JUDGMENT 1. - The petitioners, in this writ petition, while claiming themselves to be transferees of the respondent No. 3 (Motilal s/o late Shri Ram Narain) against whom ceiling proceedings were initiated challenged the Judgments dated January 4, 1977 (Ex. 4), January 28, 1977 (Ex 5) and May 13, 1977 (Ex. 7) passed by the Sub- Divisional Officer, Kota, Revenue Appellate Authority, Kota, and the Board of Revenue Rajasthan, Ajmer respectively and it has been averred by them that the ceiling proceedings were initiated in relation to the land which was in Khatedari of Rain Narain and Ram Nath-both of them had expired and therefore, the land was subsequently recorded in Khatedari of Motilal adopted son of Ram Narain and Sunderbai widow of Ram Narain, and on the death of Ram Nath, his land was recorded in Khatedari of his son, Mamraj, his daughters Matoo Bai and Gopali Bai and Smt. Kesar Bai wd/o Ram Nath. Learned Authorised Officer (S. D. 0 Kota) vide his judgment dated May 30, 1975 (Ex. I) in ceiling proceedings No. 1469/75 declared surplus land in respect of the respondent No. 3-Motilal and the proceedings in respect of other respondents were dropped. During the pendency of the aforesaid ceiling proceedings. Sitaram (Petitioner No. 1) submitted an application stating therein that the respondent No. 3 sold him 15 Bighas and 4 Biswa of khasra No. 1431, and this land has been in exclusive cultivatory possession from 1968 to 1974. Sitaram (petitioner) further claimed that the land was purchased in the month of June, 1968-document in support of his claim was also filed by him. Learned Authorised Officer, Kota, recognised the aforesaid transfer of land in the name of respondent No. 3 with effect from June 1, 1968. The land sold to the petitioner Sitaram by the respondent No. 3 is equivalent to 2.73 standard acre. 2. The case of the petitioner No. 2 (Motilal Mahajan) is that he also purchased 6 bighas and 10 biswa of land of khasra No. 650 recorded as Barani III, from respondent No. 3 on June 19, (illegible) and in support of his claim, he has filed a true copy of the document executed by respondent No. 3 in favour of the petitioner No. 2, the Hasil receipts as well as receipts issued by the Irrigation Department. Learned Authorised Officer, Kota also recognised the transfer of the petitioner No. 2 vide his aforesaid order (Ex. 1), against which the respondent No. 3 filed an appeal before the Revenue Appellate Authority, on the ground that at the time of initiating proceedings, the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (for brevity,: Act of 1973) has already come into force and as such, the proceedings initiated against him under the old ceiling law i. e. Chapter III (B) of the Rajasthan Tenancy Act, 1955 ("Tenancy Act') are illegal and not sustainable in the eye of law. The aforesaid objection was accepted by the Revenue Appellate Authority and while accepting the appeal of the respondent No. 3 on this ground only, the Revenue Appellate Authority categorically observed that it was not necessary to consider other grounds and objections taken in memo of appeal; and thus, vide order dated December 4, 1975 the learned Revenue Appellate Authority allowing the appeal of the respondent No. 3 remanded the case to the learned Authorised Officer with this direction that he should take decision under the Act of 1973. Against the aforesaid order dated December 4, 1975 (Ex. 2). the State of Rajasthan submitted review petition wherein reliance was placed upon the decision reported in (1) 1976 R R. D p. 20. The learned Revenue Appellate Authority after hearing both the parties allowed review petition vide order dated June 20, 1976 and party accepted the appeal of the respondent No.3 only in respect of the computation of the members of the family of the respondent No.3; and thus, the Revenue Appellate Authority remanded case with a specific direction, to the learned authorised Officer to enquire into actual number of members of the family of the respondent No. 3 and then decide the case afresh. This order was therefore passed without disturbing the finding regarding transfer of land made by the respondent No. 3 in favour of the petitioners. On a careful perusal of the orders (Ex. 1 to Ex. 3), the averments of the petitioners that transfer is not de-recognised, appear, to be correct because. in the order (Ex. 3) only direction given by the learned Revenue Appellate Authority was that number of family members of the respondent No. 3 should be re-determined after recording the evidence in this regard. 3. 1 to Ex. 3), the averments of the petitioners that transfer is not de-recognised, appear, to be correct because. in the order (Ex. 3) only direction given by the learned Revenue Appellate Authority was that number of family members of the respondent No. 3 should be re-determined after recording the evidence in this regard. 3. Learned Sub-Divisional Officer, Kota decided afresh the case No. 1469/75 on January 4, 1977 vide his order (Ex. 4) wherein he reconsidered the whole matter and reviewed earlier findings in respect of the transfer of land made by the respondent No. 3 in favour of the petitioners; and thus, the respondent No. 3 was held to be successor of Ramnath and Smt. Sunderbai though objection was taken on behalf of the State Government that there is no evidence in respect of adoption in favour of the respondent No. 3; but the learned Sub-Divisional Officer derecognised the transfer made in favour of the petitioners which was recognised earlier by the Authorised Officer vide order dated May 30, 1975 (Ex. 1) and which has nowhere been challenged by the State. 