Subhash Hiraman Jandhade v. The State of Maharashtra

5. M/s. Thakker Developers and others had preferred WP No.17337 of 2024 assailing the order dated 27 September 2024 passed by the Minister. The said WP was withdrawn on 18 February 2025.

6. Mr. Kiran Kale – Respondent No.45C in Revision Application No.3019/10232 before the Minister and others, had preferred WP No.3609 of 2025 assailing the impugned order. By an order dated 12 March 2025, a learned Single Judge of this Court was persuaded to dismiss the said Writ Petition observing, inter alia, that in the absence of material to show that the impugned order materially deviates from the terms of the decree, no case for interference was made out.

7. Being aggrieved, Kiran Kale and Ors. - the Petitioners in WP No.3609 of 2025 preferred SLP(C) Diary No.14581 of 2025 before the Supreme Court. By an order dated 19 May 2025, the Supreme Court dismissed the SLP observing that having considered the matter and the directions by which the Petitioners were aggrieved, the Court did not find any reason to interfere with the order passed by the High Court.

8. Mr. Milind Kale – Petitioner in WP No.10915 of 2025 filed a Review Petition (ST) No.17188 of 2025 in the said WP No.3609 of 2025. By an order dated 8 July 2025, learned Single Judge of this Court disposed the Review Petition clarifying that the rights and remedies available to the review Petitioner in law remained unaffected by the order dated 12 March 2025 in WP No.3609 of 2026 and the Review Petitioner shall be at liberty to pursue such remedies independently and in accordance with law. Submissions:

9. In the backdrop of the aforesaid facts, the nature of the challenge and the developments in the interregnum, I have heard Mr. Nitin Thakkar, learned Senior Advocate for the Petitioner in WP No.9854 of 2025, Mr. Nikhil Sakhardande, learned Senior Advocate for the Petitioner in WP No.10519 of 2025, Mr. Pradeep Thorat, learned Counsel for the Petitioners in WP No.10412 of 2025, Mr. Mayur Khandeparkar, learned Counsel for the Petitioner in WP No.10350 of 2025, Mr. Priyansh Jain, learned Counsel for Petitioners in WP No.10347 of 2025, Mr. Prasad Dani, learned Senior Advocate for Respondent Nos.[4] and 5 in WP No.9854 of 2025, Mr. Atul Damle, learned Senior Advocate for Respondent Nos.[8] and 9 in WP No.10350 of 2025, Mr. Surel Shah, learned Senior Advocate for Respondent Nos. 4 and 5 in WP No.10345 of 2025, Mr. S.M.Gorwadkar, learned Senior Advocate for Respondent Nos.[5] and 6 in WP No.10347 of 2025 and for Respondent Nos.[7] and 8 in WP No.10412 of 2025, at some length.

10. Learned Counsel for the parties took the Court through the pleadings, the judgment and order in SCS No.26 of 1949 and the FA No.129 of 1951, the orders passed by the revenue authorities, and the orders passed by this Court in various proceedings after the impugned order was passed by the Minister in Revision Application.

11. Mr. Nitin Thakkar, learned Senior Advocate for the Petitioner, would urge that the impugned orders passed by the Minister overreach the determination by the civil court. The Minister unjustifiably and completely ignored the primary fact that the decree was passed by the High Court in the FA No.129 of 1951, on the basis of the compromise arrived at between the parties. It was, therefore, not open for the predecessors-in-title of Respondent Nos.[1] to 5 to mount the challenge to the compromise decree in an indirect manner. Taking the Court through the decree passed in FA No.129 of 1951, Mr. Thakkar strenuously urged that the parties had in terms agreed that the possession of Survey No.80/3 was to be given to the Plaintiffs in its entirety. Thus, there was no question of sending the decree for partition qua Survey No.80/3. The Plaintiffs were given 1/4th share of land out of Survey No.867/1 and 867/2. Decree was required to be sent to the Collector for partition under Section 54 of the Code of Civil Procedure, 1908, for effecting partition only in respect of Survey Nos.867/1 and 867/2. Therefore, at no point of time, Survey No.80/3 was the subject matter of the dispute. Yet, by the impugned orders, the mutation of the names of the predecessors-in-title of the Petitioners to Survey No.80/3 was sought to be reopened, and, consequently, the names of the Petitioner in WP No.9854 of 2025 and the successors in interest over the portions of Survey No.80/3 have been illegally deleted.

