Research › Browse › Judgment

Rajasthan High Court · body

1999 DIGILAW 980 (RAJ)

Tota Ram v. Board of Revenue

1999-08-05

B.J.SHETHNA

body1999
Honble SHETHNA, J.–Ordinarily against the remand order, the revisional Court should be slow in interfering with such remand orders. (2). The present petition is filed against the order passed by the Board of Revenue on 17.5.90 in revision petition No. 96/89 whereby the Board of Revenue has interfered with the remand order passed by the Settlement Commissioner by which the matter was remanded to the Assistant Settlement Commissioner for deciding as to which decree prevails-whether the decree dated 18.6.84 passed by S.D.O., Kapasan which was earlier in point of time or the decree dated 16.2.85 for specific performance passed by the District Judge, which was latter in point of time. (3). In para No.6 of its order, the Board of Revenue has observed that, ``the learned Settlement Commissioner himself was competent to decide the points in issue as to whether the decree passed by S.D.O. Kapasan was binding or the decree passed by the District Judge was binding? It was not necessary for me to remand the case for the said purpose. The Board of Revenue was also of the opinion that under normal circumstances it would have remanded the matter to the Settlement Commissioner himself for deciding the said point, however, during the course of arguments a request was made by the learned counsel for the parties before him that instead of remanding the matter to the Settlement Commissioner, the Board of Revenue itself may decide the matter finally. Accordingly, the Board of Revenue heard the arguments of both the parties and decided the revision petition by his impugned order dated 17.5.90 (Annex.4). (4). It is true that the decree passed by S.D.O. Kapasan earlier in point of time on 18.6.84 and the District Judge passed the decree on 16.2.85 which was latter in point of time. Under normal circumstances, the decree passed in prior point of time would have been binding to the parties but in this case the Board of Revenue found the said decree passed by S.D.O. , Kapasan on 18.6.84 was a collusive decree which was obtained on the admission made by Virendra Singh in his written statement within 9 or10 months of the filing of the suit whereas the decree of specific performance was a contested decree, therefore, the Board of Revenue preferred to rely upon the subsequent decree dated 16.2.85 passed by the District Judge. Under the circumstances, when the Board of Revenue has come to a clear finding that the decree passed by S.D.O. Kapasan though it was earlier in point of time on 18.6.84 was collusive decree then this Court would not interfere with such findings in its supervisionary jurisdiction under Article 227of the Constitution of India. However, learned counsel Shri Purohit for Mr. Govind Mathur for the petitioners vehemently submitted that rightly or wrongly the decree passed by S.D.O. Kapasan on 18.6.84 became final because it was not challenged further, therefore, unless and until it is set aside by any competent court then it is binding. This submission of Mr. Purohit cannot be accepted by this court in its Supervisionary jurisdiction because both the learned counsel for the parties submitted before the Board of Revenue to decide the case without remanding the matter to the Settlement Commissioner. (5). Under the circumstances, when the Board of Revenue having regard to the facts of the case, gave a definite finding that it was a collusive decree therefore it was not binding and it preferred to reply upon the judgment and decree passed on 16.2.85 by District Judge then certainly this Court would not interfere with such finding recorded by the Board of Revenue in its powers under Article 226 or 227 of the Constitution of India. (6). In view of the above discussions, this petition fails and is hereby dismissed.