4. Feeling aggrieved with the aforesaid order (Ex. 4) of the Sub-Divisional officer, Kota the petitioners filed appeal before the learned Revenue Appellate Authority, Kota. The appeals were also filed by the respondent No. 3 Motilal and Hemraj against the order (Ex. 4). The learned Revenue Appellate Authority heard all the three appeals together and by a common order dated Jan. 28, 1977 whereby the petitioners appeal No. 39/77 was dismissed and rest of the two appeals filed by the respondent No. 3 and Hemraj were allowed vide Ex. 3. The petitioners then filed a revision petition against the order (Ex. 5) and in that revision petition various grounds were taken by the petitioners specially one with regard to the jurisdiction of the Authorised Officer while setting aside earlier findings recorded by his predecessor in his order (Ex. 1) dated May 30, 1975. 5. The learned Member, Board of Revenue heard the revision petition at the admission stage and dismissed the same in limine vide order dated May 13, 1977 Ex. 7). Hence this writ petition. 6. We have heard the learned counsel for the parties. 7. Shri B.L. Samardia, learned counsel for the petitioners, argued that the findings under order (Ex. 5. The learned Member, Board of Revenue heard the revision petition at the admission stage and dismissed the same in limine vide order dated May 13, 1977 Ex. 7). Hence this writ petition. 6. We have heard the learned counsel for the parties. 7. Shri B.L. Samardia, learned counsel for the petitioners, argued that the findings under order (Ex. 1) dated May 30, 1975 with regard to the validity of the transfer in favour of the petitioners have become final because the same was not challenged in any competent court by the State Government or by any other person challenging the transfer in favour of the petitioners inasmuchas. The tile respondent No. 3 who has been admitted to be Khatedar tenant and successor of the deceased, Ram Narain admitted the transfer in favour of the petitioners. Shri Samardia therefore, placing reliance upon the decision of this Court in Uchhav Kanwar v. State of Rajasthan (1977 RLW p. 44) , contended that if any order is passed in contravention to the direction of the Revenue Appellate Authority the same is without jurisdiction. Learned counsel therefore, in the light of the aforesaid decision, submitted that by the order (Ex. 3) dated July 20, 1976, the only direction that was issued to the learned Authorised Officer (SDO, Kota) was with regard to the determination of the members of the family of the respondent No. 3, but the S.D.O. vide impugned order not only decided the issue of number of family members and also decided other points including that of transfer made in favour of the petitioners for which he (SDO) was not at all competent. Learned counsel then argued that the learned Revenue Appellate Authority though clearly held that the Authorised Officer had got no authority to consider any finding in the absence of specific order of remand, yet he erroneously took the shelter of Order 41 R. 33 CPC and according to the learned counsel, in the facts and circumstances of the case, the provision , of O. 41 R. 33 CPC are not applicable. 8. Next submission of the learned counsel for the petitioners is that the State of Rajasthan (respondent No. I) did not object to the findings recorded in the Judgment (Ex. 1) dated May 30, 1975 duly upheld by the learned Revenue Appellate Authority under Judgment dated July 20, 1976 (Ex. 3). 9. 8. Next submission of the learned counsel for the petitioners is that the State of Rajasthan (respondent No. I) did not object to the findings recorded in the Judgment (Ex. 1) dated May 30, 1975 duly upheld by the learned Revenue Appellate Authority under Judgment dated July 20, 1976 (Ex. 3). 9. It has also been argued that the Board of Revenue in spite of material and patent illegality and perversity in the judgments (Ex. 4 and 5) failed to interfere under revisional jurisdiction, and thus erroneously dismissed the revision petition in limine. 10. Contrarily, the learned Additional Government Advocate supported the order of the Board of Revenue. 11. We have given our thoughtful consideration to the rival contentions of the parties. After having gone through the relevant judgments passed by the learned Authorised Officer (SDO) and the learned Revenue Appellate Authority, Kota, we are of the view that the learned Authorised Officer, vide order (Ex. 1) recognised both the transfers claimed by the petitioners, which has not at all been disputed by the respondent No. 3 who has been recognised as successor of Ram Narain and as Khatedar of the land in question and that findings were also upheld by the leaned Revenue Appellate Authority under order (Ex. 3) dated July 20, 1976 while remanding the case to the learned Authorised Officer for specific purpose and that too for recording the evidence only in respect of determination of number of the family members of the respondent No. 3. 12. As stated herein before. the learned Authorised Officer (SDO) not only decided the matter with regard to the family members of the respondent No. 3 but also recognised the transfers made in favour of the petitioners by respondent No. 3 which have been recognised earlier under order (Ex. 1). The learned Revenue Appellate Authority in appeal No. 39/1977 filed by the petitioners though admitted that the learned Authorised Officer (SDO) was not competent to reconsider earlier findings in the absence of specific remand order yet he took shelter of O. 41 R. 33 CPC, as narrated herein before. 13. Order 41 R. 33, CPC. 1). The learned Revenue Appellate Authority in appeal No. 39/1977 filed by the petitioners though admitted that the learned Authorised Officer (SDO) was not competent to reconsider earlier findings in the absence of specific remand order yet he took shelter of O. 41 R. 33 CPC, as narrated herein before. 13. Order 41 R. 33, CPC. reads as under:- "Power of Court of Appeal.