KAURANI, CHAIRMAN–Single Bench of this Board, which head three references sent by the Collector, Jodhpur under Section 82 of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as ``Act of 1956) by order dated 11.4.2005 has referred the following questions for opinion of Larger Bench of the Board: 1- D;k rglhynkj dks dkrdkjh vf/kfu;e ds ykxw gksus ds 34 o"kZ ckn flok; pd Hkwfe ij [kkrsnkjh nsus dk vf/kdkj gS\ 2- D;k izkjaHk ls gh vf/kdkj {ks= ls ckgj ikfjr ,sls kwU; o voS/k vknskksa ds vk/kkj ij Lo;a rglhynkj }kjk Lohd`r ukekUrjdj.k ds ekeys esa rglhynkj }kjk [kkrsnkjh vf/kdkj iznku fd;s tkus ds vknskksa dks fujLr djk;s fcuk ukekUrjdj.k dks fujLr ugha djk;k tk ldrk tcfd Lo;a rglhynkj Hkwfe/kkjd gksus ds ukrs flok; pd Hkwfe dk laj{kd (custodian) gS\ 3- Mh-ch- Lisky vihyksa esa ikfjr fu.kZ; fnukad 23-1-2004 dk bu izdj.kksa esa D;k izHkko gksxk\ (2). The Tehsildar Jodhpur by order dated 7.6.1989 conferred khatedari rights on the disputed Sivai Chak land to the non-petitioners and in compliance of this foundation order dated 7.6.89 Tehsildar Jodhpur sanctioned the mutations on 11.10.1989. Subsequently, two mutations were sanctioned, one on the basis of succession and another on the basis of sale-deed. The Collector, Jodhpur found all mutations sanctioned on the Sivai Chak land by the Tehsildar without jurisdiction hence has made three references under Section 82 of the Act, 1956 by orders dated 15.1.2002 and 15.7.2002. (3). The Single Member of the Board who heard these references felt that the Tehsildar has no jurisdiction to confer khatedari rights on the Sivai Chak land but at the same time he mentioned that a Single Benchof the Board in an earlier reference No. 306/02 State vs. Durgaram rejected the reference made by the Collector on the ground that unless the foundation order of the Tehsildar conferring the khatedari rights is challenged, the mutation sanctioned in compliance of that foundation order of the Tehsildar, cannot be set aside, and that reference number 306/02 was rejected by judgment of 28.3.2003 & special appeal filed against this judgment has also been rejected by Division Bench of the Board by judgment dated 23.1.04. (4). (4). In view of judgment of the Division Bench dated 23.1.2004 the learned Single Member find himself unable to decide the references because he did not agree with the finding in the judgment of Single Bench dated 28.3.2003 and that of the Division Bench dated 23.1.2004. Therefore he has framed the above three questions referred in para No. 1 and requested the Honble Chairman of the Board to make reference to the Larger Bench to answer these questions. The Honble Chairman has constituted this Larger Bench to give opinion on the questions, hence, these references have come up for hearing and decision before us. (5). Shri Virendra Singh, Counsel for the non-petitioner has contended that this reference is not a valid reference because legal position on all the three questions referred is well settled. He submits that khatedari rights on the Sivai Chak land cannot be conferred by Tehsildar. His contention is that Tehsildar has right to confer khatedari rights under Section 19(1) of the Rajasthan Tenancy Act, 1955 (Hereinafter referred to as ``The Act of 1955). He further submits that unless the foundation order, in compliance of which the mutation has been sanctioned, is challenged, the mutation sanctioned in compliance of that foundation order cannot be set aside. He further submits that the decision of Division Bench of the Board dated 23.1.2004 having binding effect because the judgment of Single Bench dated 28.3.2003 has merged in the judgment dated 23.1.04 of the Special Appeal by Division Bench His contention is that learned Single Member who has made these three references to Larger Bench is bound by the judgment of Division Bench dated 23.1.04. Since the legal position on all the three questions in the reference made by learned Single Member is well settled, therefore, these references made by learned Single Member are not valid references and are incompetent references. (6). The learned Member of Bar Shri P.S. Dashora has contended that the Tehsildar has no right to confer khatedari rights on Sivai Chak land. He submits that Tehsildar is not authorized to confer khatedari rights under the Tenancy Act. Tehsildar has only right to sanction mutation on the basis of khatedari rights conferred by the operation of law under Section 19(1) of the Act, 1955. He submits that Tehsildar is not authorized to confer khatedari rights under the Tenancy Act. Tehsildar has only right to sanction mutation on the basis of khatedari rights conferred by the operation of law under Section 19(1) of the Act, 1955. He further submits that the Assistant Collector under Section 19(2) after enquiry confers khatedari rights and