- (1.)HEARD the learned counsel for the appellant.
(2.)THE petitioner/appellant has preferred this special appeal against order dated 29th February, 2012 passed by Single Bench, whereby writ petition filed by petitioner/appellant, against order of Division Bench of Revenue Board dated 25th January, 2012, has been dismissed.
Briefly stated, the facts of the case are that plaintiff/petitioner/appellant filed a suit No.1595/1996 on 15th July, 1996 in the court of Sub Divisional Officer, Aklera, District, Jhalawar under Sections 88, 91 and 188 of the Rajasthan Tenancy Act for declaration, permanent injunction and correction of entry in revenue record, against defendants/respondents Nos. 1 to 3, wherein it was pleaded that a land of Khasra No.39 measuring 2 Bighas & 2 Biswas situated in village Chand Khedi, Tehsil, Khanpur, was allotted to plaintiff by allotment committee on 23rd November, 1975 and possession was handed over to him. The land was mutated in the name of plaintiff vide mutation No. 175 dated 30th August, 1984. The said land has wrongly been recorded in the name of Forest Department, therefore, it be declared that plaintiff is a allottee/tenant of the aforesaid land and defendants be restrained not to dispossess the plaintiff from the land in dispute and further that they should not raise any construction over it.

Defendant No.1, Tehsildar, Khanpur remained absent despite service of summons, therefore, ex parte proceedings were drawn. Defendant No.2 filed its written statement, wherein it was pleaded that land in dispute was a Forest land and it was recorded in the name of Forest Department and it could not have been allotted to any one.

The trial court framed 11 issues. The defendants remained absent, therefore, ex-parte proceedings were drawn against them. Therefore, no evidence was led on behalf of defendants. It appears from the order of Revenue Appellate Authority dated 2nd January, 2012 that an application for setting aside the ex parte proceedings was filed by defendants in the trial court, but the same was dismissed and ex parte decree was passed, on 25th September, 2000.

Being aggrieved with the ex-parte decree, the defendants preferred an appeal, but the same was dismissed being barred by limitation by the Revenue Appellate Authority vide judgment dated 11th May, 2001. The said order was challenged by the defendants before Revenue Board by way of second appeal, which was allowed by the Revenue Board vide judgment dated 23rd March, 2011 and case was remitted to the court of Revenue Appellate Authority to treat the appeal in time and to decide the same on merits.

(3.)THEREAFTER, the Revenue Appellate Authority vide its judgment dated 2nd January, 2012 considered the case on merits and examined revenue record available on record. Ex.P1 is the copy of mutation, according to which, the land bearing Khasra No.39 measuring 2 Bighas & 2 Biswas was recorded in the name of Forest Department and name of plaintiff was recorded as tenant. Ex.P2 is the copy of Jamabandi i.e. document of title, according to which, land bearing Khasra No.39 measuring 51 Bighas & 15 Biswas was recorded in the name of Forest Department. Ex.P3 is the copy of Jamabandi and according to it, land bearing Khasra No.39 measuring 2 Bighas 2 Biswas was recorded in the name of Forest Department. Revenue Appellate Authority was of the view that the other documents are not available on record, therefore further evidence in the case is necessary. As per proceedings of the trial court dated 29th May 2000, ex parte proceedings were drawn against defendants as they were not present. The defendants filed an application for setting aside the ex parte proceedings, but their application was dismissed and an ex parte decree was passed on 25th September, 2000. In these circumstances, the Revenue Appellate Authority vide its judgment dated 2nd January, 2012 allowed the appeal of defendants in part and while setting aside the ex-parte judgment and decree dated 25th September, 2000 passed by the trial court, remitted the matter to the trial court for deciding the matter afresh, after affording an opportunity to the appellants i.e. defendants, to lead evidence and of hearing. Parties were directed to appear before the trial court on 13th February, 2012.
Being aggrieved with the order of remand passed by the Revenue Appellate Authority, the plaintiff/petitioner filed an appeal before Revenue Board, but the same was dismissed vide judgment dated 25th January, 2012, which was also challenged before the Single Bench by way of writ petition by petitioner, but the same was dismissed. Hence petitioner has preferred this intra-court appeal.

Submission of learned counsel for the appellant is that Single Bench as well as Revenue Board as also Revenue Appellate Authority committed an illegality in not considering the fact that the appeal could not have been remanded by Revenue Appellate Authority to the trial court for affording an opportunity to defendants to lead evidence as it amounts to converting the regular appeal into a proceedings for setting aside the ex parte proceedings/decree, which is not permissible in law. In support of his submissions, he relied upon Nagar Palika Nigam Gwalior vs. Motilal Munnalal (AIR 1977 Madhya Pradesh 182), which was followed by Single Bench of Punjab & Haryana High Court in Smt. Maya Devi & Ors. vs. Mehria Gram Dal Mill, Hissar & Ors. (AIR 1988 Punjab & Haryana 176). He also submitted that the land in dispute was allotted to petitioner in the year 1975. The suit was filed in the year 1996. The matter is pending since long, therefore, it was not appropriate to remand the matter after such a long period. In support of his submission, he referred P. Purushottam Reddy & Anr. vs. Pratap Steels Ltd. (2002 (2) SCC 686) and State of Punjab and Anr. vs. Gram Panchayat & Ors. (AIR 2002 SC 1365).