1. The prayer in the present writ petition is to set aside the order dated 25/05/2016 passed by the Board of Revenue vide which the order dated 23/01/2012 passed by the Divisional Commissioner was upheld as well as order dated 23/01/2012 passed by the Divisional Commissioner setting aside the order dated 04/10/2004 passed by the Tehsildar directing that the mutation number be entered in the name of the petitioner.

2. While praying for setting aside the impugned orders, learned counsel for the petitioner raised three fold arguments.

3. Firstly, the order passed by the Divisional Commissioner dated 23/01/2012 was without jurisdiction as per Section 75 of the Rajasthan Land Revenue Act, 1956. The appeal against the order of Tehsildar was maintainable before the Collector but in the present case, the appeal was decided by the Divisional Commissioner, who had no jurisdiction.

3. Secondly, the respondents are aggrieved with the Will on the basis of which the mutation was entered in the name of the petitioner. The entry of the mutation on the basis of the Will could have only been set aside, in case a finding with respect to the said Will was recorded by a Civil Court or the same was challenged before the Civil Court. Admittedly, the respondents did not challenge the same before the Civil Court.

4. Thirdly, As per Section 63(4) of the Rajasthan Tenancy Act, 1955, tenancy stands extinguished after the expiry of the limitation period for taking possession. As per Schedule III of the said Act, the trespasser can be ejected in pursuance to Section 183 only within twelve years. In the present case, the petitioner is in possession since the year 1991 and till date, no action has been taken against him. Thus, tenancy rights of the respondents being extinguished, no purpose would be served in setting aside the order of mutation. Hence, the order passed by the Tehsildar should be upheld.

5. Learned counsel for the respondents, however, while vehemently opposing the same, submitted that the Tehsildar has passed two orders. The first order dated 04/10/2004 was passed only directing that the mutation “may be” entered and hence the same was not a final order. The respondents also challenged the order vide which the mutation was entered in the name of the petitioner. This order no doubt, was only appealable before the Collector but the first order being not a final order was rightly challenged before the Divisional Commissioner.

6. Learned counsel for the parties were heard at length.

7. The order dated 04/10/2004 passed by the Tehsildar directing that the mutation be entered in the name of the petitioner culminated in the subsequent order vide which the order dated 04/10/2004 stood complied with in its letter and spirit. It was nothing, but a final order. Hence, the appeal against the said order was maintainable only before the Collector in terms of Section 75 of the Rajasthan Land Revenue Act, 1956, which reads as under :-

“75. First Appeals-(1) Save when otherwise provided in this Act, a first appeal shall lie -

[(a) to the Collector from an original order passed by a Tehsildar in matters not connected with settlement or land records,

(b) to the (revenue appellate authority) from an original order passed by an Assistant Collector or a Sub-Divisional Officer or a Collector in matters not connected with settlement,]

(c) to the Settlement Officer from an original [xxx] order passed by a revenue court or officer subordinate to him.

(d) to the Land Records Officer from an original [xxx] order passed by a revenue court or officer subordinate to him,

(e) to the Settlement Commissioner from an original [xxx] order passed by a Settlement Officer or by a Collector in matters connected with Settlement,

(f) to the Director of Land Records from an original [xxx] order passed by a Land Records Officer in matters connected with land records, and

(g) to the Board from an original [xxx] order passed by the [Commissioner or Additional Commissioner, or the] [revenue appe