the Tehsildar is authorized to sanction the mutation in compliance of the order of Assistant Collector. So far as the question No. 3 he has contended that the judgment of Division Bench is only a decision rejecting the appeal at the admission stage on some technical defect in the reference made to the Single Bench. Therefore, the judgment of the Division Bench is not a judgment after hearing of a case on merits and as such it is not a `Precedent and having no binding effect on a single Bench in other cases. (7). The Government Advocate Shri J.P. Mathur has supported the order of learned Single Member dated 11.4.2005 making reference to the Larger Bench on all three questions and has submitted that Tehsildar has no right to confer khatedari rights on the Sivai Chak land. He further submits that in references made by the Collector under Section 82 of the Act of 1956, learned Single Member of Board was competent to look into the illegalities of the mutations as well as illegality of the foundation order in compliance of which these mutations were sanctioned. He has referred the power of the Board under Section 9 of Act of 1956, and Section 221 of the RT Act to do so. He has supported other arguments made by Shri P.S. Dashora. (8). Shri J.K. Pant, Advocate has contended that the Tehsildar has no right to confer khatedari rights on Sivai Chak land and with regard to Division Bench judgment dated 23.1.04, his contention is that it has no binding effect on single members because it is only a decision at admission stage on technical defect. Therefore, the judgment of the Division Bench is not judgment on merits and as such has no binding effect on a single bench. (9). Shri Dunichand, Advocate has argued that instead of dealing with the question referred by the Single Bench this Larger Bench should exercise the powers conferred under Section 9 of the Act 1956 and decide the whole controversy on merits. (10). (9). Shri Dunichand, Advocate has argued that instead of dealing with the question referred by the Single Bench this Larger Bench should exercise the powers conferred under Section 9 of the Act 1956 and decide the whole controversy on merits. (10). We have considered the arguments of the learned counsels appeared on both the sides as well as learned counsels who appeared and argued the matter as (amicus curie). All the three references made to Larger Bench are similar and in all the references similar three questions have been framed. Therefore all the three references have been heard together and are decided by this common judgment. A copy of this judgment be placed on each file. (11). So far as the competence of Single Member of the Board making these three references is concerned Section 11 of the `Act of 1956 provides the provision for making reference which is as under: Section 11 : Power to refer to a Bench–The Chairman or any other Member of the Board sitting singly for the disposal of any case or proceeding may, if he thinks fit, for reasons to be recorded in writing, refer any question of law or custom having the force of law or of the construction of any document arising before him in such case or proceeding, for the opinion of a Bench, and the case or proceeding shall be disposed of in accordance with such opinion. (12). (i) Bhalla vs. Mst. Gulab Kanwar reported in 1977 RRD page 1 held as under: ``Rajasthan Land Revenue Act, Section 11, R.T. Act Section 180(1)(b) Expl-Division Bench whose reference, already answered by five Members Bench, bound to decide case in accordance with opinion provided to it and D.B. cannot request for reconsideration of opinion of five Member Bench in same case-Earlier pronouncement when reviewed on its own motion by 7 Member Bench. (ii) Ali Sher Khan vs. State of Rajasthan, 1986 RRD page 731 held as under: ``Rajasthan Land Revenue Act, Sec. 11-Reference by Single Bench to Larger Bench for opinion on hypothetical questions-Held, not maintainable and not to be answered-Ref. Misconceived and called for no answer. (ii) Ali Sher Khan vs. State of Rajasthan, 1986 RRD page 731 held as under: ``Rajasthan Land Revenue Act, Sec. 11-Reference by Single Bench to Larger Bench for opinion on hypothetical questions-Held, not maintainable and not to be answered-Ref. Misconceived and called for no answer. Apparent conflict of decisions between 1978 RRD 422 and 1981 RRD 133 and as such needed reconsideration by Larger Bench Single Bench referred two questions for its opinion, (a) whether law laid down in 1978 RRD page 422 that the holding of a wife, purchased by her without any assistance from her husband, is to be excluded from holdings of family and if so, (b) Whether the same will be applicable to holdings of wives of all assesses and therefore to `Stridhan also, keeping in view Art. 15(1) of Constitution in super-cession