12. Mr. Thakkar would urge that the partition was already effected by the Tahasildar on 13 January 1992. The mere fact that the area of the land allotted to the share of the Plaintiffs and Defendants did not mathematically commensurate with their respective shares could not have been the sole barometer for deciding the correctness of the partition. Laying emphasis on the differential assessment of land bearing Nos.867/1B and 1A and 867/2 shown in the partition chart, Mr. Thakkar submitted that the area of the land was adjusted to ensure equitable partition keeping in view the quality and fertility of the land. In this view of the matter, the Minister could not have set aside the partition chart and reopened the matter; which stood settled, by adopting an over-simplistic approach.

13. Mr. Thakkar submitted that the order passed by the executing Court on the applications (Exh.190 and 199) to the effect that the partition was duly effected and the possession of the respective portions of the suit lands stood delivered, and, therefore, nothing survived in the execution proceedings, was never challenged. Thus, by the impugned order, the Minister could not have reopened the issues which stood finally settled by the orders of the Civil Court.

14. At any rate, Mr. Thakkar would urge, the execution of the decree qua Survey No.80/3, which was allotted under the consent terms to the Plaintiffs exclusively, could not have been reopened under any circumstances. Therefore, the fact that the Petitioner had earlier filed writ petition, and, in the wake of the pendency of the review petition before the Minister, withdrawn the said writ petition, would not be an impediment to decide the legality, propriety and correctness of the impugned order in these petitions.

15. Mr. Nikhil Sakhardande, learned Senior Advocate for the Petitioner in WP No.10519 of 2025, would urge that the challenge to the inequitable partition, if any, could have been raised before the Civil Court only. The controversy was set at rest by the Civil Court by disposing of the execution petition. It was, therefore, not open for the Respondents to reagitate the said contention before the Revenue Minister.

16. Mr. Pradeep J. Thorat, learned Counsel for the Petitioners in WP No.10412 of 2025 supplemented the submissions of Mr. Thakkar. It was submitted that the Petitioners were the bonafide purchasers for value of the plots of land out of the sanctioned layout. By a stroke of pen vide ME No.118568, all the previous entries were deleted by the Circle Officer. Mr. Thorat reiterated that the partition was to be effected by the Collector qua the land bearing Survey No.867/1 and 2 only. There was no occasion to delete mutation entry in respect of the portions of the land carved out of Survey No.80/3.

17. Mr. Mayur Khandeparkar, learned Counsel for the Petitioners in WP No.10350 of 2025, submitted that the Petitioners were not the parties to the proceedings before the Minister. In any event, the Petitioners were entitled to independently challenge the impugned orders to the extent they bear upon Suit land bearing Survey No.80/3. It was submitted that, even the order dated 12 March 2025 passed by this Court in WP No.3609 of 2025 does not preclude the Petitioners from assailing the legality, propriety and correctness of the impugned orders.

18. Mr. Prasad Dani, learned Senior Advocate for Respondent Nos.[4] and 5 in WP No.9854 of 2025 countered the submissions on behalf of the Petitioners. Mr. Dani would urge that the Petitioners have resorted to multiple proceedings to assail the order passed by the Minister in the Revision Application No.3019/10232/Pra.Kra.240/J-6, simultaneously. On the one hand, a review application was filed before the Minister. On the other hand, WP No.17337 of 2024 was filed by M/s. Thakkar Developers and others. Interestingly, WP No.17337 of 2024 was withdrawn on 18 February 2025 unconditionally, without seeking liberty to file a fresh Petition, and, yet, the Petitioners in WP No.17337 of 2024 have filed Petition assailing the very same order passed by the Minister in Revision Application No.3019/10232/Pra.Kra.240/J-6. On this count alone, the Petition at the instance of the Petitioners who had filed WP No.17337 of 2024 and withdrawn the same, is liable to be dismissed in limine.

