S.K.MAL LODHA, J. - (1.) BY this petition under Article 226 of the Constitution of India, petitioners Gurucharan Singh and 6 others seek to quash the order (Ex. 4) dated Nov. 9, 1978 of the Board of Revenue for Rajasthan, Ajmer (for short 'the Board' hereinafter), by which, it held that a revenue court has jurisdiction to try the suit filed by Smt. Shyam Kaur deceased, Smt. Gurdayal Kaur (respondent No. 1) and Smt. Jaswant Kaur (respondent No. 2) for declaration and possession, which was instituted against Gurucharan Singh and 10 others in the Court of Assistant Collector, Hanumangarh on Nov. 3, 1966.
(2.) A few facts leading to this petition may be noticed: Smt. Shyam Kaur widow of Hazur Singh (deceased), Smt. Gurdayal Kaur (plaintiff -respondent No. 1) and Smt. Jaswant Kaur (plaintiff -respondent No. 2) instituted a suit for cancellation of the decree dated March 7, 1963 passed in suit No. 7 of 1961 (Gurucharan Singh v. Hazur Singh) by the Assistont Collector, Hanumangarh on the ground that it was collusive and fraudulent and that Smt. Shyam Kaur (deceased) not being a party to Suit No. 7 of 1961 was not bound by that decree. It was also prayed in the plaint (Ex. 1) that a declaration may also he made with regard to the shares of the plaintiffs and Smt. Suchiyar Kaur (defendant -respondent No. 5) and after partition, possession of their shares may also be delivered to them. In the alternative, it was prayed that a decree for joint possession may be passed. The suit was contested on various grounds. One of the questions that arose and which forms the subject -matter of issue No. 5 is whether the suit is triable by a revenue court or it was triable by a civil court? The matter went up to the Board, for, the parties wanted that issue No. 5 relating to jurisdiction should be decided first. The Board, however, did not give any decision on issue No. 5 and, therefore, a writ petition was filed before this Court, which was decided by order dated April 2, 1970. The High Court while deciding that petition issued the following directions: 'The Board is, directed to re -hear the revision and in doing so, to take up issue No. 5 first of all as it relates to the question of jurisdiction. It is further directed that the Board should pass such fresh order as may be necessary in the circumstances of the case after deciding that issue.' The Board did not comply with the directions and when the matter came to its file, it remanded the case to the court of Assistant Collector. The Assistant Collector decided issue No. 4 which related to the consequences of not impleading the plaintiff No. 1 (Smt. Shyam Kaur) as party to the former suit in which the decree was obtained and which was challenged by the plaintiffs as collusive and fraudulent; A revision was filed against the decision of issue No. 4 before the Board, which was dismissed. Thereafter, the petitioners filed a writ petition insisting that the Board should be directed first to comply with the directions of this Court given in the order dated April 2, 1970 and it should be asked to decide issue No. 5 which relates to the jurisdiction. By order (Ex. 3) dated July 13, 1977, D. B. Civil Writ Petition No. 122 of 1977 (Gurucharan Singh v. Mst. Shyam Kaur) was accepted and the order of the Board dated Jan. 21, 1977 and the order of the Assistant Collector, Hanumangarh dated Aug. 7, 1976 were set aside and a direction was issued to the Board to re -hear the revision petition and in doing so to decide issue No. 5 first which relates to the jurisdiction and after deciding that issue, if it thinks that the matter was triable by the revenue court then it should pass such order after hearing the parties, which if may deem necessary in the circumstances of the case. By order (Ex 4) dated Nov. 9, 1978, the Board held that a revenue court has jurisdiction to entertain and try the suit and it, therefore, remanded the case to the Assistant Collector, Hanumangarh with a direction to decide the question of the effect of the partition decree dated March 7, 1963 in the suit and thereafter, if warranted to decide the other issues and the suit as a whole. The petitioners have challenged the order (Ex. 4) dated Nov. 9, 1978 in this writ petition and have prayed that a writ of certiorari may be issued for quashing it. No reply has been filed on behalf of the respondents.
(3.) WE have heard Mr. H.M. Parekh, learned counsel for the petitioners, Mr. B.N. Bishnoi, learned counsel for respondents Nos. 1 to 3 and Mr. H.N. Calla, learned Additional, Government Advocate.;