of decision in 1981 RRD 133. (iii) M/s Pyarelal Lalchand vs. State reported in 1968 RRD page 589 held as under: ``Reference by a Single Member under Section 11 of the Rajasthan Land Revenue Act, 1956 clearly authorized a Member who thinks that the opinion expressed by a Division Bench of the Board previously was according to him, not correct, to refer any question of law for the opinion of a Larger Bench. (13). In view of the provisions contained in Section 11 of the Act of 1956 and the case laws cited above this reference is neither on hypothetical questions nor the Larger Bench of the Board previously has given any opinion on these questions. Hence these references are maintainable. (14). Three references under Section 82 of the Act of 1956 have been referred by the Collector Jodhpur in case No. 34/2000 by order dated 15.1.2002 (Reference No. 292/02) and case No. 27/2000 by order dated 15.1.2002 (Reference No. 292/02) and case No. 28/2000 by order dated 15.7.2002 (Reference No. 638/02) to the Board. In reference 292/02 the Collector has requested to set aside mutation No. 156 dated 11.10.89 and subsequent mutation No. 347 dated 15.5.1999. In reference No. 292/02 the Collector, Jodhpur has requested to set aside mutation No. 160 dated 11.10.89 and in reference No. 638/02 the Collector has requested to set aside mutation No. 153 dated 11.10.1989 and subsequent mutation No. 260 dated 30.6.95. (15). In reference No. 292/02 the Collector, Jodhpur has requested to set aside mutation No. 160 dated 11.10.89 and in reference No. 638/02 the Collector has requested to set aside mutation No. 153 dated 11.10.1989 and subsequent mutation No. 260 dated 30.6.95. (15). It is not disputed that all these mutations have been sanctioned by the Tehsildar Jodhpur in consequence of the order passed by the Tehsildar, Jodhpur on 7.6.1989 (hereinafter referred to as ``foundation order conferring the khatedari rights over the disputed Sivai Chak land. It is not disputed that mutation No. 156 dated 11.10.89 and mutation No. 160 dated 11.10.1989 & mutation No. 153 dated 11.10.89 were sanctioned by the Tehsildar, Jodhpur in compliance of the ``foundation order of Tehsildar dated 7.6.1989 by which Tehsildar, Jodhpur conferred khatedari rights on the disputed land which is admittedly Sivai Chak land & Khatedari rights on this Sivai Chak land has been conferred by the Tehsildar on the basis of long possession only. Subsequent mutations are on account of succession and sale by the original persons in whose favour the above referred three mutations were sanctioned. (16). The Collector while making references to the Board has mentioned that the impugned mutation which have been sanctioned on Sivai Chak land on the basis of possession are illegal because Tehsildar has got no jurisdiction to confer khatedari rights on the Sivai Chak land on the basis of long possession and asked the Board to set aside these mutations. (17). The learned Single Member while hearing these references was also of the opinion that the Tehsildar is not competent authority to confer khatedari rights on the Sivai Chak land on the basis of the possession. The learned counsels who have argued and assisted the court have also unanimously contended that Tehsildar is not competent to confer khatedari rights on the Sivai Chak land on the basis of possession, laws also says so. In view of above there was no need to as for opinion of Larger Bench on the question No. 1. Learned Single Member is competent to proceed in view of the settled law on the point instead of asking for opinion of this question from Larger Bench. (18). In view of above there was no need to as for opinion of Larger Bench on the question No. 1. Learned Single Member is competent to proceed in view of the settled law on the point instead of asking for opinion of this question from Larger Bench. (18). Now coming to second question, which relates to two steps-``First step by which the Tehsildar conferred the khatedari rights by order dated 7.6.1989 (foundation order) and the second step by which the Tehsildar sanctioning the mutation on 11.10.1989 in compliance of the foundation order dated 7.6.1989. Earlier in a reference made by Collector under Section 82 to the Board for quashing & setting aside the mutations, which were sanctioned in compliance of foundation order without challenging the foundation order was considered by the Board of Revenued in State vs. Lal Singh & Others case reported in 1972 RRD page 356 in which khatedari rights were conferred and declared by the Assistant Collector and in compliance of that order of the Assistant Collector, the Tehsildar sanctioned mutation and the Board held that since the mutation is not sanctioned in isolation and has been sanctioned in compliance of the order conferring khatedari rights (foundation order) therefore, unless the order conferring the khatedari rights is set aside, the mutation sanctioned in compliance of such order cannot be set aside. It is worthy to note here that in above reported case the Board refused to set aside the mutation and decided to initiate proceedings under Section 9 of the Act of 1956 to examine the legality of the foundation order by which the khatedari rights were conferred. (19). In above referred case Board while deciding the reference has not dismissed the reference on merits but dismissed the reference because foundation order conferring khatedari rights was not challenged in that reference. State Government was given liberty to challenge the foundation order as well as the mutations afresh. It is clear from the above judgment that the order rejecting reference does not bar the State Govt. from making fresh reference in the same matter and the State Government is absolutely free to again make reference and challenge the foundation order conferring khatedari rights as well as the mutations sanctioned in compliance of the basic/foundation order. (20). It is clear from the above judgment that the order rejecting reference does not bar the State Govt. from making fresh reference in the same matter and the State Government is absolutely free to again make reference and challenge the foundation order conferring khatedari rights as well as the mutations sanctioned in compliance of the basic/foundation order. (20). In cases where the Board while hearing a reference against illegal mutation during the course of hearing if finds that the illegal mutation has been sanctioned in compliance of foundation order and that foundation order has not been challenged in such cases the Board is competent to examine the illegality of mutation order as well as the foundation order by way of exercising the power conferred to it under Section 9 of Act of 1956 and under Section 221 of the Act of 1955 asking & summoning from conerning authorities foundation order & its proceedings and after giving opportunity of hearing to both the parties the legality of that foundation order as well as mutation can be decided. In our view in the present case also the Learned Single Member is competent and he can proceed himself and decide the validity of foundation order & mutation sanctioned in compliance of the foundation order. (21). Now we come to third question it is to be decided that whether judgment of Division Bench is a precedent and having binding effect on Single Bench in other case. We also have to examine the nature of Division Bench judgment dated 23.1.04 & its effect and application of doctrine of merger. In order to decide this question it would be proper for us to reproduce the various judgments of the courts as under: (i) AIR SC 1971/2313 : India Electric Works vs. Jamesn Mantosh (P) the Supreme Court of India held as under: ``Precedents-Requirement of public interest should be considered in disturbing a question of law, which has held field for long time. ``Though on the plain language of Section 14(i) of the Limitation Act, I would have had no hesitation in holding that the plaintiff cannot avail himself of the benefit of that provision, as a misconceived suit, such as the one he filed earlier claiming future mesne profits in a money suit cannot be said to be a claim which the Court was unable to entertain from defect of jurisdiction or other cause of a like nature yet in view of the decision of the Judicial Committee in Mst. Rance Surno Moyee vs. Shooshee Mokhee Burmonia. (1867-69) 12 Moo Ind App 244 which decision has been followed in the later decisions of the Judicial Committee as well as in several decisions of High Court, I am of the opinion that it is not in public interest to disturb a question of law which has held the field for a long time. The decision of the Judicial Committee referred to earlier held that a claim which is satisfied, an expression held to include even getting of a decree on a claim, if reopened because of the decree of the appellate Court or otherwise, a new cause of action accrues to the plaintiff on the date the earlier satisfaction is taken away. Applying that rule to the facts of the present case a new cause of action must be deemed to have accrued to the appellant in respect of the mesne profits under dispute once the decree of the trial was set aside by the High Court. For this reason I agree with the order proposed. (ii) AIR 1980 KARNATAKA 92 FULL BENCH Govindanaik G. Kalaghatigi, Petitioner vs. West Patent Press Co. Ltd. and Another and considered law of Precedence held as under: ``Precedents-Two conflicting decisions of the Supreme Court-One given by Larger Bench should be followed-1974) I Kant IJ 344 (FB), Overruled. In view of the majority opinion, the answer to the