ORDER : Dinesh Mehta, J. 1. The present writ petition has been directed against the order dated 01.07.2019 passed by the learned member of Board of Revenue, Rajsamand. 2. Briefly stated, the relevant facts are that against the mutation entry made in favour of petitioner way back in the year 1958, the respondent No. 2 filed a mutation appeal before the SDO (hereinafter referred to as the Trial Court) on 21.11.1997, along with an application under Section 5 of the Limitation Act. 3. Learned Trial Court vide its order dated 29.07.2005, allowed the appeal without considering the application under Section 5 of the Limitation Act, though the mutation appeal came to be filed after 40 years. 4. The abovesaid order was reversed by the Additional Divisional Commissioner vide its order dated 14.02.2007 and the same was affirmed by the Board of Revenue vide its order dated 07.02.2008, whereagainst the present petitioner preferred the writ petition being SBCWP No. 2122/2008. 5. The said writ petition filed by the petitioner came to be allowed by this Court vide its order dated 09.05.2008. While relying upon two judgments passed by Hon'ble the Supreme Court, the Court held that learned SDO was required to first decide the application under Section 5 of the Limitation Act, and then enter into the merits of the case. However, in the concluding para, instead of giving categorical finding, an observation regarding deciding the case on merit too was given. 6. The operative part of the above referred judgment dated 09.05.2008, is reproduced thus: "Consequently, the writ petition is allowed. The orders impugned are set aside and the respondent No. 4 is directed to first hear and decide the application seeking condonation of delay under Section 5 of the Limitation Act filed by the respondents keeping in view the merit of the case, within a month from the date of production of certified copy of this order and thereafter if the delay is condoned to hear and decide the appeal itself within one month therefrom. There shall be no order as to costs." 7. The matter, therefore, stood restored before the SDO, who vide its order dated 31.05.2011 found that the appeal was highly belated and there was no reason for condoning the delay. The application under Section 5 was, therefore, dismissed and consequently the mutation appeal too was dismissed. 8. There shall be no order as to costs." 7. The matter, therefore, stood restored before the SDO, who vide its order dated 31.05.2011 found that the appeal was highly belated and there was no reason for condoning the delay. The application under Section 5 was, therefore, dismissed and consequently the mutation appeal too was dismissed. 8. Against the order aforesaid dated 31.05.2011, the respondents preferred an appeal, which was allowed by learned Additional Divisional Commissioner vide its order dated 29.11.2012. 9. The Additional Divisional Commissioner, however, did not delve upon application under Section 5 of the Limitation Act and went on to observe that since the matter is strong on merit, the same should be decided on merit instead of going into the technical aspect of limitation. The appeal came to be partly allowed and the matter was remanded back to the SDO for decision afresh on merits of the case. 10. The present petitioner preferred a revision petition before the Board of Revenue against the order dated 29.11.2012 which was rejected by the learned member of the Board of Revenue vide its order dated 01.07.2019. 11. Mr. Kawadia, learned counsel for the petitioner while assailing orders dated 29.11.2012 and 01.07.2019, invited Court's attention towards the above reproduced operative part of the judgment dated 09.05.2008, passed by this Court and submitted that the SDO had rightly rejected application under Section 5 of the Limitation Act and thereafter, since the application under Section 5 of the Limitation Act was dismissed, the appeal too was dismissed. 12. According to him, learned Additional Divisional Commissioner has erred in remanding back the matter to the SDO for decision of the mutation appeal on merit, while not giving any finding on the application under Section 5 of the Limitation Act. He added that the Board of Revenue has also fallen into the same error and has upheld an illegal order passed by the Additional Divisional Commissioner dated 29.11.2012. 13. Learned counsel argued that the orders passed by Additional Divisional Commissioner (second appellate authority) so also by the Board of Revenue are clearly contrary to facts and against the settled procedure and deserve to be quashed and set aside. 14. Mr. 13. Learned counsel argued that the orders passed by Additional Divisional Commissioner (second appellate authority) so also by the Board of Revenue are clearly contrary to facts and against the settled procedure and deserve to be quashed and set aside. 