-The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees as passed in one suit be exercised in respect of or any of the decrees, although an appeal may not have been filed against such decrees : Provided that the Appellate Court shall not make any order tinder Section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order." 14. A look at the afore-quoted provisions of O. 41 R. 33, CPC makes it clear that the powers under O. 41 R, 33 CPC are vested in the appellate authority and not to the original Court or Authority. In the instant case, earlier findings of the Authorised Officer were quashed by the same authority in a subsequent Order and the same were upheld by the Revenue Appellate Authority. We are firmly of the view that this was not the case where Order 41 R. 33 CPC was applicable. 15. The question before the Revenue Appellate Authority was, whether the learred Authorised Officer (SDO) was competent to quash the findings arrived at by his predecessor under Order dated May 30, 1975 (Ex. 1) ? 16. The learned Revenue Appellate Authority himself admitted that the Authorised officer was not competent to reconsider earlier findings arrived at in favour of the petitioners. 17. 1) ? 16. The learned Revenue Appellate Authority himself admitted that the Authorised officer was not competent to reconsider earlier findings arrived at in favour of the petitioners. 17. Under O. 41 R. 33 CPC, the appellate Court shall have power to pass any decree or make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require. It is thus clear that the appellate authority can pass any decree and make any officer which has not been passed by the subordinate court or any authority and which ought to have been passed by that Court or Authority. In the instant case, the question is as to whether the Authorised Officer ought to have passed the order in quashing findings arrived at earlier in its order dated May 30, 1975 in favour o1 the petitioners. The powers under O. 41 R. 33 CPC can be exercised only when decree or order which ought to have been passed by the subordinate court has not been passed by it. In view of the aforesaid facts and circumstances it is clear that the findings arrived at by the learned Authorised Officer in his order dated May 30, 1975 (Ex. 1) which were subsequently upheld by the Revenue Appellate Authority and the same having not been quashed by any competent authority, the question arises as to whether the Revenue Appellate Authority, Kota was justified in saying that the findings arrived at by the learned Authorised Officer (SDO) are valid in view of the provisions of O. 41 R. 33 CPC. This matter has not been considered by the Board of Revenue and at this stage, we do not like to express any opinion on the said question but, we are convinced that the Board of Revenue could have given specific finding on the aforesaid question. It is thus clear that the Board of Revenue while passing the impugned order (Ex. 7) dated May 13, 1977, did not consider important question of law involved in the instant case and raised by the petitioners before it. Further, we are of the view that the Board of Revenue ought to have considered the proposition of law laid down in Uchhav Kanwar v. State of Rajasthan (1977 RLW p. 44) . 7) dated May 13, 1977, did not consider important question of law involved in the instant case and raised by the petitioners before it. Further, we are of the view that the Board of Revenue ought to have considered the proposition of law laid down in Uchhav Kanwar v. State of Rajasthan (1977 RLW p. 44) . And thus, the Board of Revenue failed to consider the grounds of illegality and perversity in the judgments (Exhibits 4 and 5) under its revisional jurisdiction, and in these circumstances, erroneously dismissed the revision petition in limine without carefully going through the grounds asserted in the memo of revision petition filed by the petitioners. 18. Shri Samdaria has also urged that even if the transfers made in favour of the petitioners are held to be invalid on account of non-registration of the sale deed the petitioners are entitled to succeed on the basis of the doctrine of Part Performance incorporated in Section 53-A of the Transfer of Property Act. The learned Additional Government Advocate has on the other hand, submitted that the doctrine of Part Performance can only be invoked against the transferor and that the said doctrine cannot be invoked against the State in the matter of determination of land in excess of the ceiling limits. In our opinion, this issue is of little significance because while demarcating the excess land the land covered by the impugned transfers can be included in the land allowed to be retained by the land holders under the ceiling law and in that event, it would be open to the petitioners to agitate their claim over the lands covered by the impugned transfers against the transferors on the basis of the doctrine of Part Performance. In our opinion, this matter also needs to be considered by the Board of Revenue. 19. In the result, this writ petition succeeds and we allow this petition partly setting aside the order of the Board of Revenue, Rajasthan, Ajmer (Ex. 7) dated May 13, 1977 and remand the case to the Board of Revenue with this direction that Revision Petition No. Ceiling/4/77/'Kota filed by the petitioners be decided afresh in the light of the observations made herein before. 7) dated May 13, 1977 and remand the case to the Board of Revenue with this direction that Revision Petition No. Ceiling/4/77/'Kota filed by the petitioners be decided afresh in the light of the observations made herein before. As the case has several innings for last two decades, we deem it proper to order and direct the Board of Revenue to decide the revision petition at the earliest possible not later than six months.No order as to costs.Case Remanded. *******