question referred to this Full Bench, is as follows:- ``If two decisions of the Supreme Court on a question of law cannot be reconciled and one of them is by a Larger Bench while the other is by a smaller Bench, the decision of the Larger Bench, whether it is earlier or later in point of time, should be followed by High Courts and other Courts. However, if both such Benches of the Supreme Court consist of equal number of Judges, the later of the two decisions should be followed by High Courts and other courts. (iii) AIR 1976 SUPREME COURT 2433: Union of India & Another vs. K.S. Subramaniam held as under: ``Precedents-Duty of High Court to follow opinions expressed by Larger Benches of Supreme Court. The proper course for a High Court is to try to find out and follow the opinions expressed by Larger Benches of the Supreme Court in preference to those expressed by smaller benches of the Court. That is the practice followed by the Supreme Court itself. The practice has now crystallized into a rule of law declared by the Supreme Court. If however, the High Court is of opinion that the views expressed by Larger Benches of the Supreme Court are not applicable to the facts of the case it say so giving reasons supporting its point of view. (iv) RRD 1978 page 1 State of Rajasthan vs. Gangaram & Others held as under: ``Precedents-Decision, given per incuriam in ignorance of terms of Statue-Effect-Subordinate court, bound to follow interpretation of law, made by H.C.-Where decision of H.C. given per incuriam overlooking specific provisions of Statute, it will not be binding to that extent since H.C. cannot over ride intention of Leg. (v) RLR 2000(1) = RLW 2001(2) Raj. 741 Madan Lal Jat vs. State of Rajasthan & Anothers held as under: ``(a) Precedents: Reference to Larger Bench-When not competent Single Judge made reference to Larger Bench for reconsideration of judgment given by Full Bench (of three judges) in Dharampal Singhs case (2000(3) RLR 728) in view of Supreme Court judgment in Commissioner of Police vs. Dhaval Singh (1999) 1 SCC 246 )-Held, reference made by Single Judge is not competent-Judgment delivered by Full Bench of High Court does not require any reconsideration on a reference being made by a Single Judge who is bound by the judgment of Full Bench-Reference can be made to Larger Bench for examining correctness of a judgment only by a Bench consisting of same number of Judges who delivered such judgment (Reference to Larger Bench-When not competent). (vi) RLW 1996 (2) Rajasthan page 210: Dinesh Chandra Sharma vs. State of Rajasthan held as under: ``Constitution of India, Art. 226. (vi) RLW 1996 (2) Rajasthan page 210: Dinesh Chandra Sharma vs. State of Rajasthan held as under: ``Constitution of India, Art. 226. Precedent-Single Bench is bound by the decision of other Single Bench, otherwise to refer matter to Division Bench-Single Bench is bound by the decision of Division Bench-In case of two contrary views of the Division Bench, the later view will be followed provided earlier view was considered in the later decision-If the earlier decision was not brought to the notice of the Division Bench, the earlier Division Bench decision would not lost its binding force-Held-The petitioner is not entitle for any relief on the basis of the Division Bench decision-Writ petition dismissed. (vii) AIR 1967 ALL. 180 (V54 C 56) Premchandra and Another vs. Dy. Director of Consolidation, Bara Banki and Others held as under: ``E) Civil P.C. 1908), Precedents-Same High Court-Division Bench-Single Judge cannot refuse to be bound by a Divisional Bench decision of the same High Court on the ground that an argument or provision was not noticed by the Bench. ``Per M.C. Desai C.J.: No court deals with every single argument advanced before it, regardless of merits, in its judgment. Certain arguments are left unnoticed on the ground that there is no force at all in them. A decision of a Bench on a certain question binds a singl3e judge of the same High Court when he has to answer that question and he cannot refuse to be bound on the ground that a certain argument or a certain provision was not noticed by the Bench. If the Bench found that the provision was irrelevant a single Judge cannot override that finding of the Bench and hold that there was force or relevancy and them refuse to be bound by it. (viii) 1987 RRD page 584 Shravan Singh vs. State of Rajasthan held as under- ``(a) Rajasthan Land Revenue Act 9 & 11-Constitution of India, Article 141-Precedents-A Bench of Board can over rule decision of an earlier co-ordinate Bench on ground that earlier judgment did not take into account certain provision of law if provisions ignored are so vital that judgment of earlier co-ordinace Bench can be said to be per incuriam. (b) Rajasthan Land Revenue Act 9 & 