19. Another set of the Respondents in Revision Application No.3019/10232/Pra.Kra.240/J-6 before the Minister, filed WP No.3609 of

2025. By an order dated 12 March 2025 the said WP was dismissed by this Court by recording reasons. The said order was further assailed in SLP(C) Diary No.14581 of 2025, which came to be dismissed by the Supreme Court by an order dated 19 May 2025 after recording reasons. In view of the dismissal of the SLP, Mr. Dani would urge that, the doctrine of merger would come into play with full force and vigour, as the order passed by this Court in WP No.3609 of 2025 dated 12 March 2025 dismissing WP No.3609 of 2025, in which the very same order passed by the Minister was assailed, merged with the order passed by the Supreme Court in SLP(C) Diary No.14581 of

2025. It is, therefore, not open for any of the Respondents in Revision Application No.3019/10232/Pra.Kra.240/J-6, before the Minister, to assail the order passed by the Minister in the said Revision Application.

20. Mr. Dani would submit that, it is not imperative that the SLP should be dismissed by recording elaborate reasons or after granting leave to appeal. Even a one line reason for the dismissal of the SLP is sufficient to invoke the doctrine of merger. To buttress this submission, Mr. Dani placed reliance on the judgments of the Supreme Court in the cases of Kunhayammed and Ors. V/s. State of Kerala and Anr.1, Commissioner of Central Excise, Delhi V/s. Pearl Drinks Ltd.[2] and Gangadhara Palo V/s. Revenue

21. Mr. Dani would further submit that, even on the merits of the matter, the impugned orders do not warrant any interference in exercise of the writ jurisdiction. It was submitted that the manner in which the partition was effected by the revenue authorities stares in the face. Attention of the Court was invited to the partition chart, especially the partition of the land bearing Survey No.867/2. Mr. Dani would urge, under the said partition chart, land bearing Survey No.867/2 was surprisingly kept joint amongst the Plaintiffs and Defendants. In effect, there was no partition of the land bearing Survey No.867/2 in terms of the consent decree. In that context, the Plaintiffs had claimed in the year 2006 that the possession of their share of the suit lands was yet not delivered to the Plaintiffs – decree holder, and, therefore, they had resisted the disposal of the execution proceeding. There is no explanation as to why land bearing Gat No.867/2 was kept joint amongst the Plaintiffs and Defendants. If considered in the context of the fact that the Plaintiffs were entitled to only 1/4th share in the lands bearing Survey No.867/1 and 867/2, allotment of an area admeasuring 2H 63 R to the Plaintiffs was clearly beyond the entitlement of the Plaintiffs. These factors were completely ignored by the revenue authorities and that error was rightly corrected by the Minister.

22. Mr. Dani submitted that while effecting partition of the land bearing Survey Nos.867/1 and 867/2 in accordance with the shares determined by the Civil Court, even the land bearing Gat No.80/3 would be required to be taken into account for an equitable partition. Therefore, the submission on behalf of the Petitioners that the land bearing Survey No.80/3 was not the subject matter of the proceedings before the revenue authorities, is not sustainable. As the order passed by the State Government has been implemented and the partition of the suit lands in accordance with the terms of the decree has to be given effect to afresh, no prejudice would be caused to the Petitioners, submitted Mr. Dani.

23. Mr. Gorwadkar, learned Senior Advocate for Respondent Nos.[5] and 6 in WP No.10347 of 2025 and Respondent Nos.[7] and 8 in WP No.10412 of 2025 supplemented the submissions of Mr. Dani. Mr. Gorwadkar would urge that the Petitioners cannot draw any mileage from the fact that the executing Court had disposed of the execution proceeding. As the partition was to be effected by the revenue authorities and it was, in fact, not effected, the order of the executing Court recording that the partition has been effected by Tahasildar was, in a sense, a nullity. Once the decree for partition of the land assessable to the revenue is sent to the Collector for partition under Section 54 of the Code, till the land is finally partitioned, the orders passed by the revenue authorities can be assailed only before the authorities under the Land Revenue Code. Reliance was placed on a Division Bench judgment of this Court in the case of Paygonda Surgonda Patil V/s. Jingonda Surgonda Patil[4].

