide.
15. Learned BoR, while passing the impugned order, has rightly
condoned the delay and remanded the matter to the learned RAA
before whom the subsequent purchasers had initially preferred the
appeal, which was dismissed solely on the ground of delay. In the
considered opinion of this Court, the learned BoR was justified in
condoning the delay and remanding the matter, especially when
the delay was caused on account of pursuing a mistaken remedy
and was not intentional or negligent. Thus, there is no illegality in
the order passed by the learned BoR in condoning the delay.
16. On perusal of the prayer clause in the writ petition, it is
evident that petitioners have themselves sought remand of the
matter to the learned BoR for adjudication on merits. This clearly
indicates that the petitioners did not object to the remand as
such, but were aggrieved only to the extent that the matter was
remanded to the learned RAA instead of being adjudicated on
[2025:RJ-JD:32244] (8 of 8) [CW-17835/2022]
merits by the learned BoR. However, since the appeal was
originally preferred before the RAA and was dismissed on the
ground of limitation, the appropriate forum for adjudication of the
matter on merits would indeed be the RAA and not the BoR.
17. Learned counsel for the petitioners has also raised an issue
regarding the share sold, contending that the vendors could not
have transferred any portion of land beyond what they were
entitled to under the preliminary decree. Contrary to it, the
learned counsel for the respondents states that subsequent
purchasers have purchased only 1/7th share, which is less than
the share to which the vendors were entitled to under the
preliminary decree. Be that as it may, since BoR has simply
remanded the matter to RAA and even this Court is not
adjudicating the matter on merits therefore, without going into the
merits of the case, this Court deems it appropriate to affirm the
order of BoR. Needless to say, all parties including petitioners
would be allowed to raise all the objections before the RAA.
18. As an upshot of above discussion, this Court finds no reason
to interfere with the impugned order dated 13.10.2022
(Annexure-6) passed by the Board of Revenue. Accordingly, the
writ petition is dismissed.
19. Pending application(s), if any, stand(s) disposed of.
(SUNIL BENIWAL),J
Ashutosh
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