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2023 DIGILAW 640 (RAJ)

Ram Chandra v. Ramsahai

2023-03-02

ANIL KUMAR UPMAN, MANINDRA MOHAN SHRIVASTAVA

body2023
ORDER 1. Heard. 2. This appeal is directed against the order dated 05.04.2021 passed by the learned Single Judge whereby the learned Single Judge refused to interfere with the order of the Board of Revenue which remanded the case for trial afresh. 3. The appellant herein filed the writ petition under Article 226 & 227 of the Constitution of India on the pleadings inter alia that their existed a dispute with regard to right in respect of the land bearing Khasra No.247/333. The dispute remained unresolved and finally the appellant filed the suit before the Sub-Divisional Officer for declaration and correction of entries in revenue records that the appellants/writ petitioners are the rightful owners of the land in dispute which has been erroneously entered in the name of respondents. The suit was dismissed against which the revision was preferred before the Board of Revenue. As the pleadings stated, the Board of Revenue passed an order on 25.07.2011 in revision directing Assistant Collector/Executive Magistrate, Amer to decide the suit No.596/2002 and suit No.368/2007 simultaneously. Thereafter, the Assistant Collector stayed the proceedings of suit No. 596/2002 and suit No.368/2007 was transferred to Assistant Collector which was re-registered as Suit No.57/2016. Framing 21 issues, the Assistant Collector decided two suits and recorded that no case was made out for grant of any relief. The order was challenged before the Revenue Appellate Authority, Jaipur (RAA) [for short 'the RAA']. The appellate authority allowed the appeal vide order dated 07.08.2018 and directed that the name of the appellants be mutated in Khasra No.247/333 and to remove the name of the respondents. Aggrieved of the order passed by the RAA, the respondents preferred an appeal before the Board of Revenue which vide order dated 03.12.2020 set aside the judgment and decree dated 07.08.2018 passed by the RAA. Aggrieved of the aforesaid order of the Board of Revenue, the writ petitioners approached the High Court by filing writ petition which has been dismissed vide impugned order. 4. The appellant in person submits that the order passed by the RAA was unjust and improper and Board of Revenue remanded the case without deciding the matter on its own merits and without any case for remand being made out. 5. We have gone through the order passed by the Board of Revenue dated 03.12.2020 and the order passed by the learned Single Judge. 5. We have gone through the order passed by the Board of Revenue dated 03.12.2020 and the order passed by the learned Single Judge. Learned Single Judge in the impugned order has recorded that when the Board of Revenue was of the opinion that evidence available on record was not sufficient, it was justified in remanding the matter vide order dated 03.12.2020. 6. Learned Single Judge has taken into consideration the provisions and the principles under Order 41 Rule 23A CPC as to when the powers of remand could be exercised by the Appellate Court. 7. Powers relating to remand are contained in provisions under Order 41 Rule 23A of the CPC. While provisions contained in Order 41 Rule 23 CPC confer power on the Appellate Court to remand the case where the Court from whose decree an appeal is preferred has disposed off the suit upon preliminary point, under Order 41 Rule 23A CPC, it has been provided that where the Court from whose decree an appeal is preferred has disposed off the case otherwise than on preliminary point and decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23. The powers of remand thereafter have to be exercised within the four corners of the provisions contained under Order 41 Rule 23 CPC and Rule 23A of Order 41. The order passed by the Board of Revenue on 03.12.2020, which was assailed by filing the writ petition before the High Court reveals that the Board of Revenue recorded the finding in Paragraph 9 and 10 of its order that the Appellate Court while deciding the appeal mainly relied upon spot inspection report and further that only on the basis of the spot inspection report and without appreciation of other documentary evidence on record, appeal was decided. However, having recorded such finding, the Board of Revenue instead of deciding the appeal on its own merits one way or the other on the basis of conclusion recorded by it in Paragraph 9 and 10 of its order, remanded the case to allow the parties to lead evidence. 8. It is, thus, clear that the Board of Revenue exercised the powers of remand even though it was not a case, nor any finding was recorded that retrial was considered necessary. 8. It is, thus, clear that the Board of Revenue exercised the powers of remand even though it was not a case, nor any finding was recorded that retrial was considered necessary. If the First Appellate Authority decided the matter on the basis of oral and documentary evidence before it, the Board of Revenue was required to decide the appeal one way or the other. The powers of remand have been exercised by the Board of Revenue without a case of retrial having been made out and without recording any finding as to why retrial is considered necessary. On the contrary, finding recorded in Paragraph 9 and 10 are that the First Appellate Authority recorded the finding based on certain documentary evidence without considering other evidence on record. The Board of Revenue was of the view that spot inspection report could not be made a basis to grant relief in favour of the appellants. In the absence of there being a clear finding as to why retrial was considered necessary, remanding the case only to allow the parties to fill up lacunae in their case, is not permissible in law. 9. Apparently, the Board of Revenue exceeded its jurisdiction in remanding the case even though there was no specific finding as to why retrial is considered necessary. The Board of Revenue ought to have decided the appeal one way or the other on the basis of oral and documentary evidence on record as led by respective parties and the pleadings made by them rather than sending the case back for de novo trial. To that extent, Board of Revenue has failed to exercise jurisdiction vested in it by law and also committed patently illegality. 10. Learned Single Judge dismissed the writ petition by recording that Board of Revenue was of the opinion that evidence available on record was not sufficient. However, there is no such finding recorded by the Board of Revenue that the evidence which has been recorded was not sufficient. It appears that on this premise, which is factually not correct, the petition has been dismissed. 11. In view of above consideration, we are of the view that Board of Revenue exceeded its jurisdiction in remanding the case even though no case for remand was made out and failed to exercise the jurisdiction by not deciding the appeal on its own merits. 11. In view of above consideration, we are of the view that Board of Revenue exceeded its jurisdiction in remanding the case even though no case for remand was made out and failed to exercise the jurisdiction by not deciding the appeal on its own merits. In view of the aforesaid error of jurisdiction committed by the Board of Revenue, the order passed by the Board of Revenue cannot be sustained. 12. Consequently, the order passed by the learned Single Judge as also order of the Board of Revenue dated 03.12.2020 are set aside. The Board of Revenue is directed to decide the appeal on its own merits after consideration of pleadings based on oral and documentary evidence led by the respective parties. 13. The appeal is, accordingly, allowed.