ORDER :

Dinesh Mehta, J.

1. The present writ petition has been directed against the order dated 01.07.2019 passed by the learned member of Board of Revenue, Rajsamand.

2. Briefly stated, the relevant facts are that against the mutation entry made in favour of petitioner way back in the year 1958, the respondent No. 2 filed a mutation appeal before the SDO (hereinafter referred to as the Trial Court) on 21.11.1997, along with an application under Section 5 of the Limitation Act.

3. Learned Trial Court vide its order dated 29.07.2005, allowed the appeal without considering the application under Section 5 of the Limitation Act, though the mutation appeal came to be filed after 40 years.

4. The abovesaid order was reversed by the Additional Divisional Commissioner vide its order dated 14.02.2007 and the same was affirmed by the Board of Revenue vide its order dated 07.02.2008, whereagainst the present petitioner preferred the writ petition being SBCWP No. 2122/2008.

5. The said writ petition filed by the petitioner came to be allowed by this Court vide its order dated 09.05.2008. While relying upon two judgments passed by Hon'ble the Supreme Court, the Court held that learned SDO was required to first decide the application under Section 5 of the Limitation Act, and then enter into the merits of the case. However, in the concluding para, instead of giving categorical finding, an observation regarding deciding the case on merit too was given.

6. The operative part of the above referred judgment dated 09.05.2008, is reproduced thus:

"Consequently, the writ petition is allowed. The orders impugned are set aside and the respondent No. 4 is directed to first hear and decide the application seeking condonation of delay under Section 5 of the Limitation Act filed by the respondents keeping in view the merit of the case, within a month from the date of production of certified copy of this order and thereafter if the delay is condoned to hear and decide the appeal itself within one month therefrom. There shall be no order as to costs."

7. The matter, therefore, stood restored before the SDO, who vide its order dated 31.05.2011 found that the appeal was highly belated and there was no reason for condoning the delay. The application under Section 5 was, therefore, dismissed and consequently the mutation appeal too was dismissed.

8. Against the order aforesaid dated 31.05.2011, the respondents preferred an appeal, which was allowed by learned Additional Divisional Commissioner vide its order dated 29.11.2012.

9. The Additional Divisional Commissioner, however, did not delve upon application under Section 5 of the Limitation Act and went on to observe that since the matter is strong on merit, the same should be decided on merit instead of going into the technical aspect of limitation. The appeal came to be partly allowed and the matter was remanded back to the SDO for decision afresh on merits of the case.

10. The present petitioner preferred a revision petition before the Board of Revenue against the order dated 29.11.2012 which was rejected by the learned member of the Board of Revenue vide its order dated 01.07.2019.

11. Mr. Kawadia, learned counsel for the petitioner while assailing orders dated 29.11.2012 and 01.07.2019, invited Court's attention towards the above reproduced operative part of the judgment dated 09.05.2008, passed by this Court and submitted that the SDO had rightly rejected application under Section 5 of the Limitation Act and thereafter, since the application under Section 5 of the Limitation Act was dismissed, the appeal too was dismissed.

12. According to him, learned Additional Divisional Commissioner has erred in remanding back the matter to the SDO for decision of the mutation appeal on merit, while not giving any finding on the application under Section 5 of the Limitation Act. He added that the Board of Revenue has also fallen into the same error and has upheld an illegal order passed by the Additional Divisional Commissioner d