14. Mr. Rajesh Choudhary, learned counsel appearing for respondents also referred to the directions contained in the judgment dated 09.05.2008 and submitted that this Court had clearly directed the Trial Court to consider not only the aspect of delay but also the merit of the case and then take a decision in accordance with law. He argued that the learned Additional Divisional Commissioner has committed no error in remanding the matter back to the SDO, with a direction to decide the mutation appeal on merit of the case. 15. According to Mr. Choudhary, unless the merit of the case is examined, right of an appellant cannot be determined solely on the basis of delay. 16. Heard learned counsel for the parties and perused the record. 17. Having regard to the fact that the parties have been litigating for almost about 25 years in relation to mutation entry that too was made in 1958, instead of admitting the petition and deferring the hearing for another decade, with the consent of the parties, the matter was finally heard, also because the controversy lies in a very narrow compass. 18. This Court is of the considered view that the rights of the parties are to be governed by the order dated 09.05.2008, passed by this Court in the petitioner's earlier writ petition (SBCWP NO. 2122/2008) which has attained finality. 19. The intention of the High Court while deciding the earlier writ petition appears to be that the SDO would first consider the application under Section 5 of the Limitation Act and then enter into the merit of the case. But, in the operative portion, an observation has been made that the Trial Court will decide the application under Section 5 of the Limitation Act, while keeping in view the merit of the case. 20. The effect of the order dated 09.05.2008 is, that the SDO would consider application under Section 5 of Limitation Act, so also the merit of the case. The SDO found the condonation application to be lacking merit and hence, proceeded to dismiss the application and the appeal both. 20. The effect of the order dated 09.05.2008 is, that the SDO would consider application under Section 5 of Limitation Act, so also the merit of the case. The SDO found the condonation application to be lacking merit and hence, proceeded to dismiss the application and the appeal both. But then, as per the mandate of the High Court contained in its order dated 09.05.2008, he was required to consider the case on merit as well. 21. The Additional Divisional Commissioner (the second appellate authority) has also gone wrong in recording findings on merit of the case without even setting aside the order of the SDO dated 31.05.2011, vide which respondents' mutation appeal had been rejected on the ground of delay. Then in that case, the Additional Divisional Commissioner was required to record its finding about acceptance of application seeking condonation of delay in filing the appeal. He could either allow the application or reject the same. Unless delay in filing the appeal was condoned by the Additional Divisional Commissioner, he could not have remanded the matter back to the Trial Court. 22. Learned member of the Board of Revenue has erroneously affirmed such an order passed by the Additional Divisional Commissioner. 23. In view of the aforesaid, the writ petition is partly allowed. 24. Order passed by the Additional Divisional Commissioner dated 29.11.2012 so also the order of Revenue Board dated 01.07.2019 are hereby quashed and set aside. 25. In light of the order passed by this Court on 09.05.2008, the matter stands remanded back to the SDO, who shall first decide the application under Section 5 of the Limitation Act and even if he is of the view that the application for condonation of delay deserves to be rejected, then also, he shall record a finding on the merit of the case so that, if any of the higher authorities deem it appropriate to condone the delay or otherwise, the matter can thereafter be examined on merit, instead of remanding the matter back again for considering it on merit. 26. The learned SDO is directed to decide mutation appeal, as early as possible, preferably before 30.06.2022. 27. The aforesaid order has been passed while keeping in view the dispute regarding enforcement of the order dated 09.05.2008 passed by this Court in petitioner's earlier writ petition. 26. The learned SDO is directed to decide mutation appeal, as early as possible, preferably before 30.06.2022. 27. The aforesaid order has been passed while keeping in view the dispute regarding enforcement of the order dated 09.05.2008 passed by this Court in petitioner's earlier writ petition. The same therefore, shall not be a precedent to be followed in any other case, as the basic law on the subject is, that if the application under Section 5 of the Limitation Act is rejected, then the authority is not required to go into the merit of the case. 28. Stay application also stands disposed of accordingly.