11-Constitution of India 141-Precedents-If earlier judgment was per incuriam it will not be a valid precedent to be followed-In any other case subordinate courts will be free to choose between two conflicting decisions of Board given by co-ordinate Benches. (ix) AIR 1981 All. 300 Gopal Krishna vs. V. Addl. District Judge, Kanpur held as under- ``(a) Constitution of India Article 141-Precedents-Conflict between two decisions of Supreme Court given by Judges of equal strength-Decision of latter Bench is binding-Doctrine of per incuriam-Applicability-(Precedents-Doctrine of per incuriam). Para 19 ``The Supreme Court has dealt with the binding nature of its pronouncements in a number of decisions it is not necessary to refer to those cases. In a case where a High Court finds any conflict between views expressed by larger and smaller Benches of the Supreme Court, the Supreme Court said that proper course for sucha High Court is to follow the opinion expressed by smaller Benches of the Court (See State of U.P. vs. Ram Chandra, AIR 1976 SC 2547 ). (x) AIR 1974 S.C. (Pr.I) Gojer Brothers vs. Ratan Lal held as under: ``Where the decree of the Trial Court is carried in appeal and the appellate court dispose of the appeal after a contested hearing, the decree to be executed is the decree of the appellate court and not of the Trial Court. The reason for this rule is that in such cases the decree of the Trial Court is merged in the decree of the appellate court. (xi) In AIR 1986 SC 1780 Patna V. Balakrishna IOC vs. State of Rajasthan & Others it is held. ``Constitution of India Arts. 136 and 226 dismissal of special leave petition by Supreme Court by non-speaking order-No bar to trial of same issues in High Court under Art. 226 Decision of Patna High Court, reversed. The dismissal of a special leave petition in limine by a non-speaking order does not justify any interference that by necessary implication and contentions raised in the special leave petition on the merits of the case have been rejected by the Supreme Court. The dismissal of a special leave petition in limine by a non-speaking order does not justify any interference that by necessary implication and contentions raised in the special leave petition on the merits of the case have been rejected by the Supreme Court. Neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of the Supreme Court dismissing the special leave petition operate to bar the trial of identical issues in a separate proceeding namely, the writ proceeding before the High Court merely on the basis of an uncertain assumption that the issues must have been decided by the Supreme Court at least by implication. Decision of Patna High Court reversed. (xii) RRT 2005(2) 774 Keshu Ram & Ors. vs. UIT, Udaipur through Secretary, UIT held as under: ``Rajasthan land Revenue Act, Sec. 84-Land acquired by order of special officer & in compliance of the order land mutated in the name of UIT-Order of attestation of mutation challenged but Courts below dismissed the appeal-Revision-Basic foundation of the mutation is the order of acquisition of land-Without challenging the order of acquisition of land, mutation cannot be cancelled-No legal or jurisdictional error in the order of Courts below & upheld. (xiii) RRD 1972 Page 356: State of Rajasthan vs. Lal Singh & Ors. (supra), held as under: ``Rajasthan Land Revenue Act-(a) Section 91: Land entered as Sivai Chak-In appeal against order of eviction passed by Tehsildar, Assistant Collector was not competent to declare that the land was khudkasht of ex-Jagirdar. (b) Section 82: Reference for canceling mutation recorded on the basis of illegal order of Assistant Collector-mutation could not be cancelled without setting aside order of Assistant Collector-Reference, rejected. (c) Section 9: Illegal order of Assistant Collector-Board suo moto decided to initiate proceedings. (xiv) RBJ (5) 1998 Page 325 : The Sree Narayan Dharma Sangama Trust vs. Swami Prakashananda and Others, held as under: ``CPC O47 R1-After passing of Order by apex-court-Order of the High Court stands merged with the order of apex-court. (xv) DNJ (SC) 2003 383 : Kunhayammed & Ors. vs. State of Kerala & Anr. Held as under: (a) CPC:47-Review-Whether Order of the High Court can still exercise its review powers-Constitution of India, 1950 Art. 136. (xv) DNJ (SC) 2003 383 : Kunhayammed & Ors. vs. State of Kerala & Anr. Held as under: (a) CPC:47-Review-Whether Order of the High Court can still exercise its review powers-Constitution of India, 1950 Art. 136. (xvi) RBJ 2004 : Budhdan vs. Board of Revenue held as under: Rajasthan Land Revenue Act, 1956 Sec. 260(1)(B) and 133 to 135-Provisions of Section 133 to 135 cannot be invoked to make alterations in the land records by referring to a pre-existing right, which has not arisen after the