1. Writ petition challenging Board of Revenue order restoring trial court decree after Revenue Appellate Authority remanded case without merits. (Para 1 , 2 )
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2026 Supreme(Raj) 442
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
Anuroop Singhi, J.
Chunki Devi Widow Of Hadmanaram - Petitioner
Versus
Singari W/o Late Shri Bhagwanaram - Respondent
S.B. Civil Writ Petition No. 3562 of 2026
Decided On : 18-03-2026
Important Points
A Second Appellate Authority cannot adjudicate a case on merits if the First Appellate Authority remanded the matter without recording findings on merits, as this bypasses the statutory appellate hierarchy and deprives the party of a first appeal on merits.
Subject
Civil Law - Revenue Law
Act Referred
Headnote
(A) Rajasthan Tenancy Act, 1955 - Sections 208, 224, 225, 227 - Code of Civil Procedure, 1908 - Sections 107 and 108, Order XLI Rules 24 and 33 - Challenge to order of remand - Scope of Second Appellate Authority - Where the First Appellate Authority sets aside a decree and remands the matter for fresh consideration without recording any findings on merits, the jurisdiction of the Second Appellate Authority is restricted to examining the legality and validity of the remand order - Any determination on merits by the Second Appellate Authority in such circumstances would lead to bypassing the First Appellate Authority and deprive the party of the statutory remedy of a first appeal on merits (Paras 16, 17, 18).
(B) Appellate Hierarchy - Maintenance of the hierarchy of appellate forums is necessary to prevent the travesty of justice and to ensure compliance with statutory provisions of appeal (Para 17).
Facts of the case:
A suit for declaration of rights and permanent injunction was decreed by the Trial Court. The First Appellate Authority set aside the judgment and decree and remanded the matter to the Trial Court for fresh consideration on merits and limitation, without recording any findings on the merits of the case. Both the petitioner and respondents challenged this remand order before the Second Appellate Authority. The Second Appellate Authority set aside the remand order and restored the Trial Court's decree after recording its own independent findings on the merits of the case.
Findings of Court:
The court found that because the First Appellate Authority had not adjudicated the evidence on merits, a determination on merits by the Second Appellate Authority would effectively bypass the first stage of the statutory appellate process. The provisions of the Code of Civil Procedure and the Rajasthan Tenancy Act do not permit the curtailment of the statutory remedy of a first appeal.
Issues: Whether the Second Appellate Authority can adjudicate a matter on merits and restore a trial court decree when the First Appellate Authority had remanded the case for fresh consideration without recording any findings on merits.
Ratio Decidendi: The court ruled that when an order of remand is challenged before a second appellate authority and the first appellate authority has not decided the matter on merits, the second appellate authority cannot substitute its own findings on merits. The only logical course is to set aside the remand order and direct the First Appellate Authority to decide the appeal on merits to maintain the statutory appellate hierarchy.
Result: Writ petition allowed; order of the Second Appellate Authority set aside and matter remanded to the First Appellate Authority to decide the appeal on merits.
(B) Appellate Hierarchy - Maintenance of the hierarchy of appellate forums is necessary to prevent the travesty of justice and to ensure compliance with statutory provisions of appeal (Para 17).
Facts of the case:
A suit for declaration of rights and permanent injunction was decreed by the Trial Court. The First Appellate Authority set aside the judgment and decree and remanded the matter to the Trial Court for fresh consideration on merits and limitation, without recording any findings on the merits of the case. Both the petitioner and respondents challenged this remand order before the Second Appellate Authority. The Second Appellate Authority set aside the remand order and restored the Trial Court's decree after recording its own independent findings on the merits of the case.
Findings of Court:
The court found that because the First Appellate Authority had not adjudicated the evidence on merits, a determination on merits by the Second Appellate Authority would effectively bypass the first stage of the statutory appellate process. The provisions of the Code of Civil Procedure and the Rajasthan Tenancy Act do not permit the curtailment of the statutory remedy of a first appeal.
Issues: Whether the Second Appellate Authority can adjudicate a matter on merits and restore a trial court decree when the First Appellate Authority had remanded the case for fresh consideration without recording any findings on merits.
Ratio Decidendi: The court ruled that when an order of remand is challenged before a second appellate authority and the first appellate authority has not decided the matter on merits, the second appellate authority cannot substitute its own findings on merits. The only logical course is to set aside the remand order and direct the First Appellate Authority to decide the appeal on merits to maintain the statutory appellate hierarchy.
Result: Writ petition allowed; order of the Second Appellate Authority set aside and matter remanded to the First Appellate Authority to decide the appeal on merits.
