RAHIM BUX Vs. BOARD OF REVENUE

JUDGEMENT

(1.) PETITIONER has submitted above petition for setting aside/modifying the order passed by this Court on 6/11/1989 by which D. B. Civil Writ Petition No. 3643 of 1989 was disposed-of.

(2.) THE petition has arisen in the circumstances stated hereinafter. Rahim Bux petitioner had filed suit No. 70/1985 against Mst. Sayra and two others under sections 91 and 188 of the Rajasthan Tenancy Act for injunction against the defendants. Likewise, Smt. Sayra also filed suit No,. 265/81 (20/77) against Rahim Bux, present petitioner, for possession of the land in dispute. THE Sub Divisional Officer, Sriganga Nagar dismissed both the suits vide common order dated 12/5/86. Both the parties preferred appeals before the Revenue Appellate Authority who by a common judgment dated 26/5/1989 dismissed the suit filed by the petitioner Rahim Bux and decreed the suit filed by Smt. Sayra, respondent. Petitioner filed a second appeal before the Board of Revenue challenging the judgment and decree passed against him and claimed an interim order staying the execution of decree passed against him. In the first instance on 1/6/1989, the Board of Revenue had passed an interim order in favour of the petitioner staying the execution of the decree under appeal. However, it was brought to the notice of the Board of Revenue that before the interim order was passed on 1/6/89, the decree under appeal was already executed on 31/5/89 by delivering the possession of the land in dispute to Smt. Sayra and a report about the execution of the decree was also placed on record. Petitioner contended that inspite of the report of the execution of the decree, he continues to be in actual physical possession of the disputed land and, therefore, the execution of decree, reported to have taken place on 31/5/89, be ignored and he be allowed to continue in possession by staying execution of the decree. This contention of the petitioner did not find favour with the Board of Revenue as the Board was of the view that the decree having been executed on 31/5/1989, the interim order passed by the Board of Revenue on 1/6/89 was infructuous and the execution of decree under appeal cannot be stayed.

(3.) MR. MRidul, learned counsel for the petitioner submits that present petition cannot properly be termed as Review Petition. He contends that while first petition was disposed-of as review petition, present petition is a misc. petition under Article 226 of the Constitution and has been preferred independently as a consequence of the direction contained in order of Hon'ble Supreme Court. This petition is unaffected by any previous petition. He also contends that since earlier petition was not decided on merits, subsequent petition on the same ground is not barred and powers of the Court under Art. 226 are plenary and ought to be exercised to do justice uninhibited by any plea of technicalities. He places reliance on a decision of their lordships of the Supreme Court in Dwarka Nath vs. Income-tax Officer, Special Circle, D Ward, Kanpur and anr. (l ).