entries was recorded, so as to after the presumption arising in respect of existing entires ab out their being true. (22). As per the Supreme Court judgment ``IOC vs. State of Rajasthan referred above it is clear that dismissal of Special Leave Petition by the Supreme Court by a non speaking order does not bar to the trial of same issues in High Court in Article 226. This Supreme Court judgment lays down that such rejection of Special Leave Petition by the Supreme Court does not operate any bar of identical issues in a separate proceedings because in such cases principle of resjudicata or principle of public policy does not apply. (23). In view of above legal position now we come to the facts and circumstances of the present case to see what is the effect of judgment dated 23.1.2004 of Division Bench of the Board. We would like to reproduce here the judgement of learned Single Judge dated 28.3.2003 as well as the judgment of Division Bench dated 23.1.04 in Special Appeal against Single Bench judgment dated 28.3.2003. We would like to reproduce here the judgement of learned Single Judge dated 28.3.2003 as well as the judgment of Division Bench dated 23.1.04 in Special Appeal against Single Bench judgment dated 28.3.2003. U;k;ky; jktLo e.My jktLFkku] vtesj izdj.k la[;k % 306@2002@jsQjsUl@,y-vkj-@tks/kiqj jkT; ljdkj tfj;s rglhynkj] tks/kiqj ----- izkFkhZ fo:) nqxkZjke iq= Vhekjke tkfr es?koky fuoklh xkaxk.kk rglhy] tks/kiqj ----- vizkFkhZ ,dy ihB ch-ch- egkfUr] lnL; mifLFkr%& Jh ts-ih- ekFkqj jktdh; vfHkHkk"kd Jh Hkokuhflag kDrkor odhy vizkFkhZ fu.kZ; fnukad 28-3-2003 ;g jsQjsUl /kkjk 82 jktLFkku Hkw jktLo vf/kfu;e 1956 ds vUrxZr ukekUrjdj.k 158 fnukad 11-10-89 ,oa blds vk/kkj ij [kksys x;s vU; ukekUrjdj.kksa dks fujLr djkus gsrq dysDVj] tks/kiqj }kjk muds fu.kZ; fnukad 15-1-2002 ls izsf"kr fd;k x;k gSA rF; la{ksi esa bl izdkj gS fd xzke pks[kk rglhy tks/kiqj dh vkjkth [kljk uacj 679 jdck 6 ch?k 12 fcLok] [kljk uEcj 708 jdck 17 ch?kk 7 fcLok dqy jdck 26 ch?kk 10 fcLok Hkwfe ij rglhynkj }kjk vizkFkhZ dks [kkrsnkjh vf/kdkj fn;s x;s ftlds vk/kkj ij ukekUrjdj.k la[;k 158 fnukad 11-10-89 dks Lohdkj fd;k x;kA mDr ukekUrjdj.k dks fujLr djkus gsrq ;g jsQjsUl izsf"kr fd;k x;k gSA fo}ku jktdh; vfHkHkk"kd dk cgl esa rdZ gS fd rglhynkj dks flok;pd Hkwfe ij [kkrsnkjh vf/kdkj nsus ds vf/kdkj ugha gS ,oa rglhynkj] tks/kiqj }kjk vizkFkhZx.k ds i{k esa {ks=kf/kdkj ls ckgj tkdj [kkrsnkjh vf/kdkj fn;s gSA ,sls izHkkoghu vknsk dh vuqikyuk esa [kksyk x;k ukekUrjdj.k voS| gSA jktLFkku drdkjh vf/kfu;e ds izko/kkuksa ds vuqlkj [kkrsnkjh vf/kdkj /kkjk 88 ds rgr gh fn;s tk ldrs gSaA vr% jsQjsUl Lohdkj fd;k tkosA fo}ku vfHkHkk"kd vizkFkhZ dk cgl esa rdZ gS fd ukekUrjdj.k la[;k 158 fnukad 11-10-89 rglhynkj ds vknsk dh vuqikyuk esa [kksyk x;k gS ;g jsQjsUl mDr ukekUrjdj.k dks fujLr djkus gsrq izsf"kr fd;k x;k gSA ukekUrjdj.k ftl vknsk dh vuqikyuk esa Lohd`r fd;k x;k gS] og vknsk ;Fkkor gS ,oa mls fdlh Hkh U;k;ky; esa vkt rd pqukSrh ugha nh xbZ gSA vr% tc rd og vknsk ;Fkkor gS rc rd ml vknsk dh ikyuk esa Lohd`r fd;s x;s ukekUrjdj.k dks fujLr ugha fd;k tk ldrkA fo}ku vfHkHkk"kd us vius rdZ ds leFkZu esa vkjvkjMh 1992 ist 356 U;k; n`"VkUr izLrqr fd;k ,oa fuosnu fd;k fd ;g jsQjsl budEiyhV gksus ls [kkfjt fd;k tkosA geus nksuksa i{kksa ds fo}ku vfHkHkk"kdksa dh cgl ij euu fd;k ,oa i=koyh dk voyksdu fd;kA rglhynkj] tks/kiqj }kjk vizkFkhZ ds i{k esa [kkrsnkjh vf/kdkjh fn;s x;s gS ,oa mlh dh vuqikyuk esa vkyksP; ukekUrjdj.k Lohd`r fd;k x;k gSA dysDVj] tks/kiqj }kjk ;g jsQjsUl fookfnr ukekUrjdj.k dks fujLr fd;s tkus gsrq izsf"kr fd;k x;k gSA pawfd fookfnr ukekUrjdj.k ftl vknsk dh vuqikyuk esa Lohd`r fd;k x;k gS og vknsk vkt rd ;Fkkor gSA ,slh fLFkfr esa fookfnr ukekUrjdj.k dks fujLr ugha fd;k tk ldrk] tSlk fd 1992 vkjvkjMh ist 356 jktLFkku ljdkj cuke yky flag o vU; esa fl)kUr izfrikfnr fd;k x;k gSA ,slh fLFkfr esa ;g jsQjsl Lohdkj fd;k tkrk gSA fu.kZ; fy[kk;k tkdj [kqys U;k;ky; esa lquk;k x;kA g-@& ¼ch-ch- egkfUr½ lnL; [k.MihB Jh iadt] lnL; Jh cnzhyky eh.kk] lnL; mifLFkr%& Jh txnhk izlkn ekFkqj] jktdh; vfHk- vihykUVA fnukad 23-1-04 fu.kZ; ;g rhuksa Lisky vihysa vUrxZr /kkjk 10 jktLFkku Hkw jktLo vf/kfu;e] 1956 fo:) vknsk 28-3-2003 tks jktLo e.My ds ,dyihB }kjk ¼ekuuh; lnL; Jh ch-ch- egkfUr½ fn;k x;k] ds lEcU/k esa izLrqr dh xbZ gS rFkk jsQjsUl la[;k % ,y-vkj- @296@02@tks/kiqj] jsQjsUl la[;k % ,y-vkj-@tks/kiqj@la[;k % 306@02] jsQjsUl la[;k ,y-vkj-@294@02@tks/kiqj esa ikfjr vknsk dks fujLr djus dh izkFkZuk dh xbZA fnukad 16-12-2003 dks bl izdj.k esa ,dyihB ds ekuuh; lnL; Jh fxjkZtflag }kjk dkuwuh fcUnq fufgr gksus ds dkj.k rhuksa Lisky vihyksa esa ^yho Vw Lisky vihy* ns nh xbZ Fkh ftlds dkj.k ;g izdj.k ,Mfeku ds lEcU/k esa fnukad 6-1-2004 dks izLrqr gqvkA ,Mehku ds lEcU/k esa cgl djrs gq, ljdkj dh vksj ls fo}ku vfHkHkk"kd Jh ts-ih- ekFkqj us Lisky vihy esa eseksa dh vksj /;ku