Legal Category Hierarchy
Advocates Appeared:
For the Petitioner: Mr. Amit Jindal Ms. Dipti Jindal Ms. Nitu Bhansali
For the Respondent: Mr. Prakhar Gupta, Mr. Harsh Dadhich, Mr. Sanjay Sharma, Ms. Praveshika Singh with, Mr. Raghav Mishra for, Mr. V.D. Gathala, AGC
For the Petitioner: Mr. Amit Jindal Ms. Dipti Jindal Ms. Nitu Bhansali
For the Respondent: Mr. Prakhar Gupta, Mr. Harsh Dadhich, Mr. Sanjay Sharma, Ms. Praveshika Singh with, Mr. Raghav Mishra for, Mr. V.D. Gathala, AGC
Table of Contents
2. Petitioner argued Board of Revenue could only set aside remand and direct first appeal on merits; respondents argued Board had power to decide merits. (Para 4 , 5 , 8 , 9 , 10 , 11 , 12 , 13 )
3. Board of Revenue cannot decide merits when first appeal was decided only on remand without merits, as it bypasses appellate hierarchy. (Para 15 , 16 , 17 , 18 , 19 , 20 )
4. Second appellate authority's power is restricted to examining remand order's legality; deciding merits bypasses first appellate remedy. (Para 16 , 17 , 18 , 19 )
5. Writ allowed; Board of Revenue order set aside; matter remanded to Revenue Appellate Authority for decision on merits within four months. (Para 21 , 22 )
6. Can a second appellate authority decide the merits of a case when the first appellate authority passed only a remand order without adjudicating on merits?
No. The second appellate authority's power is restricted to examining the legality of the remand order. Deciding merits would deprive a party of the statutory remedy of first appeal. (Para 16 , 17 , 18 , 19 )
7. What is the only logical order a higher court can pass when an appeal challenges a remand order from a first appellate court that did not decide on merits?
The only logical order is to set aside the remand order and direct the first appellate court to decide the appeal on merits, preserving the appellate hierarchy. (Para 17 , 19 )
8. Does the application of CPC provisions (Section 107, Order XLI Rules 24 and 33) to a second appellate authority allow it to decide the merits of a case when the first appeal was not decided on merits?
No. These provisions, while granting powers, cannot be interpreted to permit curtailment or deprivation of the statutory remedy of first appeal by deciding merits at second appellate stage. (Para 18 )
ORDER :
ANUROOP SINGHI, J.
1. The present writ petition has been filed by the petitioner being aggrieved by the order dated 03.02.2026 (Annexure-6) passed by the learned Board of Revenue Rajasthan, Ajmer (BOR in Appeal Decree/T.A. No. 782/2024/Sikar, whereby the learned BOR has set aside the order dated 31.01.2024 (Annexure-5) passed by the Revenue Appellate Authority, Sikar (RAA) and has restored the judgment and decree dated 04.09.2023 (Annexure-4) passed by the Assistant Collector-II, Sikar.
2. The relevant facts leading to filing of the present writ petition are that the original suit bearing Case No. 01/2009 was instituted by respondents No. 1 and 2 before the Assistant Collector-II, Sikar seeking declaration of rights, permanent injunction and correction of revenue entries and it came to be decreed vide judgment and decree dated 04.09.2023, whereby the respondents No. 1 and 2 were declared 1/3rd share holders each in land bearing Khasra Nos. 461, 462 and 464 and 1/24th share holders each in land bearing Khasra Nos. 475 and 476 situated in Village Gram Sevad Chhoti, Tehsil and District Sikar.
Being aggrieved, the petitioner preferred an appeal before the RAA, Sikar which was allowed vide order dated 31.01.2024, whereby the judgment and decree dated 04.09.2023 was set aside and without recording any finding on merits, the matter was remanded back to the Assistant Collector-II, Sikar for afresh consideration on merits, on the basis of oral and written evidence available on record and after framing an issue of limitation. Thereafter, the respondents No. 1 and 2 so also the petitioner preferred appeals against the order dated 31.01.2024 before the learned BOR, and vide impugned order dated 03.02.2026, while on one hand the appeal filed by the petitioner was dismissed, on the other hand the appeal filed by respondents No. 1 & 2 was allowed vide which not only the remand order passed by the RAA, Sikar dated 31.01.2024 was set aside, but even the judgment and decree dated 04.09.2023 was restored after recording findings on merits.
At this stage, it is relevant to note that vide order dated 31.01.2024, the RAA, Sikar had set aside the judgment and decree dated 04.09.2023 and remanded the matter back to the Assistant Collector-II, Sikar for afresh consideration, without recording any findings on merits.
3. Mr. Amit Jindal, learned counsel for the petitioner submits that as both the petitioner and respondents No.1 & 2 were aggrieved by the order dated 31.01.2024 passed by the RAA, Sikar vide which the matter was remanded back to the Assistant Collector-II, Sikar, respective appeals were filed before the learned BOR which were registered as Appeal No. 782/2024 titled as Singari & Ors. Versus Chunki Devi & Ors. and Appeal No. 954/2024 titled as Chunki Devi Versus Singari & Ors.
4. Learned counsel for the petitioner submits that though both the said appeals were filed under Section 225 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as ‘the Act of 1955’), the learned BOR has adjudicated the same by referring the said appeals to have been filed under Section 224 of the Act of 1955 as is evident from the inaugural paragraph of order dated 03.02.2026.
The primary argument raised by the learned counsel for the petitioner is that since the RAA, Sikar vide its order dated 31.01.2024 had not adjudicated the appeal on merits and had simply remanded the matter back to the Assistant Collector-II, Sikar for afresh adjudication, in the event the learned BOR was not in agreement with the findings arrived at by the RAA, Sikar, the maximum it could have done was to set aside the order dated 31.01.2024 and remand the matter back to the RAA, Sikar for afresh consideration. Under no circumstances, the suit could have been decreed while arriving at independent findings on merits.
5. Learned counsel further submits that passing of the impugned order has gravely prejudiced the rights of the petitioner, in as much as it has taken away the petitioner’s r