24. Mr. Damle, learned Senior Advocate for Respondent Nos.[8] and 9 in WP No.10350 of 2025 also supported the impugned orders.

25. Mr. Thakkar, learned Senior Advocate for the Petitioner in WP No.9854 of 2025 joined the issue by canvassing a submission that, in the facts of the case, the doctrine of merger does not apply. Though the Petitioners’ names were mutated to the record of rights of the subject lands, pursuant to the registered sale deeds, yet, the Petitioners were not impleaded as party Respondents in the proceedings before the Minister. At any rate, having regard to the nature of the order dismissing SLP, it cannot be said that the order passed by this Court in WP No.3609 of 2025 merged with the order passed in SLP(C) Diary No.14581 of 2025.

26. In any event, the Petitioners having purchased the subject lands under the registered instruments have an independent right to assail the order passed by the Minister. The withdrawal of the earlier WP No.17337 of 2024 was on account of the pendency of the Review Application before the Minister. Thus, the said withdrawal would not preclude the Petitioners from assailing the original order as well as the order passed in review application. 4 1967 Mah.L.J. 880

27. Reliance was placed by Mr. Thakker on a judgment in the case of Vipin Kumar V/s. Jaydeep and Ors.5, wherein following the pronouncement in the case of Kunhayammed (supra), it was enunciated that the order refusing special leave to appeal may be a non-speaking or speaking order. In either case, it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge.

28. Mr. Khandeparkar, learned Counsel for the Petitioner in WP No.10350 of 2025 also urged that the doctrine of merger would not be attracted in the facts of the case, as the Petitioners in WP No.3609 of 2025 were not parties to the Petition. Their right to challenge the impugned orders which impinges upon their title and interest cannot be, thus, taken away. To buttress the submission that the doctrine of merger has no universal application, Mr. Khandeparkar placed reliance on the decision in the case of the State of Madras V/s. Madurai Mills Co. Ltd.6. Consideration:

29. I have given anxious consideration to the rival submissions canvassed across the bar. With the assistance of the learned Counsel for the parties, I have perused the pleadings and the material on record. I have noted the facts in a little detail, on purpose.

30. Evidently, a decree for partition passed by the Civil Court in SCS No.26 of 1949 dated 31 October 1951 is yet to be executed. Three quarters of a century have elapsed. What accentuates the situation is the fact that, the consent decree was passed on 12 October 1955, in the First Appeal before the High Court, obviating any further challenge before the Civil Court. The execution of such a consent decree in respect of the agricultural lands assessable to revenue that has consumed a period of over 70 years.

31. To begin with, to have absolute clarity in regard to the nature of the decree, it may be apposite to extract the decree passed by the trial Court and this Court in Appeal. The relevant part of the trial Court’s decree reads as under: “1.Defendant Nos.[1] to 5 ordered to put Plaintiff’s in possession of Survey No.80/3.

2. Plaintiffs entitled to recover partition and possession through the Collector of a 1/3rd share in Pot Hissas 1 and 2 of Survey No.867 from Defendant Nos.[1] to 4.

3. The Defendant Nos.[1] to 4 ordered to pay Plaintiffs Rs.300 on account of mesne profit for three years prior to suit.

4. As regards future mesne profits, the usual inquiry under O XX Rule 12 Civil Procedure Code, is directed.”

32. In the appeal, the parties to the suit arrived at a settlement and in terms of the compromise, the following decree came to be passed: “That the Plaintiffs will be entitled to recover possession of S.No.80/3 and of 1/4th share in S.No.867/1 and 867/2. The partition of S.No.867/1 and 867/2 should be effected by the Collector. Defendant Nos.[1] to 4 should pay to the Plaintiffs Rs.225 on account of mesne profits for the period prior to 11-2- 1955 and future mesne profits from 11-02-1995 in respect of P.S.No.80/3 and it be Plaintiff’s 1/4th share in S.No.867/1 and 867/2. The future mesne profits should be determined under O XX Rule 12 of the Code of Civil Procedure. The parties to bear their own costs in both the trial Court by the defendants as well as any amount paid by the defendants or mesne profits in excess of Rs.225 should be refunded to the defendants.”

