JUDGMENT 1. 1. This writ petition is directed against the order of Board of Revenue Annexure-8 dated 6th July,1990 whereby the appeal filed by the petitioners against the order Annexure-7 passed by Additional Collector, Kota on 24th June, 1989 has been dismissed on the ground that the petitioners have no locus standi to file objection and, therefore, the appeal was not maintainable. 2. The facts which arise in the present case are that the petitioners are the successors of Ram Gopal and Jagannath, who are alleged to be the khatedar tenants of agricultural land comprising of Khasra No.328 measuring 23 Bighas and 6 Biswas situated in village Sinota Tehsil Piplada, District Kota. The fact whether these persons were khatedar tenants or not on coming into force the Rajasthan Tenancy Act 1955 (for short 'the RT Act'), was determined by this Court in the case in S.B.Civil Writ Petition No.253/1977 decided on October 24,1986 by Hon'ble Mr. Justice N.M. Kasliwal in the writ petition filed by Ram Gopal, the predecessor of present petitioners. Earlier Ram Gopal etc. had been entered as sub-tenants in the revenue record when the RT Act came into force and as per Section 19 of the RT Act the sub-tenants in possession were entitled to be declared as khatedar tenants if they fulfill the conditions mentioned in the statutory provisions. It was observed by the High Court that in the mutation proceedings also an enquiry can be made and if automatically by operation of the provisions of the law, like Section 19(1)(a) of the RT Act, khatedari rights were conferred on a sub-tenant and thus, the authorised authority was competent to record khatedari in favour of the sub-tenant in mutation proceedings. The writ petition of Ram Gopal etc. was allowed and the order of the Board of Revenue by which order the petitioner was deprived of the rights of sub-tenant and khatedari were set aside. The result of the order Annexure-2 was that the petitioners became the khatedar tenants as per Section 19(1)(a) of the RT Act. 3. This very land of the petitioners again became the subject matter of the Rajasthan Tenancy Act while determining the surplus land under Chapter-IIIB of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (for short 'the Ceiling Act'). 3. This very land of the petitioners again became the subject matter of the Rajasthan Tenancy Act while determining the surplus land under Chapter-IIIB of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973 (for short 'the Ceiling Act'). By Annexure-1, the land of Chittar Lal, who is now being represented by respondents 4 to 6, was declared surplus to the extent of 41.73 standard acres after leaving 30 standard acres with him as permissible area. Chittar Lal was directed to give his option for selecting his land of 30 standard acres. The case of the respondents is that this land of Khasra No. 238 was a Muafi land and the landlord Chittar Lal while giving his option included Khasra No.238 as a whole in the option for declaration as surplus land. His land included in Khasra No.328 was declared as surplus. The petitioners after acquiring knowledge of their khatedari land in Khasra No.328 having been included in the surplus land, Chittar Lal through his legal heirs immediately filed objections to the concerned authority vide Annexures 5 and 6. The objections were rejected by Annexure-7 and ultimately by Annexure-8, holding that the petitioners have no locus standi to file objection for the reasons that it is for the landlords to file objection and that only the landlord can maintain an appeal, the appeal itself was also dismissed as non-maintainable. 4. It is the contention of the learned counsel for the petitioners that proviso to Section 30(E) of the Old Ceiling Act in Chapter IIIB of RT Act clearly prescribes that an unencumbered land shall have preference on encumbered land while giving option by the land lord who is required to give option after declaration of surplus land. As such, Chittar Lal knowing well that Khasra No. 328 could not be included in the option of Chittar Lal, had as a matter of fact, tried to deprive the petitioners of their tenancy khatedari right. It is also pertinent to mention that before the land could be included in the surplus pool, the Tehsildar of the area vide its report Annexure-4 had opined by sending a report to the authorities to the effect that the land comprising of Khasra No.328 was an encumbered land and could not have been included in the option given by Chittar Lal. Despite the report of the Tehsildar, the petitioner continued to suffer and there was no alternative to the petitioner but to approach the authority who had dealt with the ceiling proceedings of Chittar Lal to review the order so far the land of the petitioner was concerned. It is no doubt true that an appeal can only be filed by a person who is the party to the proceedings. In the present case, the petitioners could have filed a review application or application under Section 221 of the RT Act to the Board of Revenue for taking up their case to act in supervisory capacity and in such situation, the Board of Revenue was authorised to take up the matter if it so desired. However, in my opinion, it was a fit case where the Board of Revenue instead of going into the locus standi of the parties to file an appeal, should have gone into the merits of the case and should have converted the appeal into a petition under Section 221 of the RT Act. 5. It is established on the record by the orders of this Court in the writ petition of Ram Gopal (supra), that Ram Gopal was a khatedar tenant at the relevant time in the fifties when the Act had come into force. The appointed date for declaring land as surplus land is 1.4.1966 and in such situation when Ram Gopal and Jagannath had become khatedar tenants by the statutory provisions, could the land under the khatedari of the above said two persons be included in the option of Chittar Lal after 1.4.66 ? The answer is in negative. The Tehsildar had also made a report that the land in question could not have been included in option for declaring it as surplus land by Chittar Lal. In such a situation, the petitioners could only approach the Board of Revenue and if facts stood established on the record, could have also filed the writ petition which they had ultimately done in the present case. 6. It has been authoritatively held by this Court in Banwari Lal Nagpal v. State and others, 1983 RLR 1 = (1983 RRD 135) and Badri Lal v. State and others, 1992 RRD 317 that while giving option for the purpose of ceiling unencumbered land should be preferred than the encumbered land. 6. It has been authoritatively held by this Court in Banwari Lal Nagpal v. State and others, 1983 RLR 1 = (1983 RRD 135) and Badri Lal v. State and others, 1992 RRD 317 that while giving option for the purpose of ceiling unencumbered land should be preferred than the encumbered land. In view of the authoritative judgments of this Court, option by Shri Chittar Lal by including encumbered land of the khatedari of Ram Gopal and Jagannath was on the face of it neither proper nor legal and as such, it was a case where the Board of Revenue should have interfered by invoking jurisdiction under Section 221 of the RT Act. 7. For the reasons mentioned above, the writ petition is allowed and the orders impugned are set aside and it is held that land in Khasra No. 328 under the khatedari of Ram Gopal and Jagannath on the appointed date 1.4.1966 could not have been opted by Chittar Lal for declaration of his surplus land. No orders as to costs.Petition Allowed. *******