YADAV, J. - (1.) THE present writ petition has been filed to quash the impugned order dated 6. 12. 93 Annexure 3 to the writ petition passed by Revenue Appellate Authority and order dated 23. 5. 96, Annexure-4, passed by Board of Revenue.
(2.) THE present writ petition is posted today for admission, but with the consent of learned counsel for the parties I propose to decide it on merits. Indisputably, the petitioners filed a revenue suit before Sub Divisional Officer, Kota under sections 88, 89, 91 and 188 of Rajasthan Tenancy Act, 1955 along with an application under section 212 of the said Act, for injunction. It is not disputed before me that the Sub Divisional Officer granted ex parte ad interim temporary injunction only upto 24. 11. 93 with a direction to issue notices to the respondents to put forth their claim for final decision of the aforesaid application of temporary injunction under section 212 of the Rajasthan Tenancy Act. It is amazing to note that respondent No. 4, instead of appearing before Sub Divisional Officer and filing an objection, opposing interim temporary injunction granted by Sub Divisional Officer, filed an appeal before Revenue Appellate Authority. The Revenue Appellate Authority mechanically without applying his mind to the facts and circumstances, vide his order dated 6. 12. 93 has set aside the order of the Sub Divisional Officer dated 11. 10. 93 which was not in existence on the aforesaid date i. e. 6. 12. 93. After setting aside non existent order dated. 11. 10. 93, the Revenue Appellate Authority, instead of remanding the case to the Sub Divisional Officer, passed a fresh final order on merits on the application under Section 212 of Rajasthan Tenancy Act and partly allowed the appeal. The present petitioners filed a revision before the Board of Revenue and Board of Revenue mechanically upheld the order passed by Revenue Appellate Authority, without applying its judicial mind to the facts and circumstances of the present case. Aggrieved against the aforesaid orders dated 6. 12. 93 passed by Revenue Appellate Authority and order dated 23. 5. 96 passed by the Board of Revenue, the present writ petition has been filed under Article 226 of the Constitution of India.
(3.) I have heard learned counsel for the parties at length and perused the orders impugned, passed by Revenue Appellate Authority and Board of Revenue. It is amusing to note that when the appeal came up for final hearing before the Revenue Appellate Authority on 6. 12. 93 ex parte interim injunction order granted by Sub Divisional Officer vide his order dated 11. 10. 93 has already come to an end and has outlived its utility. Thus, order passed by the Sub Divisional Officer, on 11. 10. 93, was not in existence on 6. 12. 93, when the appeal was taken up for hearing, by Revenue Appellate Authority, and as such question of its setting aside does not arise. In such a situation, the Revenue Appellate Authority ought to have dismissed the appeal having become infructuous instead of passing fresh final order on merits on the application moved under Section 212 of Rajasthan Tenancy Act, depriving the parties to get their respective claims finally decided on merits at first instance by Sub Divisional Officer, Kota, under the aforesaid Section. It is conceded by the learned counsel for the parties that Revenue Appellate Authority as well as Board of Revenue mechanically set aside the order dated 11. 10. 93, passed by Sub Divisional Officer and passed final order on merits on the application moved under Section 212 of Rajasthan Tenancy Act, which was required to be decided at first instance by the Sub Divisional Officer, Kota. It is held that in the present case both the parties are entitled to have a final decision on merits under section 212 of Rajasthan Tenancy Act at the first instance by Sub Divisional Officer, Kota, within the meaning of aforesaid section. The Revenue Appellate Authority and Board of Revenue have no jurisdiction to ignore the mandatory provisions envisaged under section 212 of Rajasthan Tenancy Act which provides final decision on merits by Sub Divisional Officer, at first instance. ;