vkdf"kZr fd;k vkSj fuosnu fd;k fd rglhynkj tks/kiqj ds vknsk fnukad 11-10-1989 dk gokyk nsrs gq, ukekUrjdj.k [kksyk x;k Fkk ijUrq ;g ik;k x;k fd okLro esa ml izdkj ds dksbZ Hkh vknsk fn;s gh ugha ik;s x;s Fks vkSj ukekUrjdj.k ,sls vknskksa dks mYysf[kr djrs gq;s [kksyk x;k tks okLro esa Fks gh ugha rks mUgha ukekUrjdj.kksa dks fujLr djus ds fy;s izdj.k vUrxZr /kkjk 82 jktLFkku Hkw jktLo vf/kfu;e] 1956 jktLo e.My dks Hkstk x;k FkkA ,dyihB us 1992 vkjvkjMh ist 356 dks n`f"Vxr dj os lkjs jsQjsUl [kkfjt dj fn;s x;s Fks D;ksafd ,dyihB us ;g ekuk Fkk fd ftu vknskksa dh ikyuk esa ukekUrjdj.k [kksyk x;k Fkk mu vknskksa dks fujLr ugha djk;k tk jgk rFkk ek= ukekUrjdj.k fujLr gks tkus ls dksbZ Hkh ykHk jkT; ljdkj dks ugha gksus okyk gS ftlds vk/kkj ij mUgksaus mDr rhuksa jsQjsUl [kkfjt dj fn;sA mUgksaus dgk fd rglhynkj dks [kkrsnkjh vf/kdkj nsus dh kfDr;ka ugha gS vkSj vknsk gh izkjfEHkd :i ls voS/k ,oa {ks=kf/kdkj foghu Fkk ftlds lEcU/k esa jsQjsUl dks Lohdkj fd;k tkuk pkfg;sA vr% mudh ;g Lisky vihy ,MehV dh tkos ftlls ,dyihB ds fu.kZ; fnukad 28-3-2003 dks ikfjr vknsk dks fujLr djk;k tk ldsA D;ksafd bu rhuksa foks"k vihyksa esa dkuwuh fcUnq ,d leku gS rFkk vihykUV Hkh jkT; ljdkj gS rFkk ,dyihB }kjk ikfjr rhuksa gh fu.kZ; ,d gh izdkj ds gS rFkk gd rhuksa vihyksa dks ,d gh vknsk ls fuLrkfjr dj jgs gSA vknsk dh ,d ,d izfr rhuksa i=kofy;ksa esa kkfey dh tkosA ,Mehku lEcU/kh cgl lquus ds ckn geus i=kofy;ksa dk voyksdu fd;kA loZizFke ge ;g ikrs gS fd ,dyihB ds }kjk fnukad 16-12-2003 dks ^^yho Vw Lisky vihy** fdlh dkuwuh fcUnqvksa dks fofk"V :i ls crk;s fcuk ns nh xbZ gS ftlds vHkko esa bl izdj.k esa D;k dkuwuh fcUnw gS] izFke n`"V;k gh le> esa ugha vkrk gSA tgka rd xq.kkoxq.k dk izu gS ogh jktdh; vfHkHkk"kd tgka rglhynkj }kjk fn;s x;s mu vknskksa dks izkjfEHkd :i ls voS/k rFkk fujLr crk jgs gS ogh mu vknskksa dh izfr;ka vkfn Hkh jsQjsUl Hkstrs gq, ,dyihB dks miyC/k ugha djkbZ xbZ vkSj u gh muds lEcU/k esa mu vknskksa dks fujLr djus dh dksbZ dk;Zokgh dh xbZ ftlds vk/kkj ij ,dyihB us mu vknskksa ds lEcU/k esa dksbZ dk;Zokgh u djk;s tkus ij jsQjsUl esa vk;s ukekUrjdj.k [kkfjt djus ls euk dj fn;k ftlesa dqN Hkh xSj dkuwuh ckr ugha gS rFkk og vknsk fcYdqy U;k;ksfpr gS rFkk orZeku Lisky vihy esa dksbZ dkuwuh fcUnq fufgr ugha gS rFkk ek= ikfjr vknskksa esa rF;ksa ds mYys[k ds vk/kkj ij Lisky vihy ,Mfeku djkus dh ps"Vk dh tk jgh Fkh ftldh vuqefr ge ugha ns ldrsA mijksDr foys"k.k ds vk/kkj ij ;g rhuksa gh Lisky vihysa ,Mehku LVst ij [kkfjt fd;s tkus ;ksX; gS vr% [kkfjt dh tkrh gS rFkk rhuksa gh izdj.kksa esa ,dyihB ds ekuuh; lnL; Jh ch-ch- egkfUr }kjk ikfjr vknsk fnukad 28-3-2003 cjdjkj j[kk tkrk gSA fu.kZ; [kqys U;k;ky; esa lquk;k x;kA g- g- ¼cnzhyky eh.kk½ ¼iadt½ lnL; lnL; (24). Bare perusal of the above judgments makes it clear that in judgment dated 28.3.03 & as well 23.1.04 the reference was rejected because the foundation order in compliance of which the mutation was sanctioned was not challenged in that reference. Though the learned Single Member could have exercised the powers conferred under Section 9 of the Act of 1956 or Section 221 of the Rajasthan Tenancy Act, 1955 and could have decided the matter on merits instead of rejecting the reference on this count. In judgment State vs. Lal Singh, RRD 1992 page 256 (supra), direction under Section 9 of the Act of 1956 were given to challenge the foundation order & mutation. On perusing the judgement of Single Bench dated 28.3.2003 & judgment of Division Bench in Special Appeal dated 23.1.04, it is crystal clear that the case has not been decided on merits and Special Appeal too has been rejected for technical defect of having no challenging foundation order. Therefore, the judgment of the Division Bench dated 23.1.04 in special appeal is not a judgment on merits after hearing the parties on the merit but simply rejecting the special appeal on the technical grounds. Therefore, in view of the legal pronouncement of Honble Supreme Court & other Courts referred to above the judgment of Division Bench in special appeal dated 23.1.2004 cannot be termed a precedent and is not binding on Single Bench in other cases. The Division Bench judgment dated 23.1.04 rejecting an appeal at admission stage without hearing the other parties purely on technical grounds is not at all a precedent. (25). Conclusion-On three questions referred to us our opinion is that: Question No. 1: Needs no opinion; the Single Member is competent to proceed. Question No. 2: Single Member is competent to decide the validity of foundation order as well as mutation after giving opportunity of hearing to the parties. Question No. 3: The Division Bench judgment dated 23.1.2004 is not a precedent and is not binding on Single Bench in other cases. Hence, these references be sent to the Learned Single Member with above referred opinion of the Larger Bench.