33. The aforesaid decree passed by the Appellate Court would make it abundantly clear that the Plaintiffs were to recover possession of Survey No.80/3 and 1/4th share in S.No.867/1 and 867/2. The partition of Survey No.867/1 and 867/2 should be effected by the Collector. It would be contextually relevant to note that the modification in the decree passed by the Appellate Court pursuant to the compromise arrived at between the parties was only with regard to the share of the Plaintiffs in Survey No.867/1 and 867/2. The trial court had declared that the Plaintiffs were entitled to 1/3rd share therein. Whereas, the decree of the appellate Court modified the share of the Plaintiffs in Survey No.867/1 and 867/2 to 1/4th. The decree of the trial Court to deliver possession of Survey No.80/3 remained intact and the parties entered into consent terms to deliver possession of Survey No.80/3 to the Plaintiffs.

34. With the aforesaid clarity on facts, the remit of the inquiry by the revenue authorities in effecting the partition of the suit lands is required to be considered. Section 54 of the Code envisages that, though the Civil Court can pass a decree for partition or separate possession of shares of estate assessed to the payment of the revenue to the government, yet, such a decree is required to be forwarded to the Collector for effecting the partition or delivery of separate possession of such estate. Under Order XX Rule 18 of the Code, the Civil Court is empowered to determine the rights of the parties with respect to the land which is the subject matter of the suit and to pass a preliminary decree. When actual partition is to be effected in pursuance of the declaration of the rights of the parties in the land, the Civil Court has to refer the matter to the Collector or any officer subordinate to him authorized to act on behalf of the Collector. Sub-Rule (1) of Rule 18 of Order 20 of the Code, refers to partition decrees relating to the estate assessed to the government revenue referred to in Section 54 of the Code.

35. The Collector is, however, enjoined to effect the partition of the land in conformity with the decree. The determination of the rights of the parties is the domain of the Civil Court. Giving effect to the partition in accordance with the rights of the parties declared by the Civil Court is in the province of the revenue authorities.

36. Reliance placed by Mr. Thakkar on the decision of the Division Bench of this Court in the case of Timmanna Parmeshwar Bhat V/s. Govind Ganpati Bhat and Ors.[7] appears to be well founded. In the said case, the Division Bench observed that if the Collector disregards the terms of the decree and divides the property in contravention of its terms, clearly the Court is entitled to interfere.

37. The decision in the case of Abdul Rejak Laskar V/s. Kafizur Rahman and Ors.[8] succinctly exposits the position in law. The observations in paragraph No.47 are instructive, and, hence, extracted below:

38. The Supreme Court in terms enunciated that while making the partition, the Collector is bound by the declaration of the rights of the parties in the preliminary decree. But the Court has no power to dictate to the Collector as to how the partition is to be effected. If the Collector disregards the terms of the decree, the Court is entitled to refer the case back to the Collector to re-partition the property.

39. In the light of the aforesaid clear demarcation of the province of jurisdiction of the Civil Court and the authority of the Collector, reverting to the facts of the case, it becomes evident that, at some stage, the demarcating line got blurred and the controversy continues to survive.

40. The partition chart prepared by the Superintendent, Land Records, on 13 January 1992 is at the heart of the controversy. The partition chart reads as under: Survey No. Hissa No. Type Total area Waste Area Cultivable Area Revenu e assess ment Remarks 1 2 3 4 5 6 7 8 80 3 G 3-17 0-13 3-04 10-75 Plaintiffs Share 867 1/B P 2-66 0-03 2-63 5-35 867 1/A G 4-37 0-06 4-31 16-07 Defendants Share 867 2 G 6-48 0-09 6-39 13-57 Plaintiffs and Defendants joint share

41. Evidently, lands bearing Survey Nos.80/3 and 867/1B admeasuring 2H

66 R were allotted to the Plaintiffs and land bearing Survey Nos.867/1A admeasuring 4H 37 R was allotted to the Defendants and the land bearing Survey no.867/2 admeasuring 6 H 48R was kept in common amongst Plaintiffs and Defendants.

