JUDGMENT :

Manindra Mohan Shrivastava, ACJ.

1. Heard.

2. This appeal is directed against order dated 31.01.2023 passed by the learned Single Judge by which the petition filed by the appellants, assailing the order of the Board of Revenue, has been dismissed.

3. Briefly stated, relevant factual matrix of the case for adjudication of controversy involved in this appeal is that the appellants had filed a suit for declaration and permanent injunction against respondents, which was decreed by the Revenue Court in the year 2004 and appeal was also dismissed. When the matter was taken in second appeal before the Board of Revenue, vide order dated 13.08.2004, the Board of Revenue remanded the case for re-trial directing two additional issues to be framed. That order was challenged before learned Single Judge, though unsuccessful. That is how this appeal has been preferred.

4. The decree passed in the Revenue Suit on 27.02.2004 shows that the Court at first instance had framed as many as five issues and on all those issues findings were recorded after giving the parties opportunity to lead oral and documentary evidence. The Appellate Court also dismissed the appeal.

5. The Board of Revenue, while considering on merits the second appeal, had recorded a finding that the case required two additional issues to be framed. One relates to the issue of possession and the other relates to accrual of khatedari rights by Mahant Shiv Prakash Chandra Bhattacharya vis-a-vis that of the deity Shri Sheela Mataji Amber. The basis for such a direction for re-trial with framing of two additional issues is that the trial court has not framed any issue with regard to possession, nor issue of adverse possession has been determined. Further, it has been stated that in the order that manner in which the res judicata has been decided is more or less perfunctory in nature without due consideration. Only on these two considerations, the Board of Revenue directed framing of two additional issues and directed re-trial.

6. In our opinion, the order passed by the Board of Revenue is clearly in excess of jurisdiction as also patently illegal and perverse in law. The judgment and decree of the learned trial court passed on 27.02.2004 clearly shows that not only an issue touching upon the possession was framed but also an issue of res judicata was also framed. This is clear from the issues framed by the trial court which are as below:

^^1- vk;k oknhx.k] nkos ds en ua0 esa of.kZr vjkth;kr ds [kkrsnkj dkLrdkj dh fMØh ikus ds gdnkj gS ,oa izfroknhx.k dks LFkkbZ fu"ks/kkKk ls ikcUn djkus ds vf/kdkjh gSaA

2- vk;k oknhx.k ds nkok nk;jh dk dkj.k fnukad 17&12&94 dks izfroknh }kjk iRFkjxh djkus ds dkj.k gqvkA

3- vk;k oknhx.k us ,d nkok LFkkbZ fu"ks/kkKk o izk0i= vLFkkbZ fu"ks/kkKk U;k;ky; gktk }kjk fnukad 20&2&97 dksa [kkfjt gks pqdk gS] o U;k;ky; gktk ds fu.kZ; dh vihy 29&7&99 dks [kkfjt gks pqdh gSA

4- vk;k vihysV dksVZ us vius fu.kZ; esa fookfnr Hkwfe ij dCtk] izfroknh la0 1 dk ekuk gS ] bl dkj.k oknhx.k nkok gktk esa ih vkbZ dhnknjlh ikuh ds gdnkj ugha gSA

5- vk;k oknhx.k ds firk ?khlk iq= ekaX;k ehikus o ?khlk us iwoZ esa U;k;ky; gktk esa okn Lfkk;h fu"ks/kkKk ,oa ?kks"k.kkRed is'k fd;k Fkk tks iwoZ esa [kkfjt gks pqdk gS o mDr fu.kZ; jslT;wfMdsV gS] o mDr okn dkuwuu pyus ;ksX; ugha gSA**

7. Issue No. 4 clearly related to an issue of possession. We also find that the learned trial court as also the appellate court both have gone into the issue of possession after taking into consideration the evidence on record and recorded their specific finding in this regard. We failed to understand how the Board of Revenue, in such a case, could invoke its jurisdiction to frame an additional issue when the issue relating to possession was not only framed but also determined, one way or the other. It was