42. Allotment of land bearing Survey No.80/3, in strict sense, could not have been a matter of partition to be effected by the Collector under Section 54 of the Code, as the decree directed delivery of possession of the land bearing Survey No.80/3 to the Plaintiffs, exclusively. As noted above, the partition was to be effected to carve out 1/4th share of the Plaintiffs in the land bearing Survey No.867/1B and 867/1A. Reference to the Collector was, thus, confined to the partition of the land bearing Survey No.867/1 and 867/2.

43. Subsequently, the possession of the lands as indicated in the partition chart, was delivered to the parties under the Panchanama and possession receipts dated 31 August 1998. With the delivery of the possession of land bearing Survey No.80/3, the decree came to be executed completely and finally qua Survey No.80/3.

44. The subsequent appeals and revisions before the authorities under the Maharashtra Land Revenue Code, could not have assailed the order of delivery of possession of the land bearing Survey No.80/3 as the said execution was in conformity with the consent decree passed by the appellate Court. The challenge, thereafter, could have been only in respect of the land bearing Survey Nos.867/1 and 867/2; the decree in respect of which was sent’ to the Collector for partition.

45. Mr. Thakker was right in canvassing a submission that the land bearing Survey No.80/3 was not the subject matter of the dispute before the revenue authorities. Conversely, the submission of Mr. Dani that while effecting the partition, the land bearing Survey No.80/3 was also required to be taken into account, simply does not merit countenance as the said submission is in teeth of the consent decree which directed the delivery of possession of the land bearing Survey No.80/3 to the Plaintiffs, exclusively. Any challenge to the act of delivery of possession of the land bearing Survey No.80/3 before the revenue authorities would partake the character of challenge to the consent decree and, surely, that could not have been mounted before, and entertained by, the revenue authorities.

46. In fact, the perusal of the revision application before the Minister indicates that the revision applicants contended that there was no actual partition of the land bearing Survey No.867 and they were still in possession of the said land. No grievance as such was made with regard to the land bearing Survey No.80/3.

47. It would be contextually relevant to note what weighed with the Minister in allowing the revision application. The sole factor which influenced the decision of the Minister was that the total area of Survey No.867 was 7H 03R. Pursuant to the decree passed by the Appellate Court, 1/4th share out of Survey No.867 was to be allotted to the Plaintiffs. The Plaintiffs were, thus, entitled to an area admeasuring 1H 75R commensurating with their 1/4th share, and, yet, they were allotted 2H 66 R and that was the fundamental defect in the partition. There is no reference at all to any infirmity in the allotment and delivery of possession of the land bearing Survey No.80/3.

48. Yet the effect of the impugned orders was that M.E.No.38741 was also cancelled qua Survey No.80/3. M.E.No.38741 was certified to give effect to the orders of delivery of possession of Survey No.80/3 as well as the portions of Survey No.867/1 and 867/2 in accordance with the panchanama and the possession receipts dated 31 August 1998. The cancellation of M.E.No.38741 to the extent of Survey No.80/3 was clearly illegal, de hors the legality and correctness of the impugned orders.

49. At this juncture, reference to the order passed by this Court in WP No.3609 of 2025 dated 12 March 2025 becomes necessary. As the submissions were advanced with regard to the consequences of the said order on the rights of the parties extensively, I deem it apposite to extract the observations in paragraph Nos.[4] to 6 of the said order, which encapsulate the reasons which weighed with the learned Single Judge in dismissing the said Petition. They read as under:

50. At this stage, it may be advantageous to immediately notice the order dated 19 May 2025 passed by the Supreme Court in SLP(C) Diary No.14581 of 2025. It reads as under: “Delay condoned.

2. Having considered the matter and the direction by which the petitioner(s) is aggrieved, we do not find any reason to interfere with the order impugned. Accordingly, the Special Leave Petition is dismissed.

3. Pending application(s), if any, shall stand disposed of.”

51. The submissions on behalf of the Petitioners that the aforesaid orders do not bind the Petitioners as they were not the parties to the aforesaid petition can not be countenanced by this Court. Indeed, the order dated 12 March 2025 in WP No.3609 of 2025 is a reasoned order and this Court has clearly recorded that there was no serious dispute that the partition chart was not prepared in accordance with the terms of the consent decree and when the State Government has recorded findings that the partition chart was not in consonance with the decree for partition, the same does not warrant interference solely on the ground of the alleged lack of opportunity of hearing. This Court would not be in a position to take a different view of the matter, in regard to the partition chart not being in consonance with the decree.

52. Resultantly, the submissions on behalf of the parties on the aspect as to whether the order passed by the Supreme Court dismissing the SLP, (extracted above) gives rise to the doctrine of merger; whether the said order is speaking order or otherwise, are not required to be delved into, elaborately.

53. As enunciated by a three Judge Bench of the Supreme Court in the case of Chandi Prasad and Ors. V/s. Jagdish Prasad and Ors.9, the doctrine of merger is based on the principle of propriety in hierarchy of justice delivery system. The doctrine of merger does not make distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time. The merger of a decree takes place irrespective of the fact as to whether the appellate Court affirms, modifies or reverses the decree passed by the trial Court. When a special leave petition is dismissed summarily, doctrine of merger does not apply but when an appeal is dismissed, it does.

54. The decision of the Supreme Court in the case of Kunhayammed (supra), again came up for consideration before another three judge Bench of the Supreme Court in the case of Khoday Distilleries Ltd. and Ors. V/s. Sri Mahadeshwar Sahakara Sakkare Karkhane Ltd.10. The Supreme Court affirmed and reiterated the conclusions rendered by the three Judge Bench in the case of Kunhayammed (supra), and summed up in paragraph No.44, as under: "(iv) An order refusing special leave to appeal may be a nonspeaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.

(v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.

(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.”

55. The Supreme Court has made it abundantly clear that an order refusing special leave to appeal does not stand substituted in place of the order under challenge, even when it is by a speaking order. The findings recorded by the Supreme Court would undoubtedly bind the parties thereto and also the Court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline. However, that does not imply that the order of the Court, tribunal or authority assailed, has merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res-judicata in subsequent proceedings between the parties.

56. On the aforesaid touchstone, if the order passed in SLP(C) Diary No.14581 of 2025, extracted above, is perused, it would be rather audacious to hold that the Supreme Court has ascribed reasons to such extent that the order dismissing SLP would constitute an order into which the order passed by this Court in WP No.3609 of 2025 would stand merged. The Supreme Court has simply recorded that, having considered the matter and directions by which the Petitioners were aggrieved, the Supreme Court did not find any reason to interfere with the order impugned. Therefore, it cannot be said that this Court is precluded from considering the legality, propriety and correctness of the impugned orders, especially in respect of the land bearing

57. Irrespective of the applicability of the principle of merger, in my considered view, this Court would not be justified in delving into the legality, propriety and correctness of the order passed in the Revision Application in the face of the order dated 12 March 2025 in WP No.3609 of 2025 to the extent of the land bearing Survey No.867.

58. The said order would not, however, preclude this Court from examining the legality and correctness of the impugned order and the consequential orders passed by the revenue authorities in respect of the land bearing Survey No.80/3. Once this Court comes to the conclusion that the land bearing Survey No.80/3 could not have been a matter of reference to the Collector under Section 54 of the Code, for effecting partition, as in terms of the consent decree, the possession of the said land was to be given to the Plaintiffs, exclusively, none of the orders passed by the revenue authorities would bind the parties to the said suit, after the delivery of possession of the land bearing Survey No.80/3 to the Plaintiffs, as evidenced by the panchanama and possession receipt dated 31 August 1998.

59. Moreover, the challenge before the State Government was primarily in respect of the land bearing Survey No.867/1 and 867/2. It is the purported defect in effecting the partition of the land bearing Survey No. 867 that weighed with the Minister, and this Court did not find any reason to interfere with the impugned orders as the State Government had recorded findings that the partition chart was not prepared in accordance with the terms of the consent decree. Therefore, the dictate of the command of justice warrants that this Court must intervene to restore the sanctity of the decree passed by the Civil Court qua Survey No. 80/3, which was sought to be eroded by the impugned orders in an indirect manner.

60. The powers of the High Court under its writ jurisdiction are plenary. A wide discretionary jurisdiction is conferred on the High Court in aid of justice. The powers of the High Court in exercise of its writ jurisdiction cannot be circumscribed by strict legal principles or rules of technicalities, so that the High Court is not stifled in fulfilling its mandate to uphold the rule of law.

61. In U.P.State Sugar Corporation Ltd. V/s. Kamal Swaroop Tondon11, the Supreme Court emphasised the equitable, discretionary and plenary nature of the jurisdiction of the High Court, in the following words: 35…..It is well settled that the jurisdiction of the High Court under Article 226 of the Constitution is equitable and discretionary. The power under that Article can be exercised by the High Court “to reach injustice wherever it is found”. (emphasis supplied)

62. Thus, the submissions on behalf of the Respondents premised on the withdrawal of WP No.17337 of 2024 on 18 February 2025 without reserving the liberty, apparently for the reason that some of the Petitioners therein had filed review petition before the State Government, need not detain the Court. The substance of the matter cannot be lost sight of. Under no circumstances, the execution of the partition decree qua Survey No.80/3 could have been deferred on account of the pendency of the proceedings under Section 54 of the Code, before the Collector. Therefore, this Court is impelled to hold that, notwithstanding the withdrawal of WP No.17337 of 2024, without reserving liberty to file a fresh proceeding or pursue the remedies before the State

63. The conspectus of aforesaid consideration is that the Writ Petitions deserve to be partly allowed.

64. Hence, the following order: ORDER

(i) The Writ Petitions stand partly allowed.

(ii) It is declared that the impugned orders dated 27 September 2024 passed in Revision Application No.3019/10232/Pra.Kra.240/J-6, and dated 2 July 2025 in Review Application No.3024/4072/Pr.K.416/J-6 and 9 July 2025 in Review Application No.No.3024/4073/Pr.K.416/J-6, do not affect the delivery of possession of Survey No.80/3 to the Plaintiffs or their successors in interest under the Panchanama and possession receipt dated 31 August

1998. Nor those orders affect the rights of the Plaintiffs or their successors in interest in Survey No.80/3.

(iii) It is hereby declared that the impugned orders do not affect the certification of M.E.No.38741 dated 26 September 1998 to the extent of

(iv) The impugned orders dated 27 September 2024, 2 July 2025 and

9 July 2025 and the consequential orders passed by the revenue authorities stand quashed and set aside qua Survey No.80/3.

(v) The revenue authorities are directed to restore entries in the record of rights qua Survey No.80/3 as they obtained on the date of passing of the impugned order in Revision Application No.3019/10232/Pra.Kra.240/J-6 dated 27 September 2024.

(vi) The Collector or the authorised officer shall effect the partition the suit lands bearing Survey No.867/1 and 867/2 only, in conformity with Decree in First Appeal No. 129 of 1951 and in accordance with law.

(vii) Rule made absolute to the aforesaid extent.

(viii) No costs.

( N.J.JAMADAR, J. ) At this stage, Mr. Shinde, learned Counsel for Respondent Nos.[4] and 5 in WP No.10519 of 2025 seeks stay to this order for a period of six weeks. This Court has recorded a clear view that the reference to the Collector under Section 54 of the Code in respect of land bearing Survey No.80/3 was not at all warranted. Hence, the oral application for stay stands rejected. ( N.J.JAMADAR, J. ) Designation: PS To Honourable Judge