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2004 DIGILAW 92 (RAJ)

Kamal Khan v. Board of Revenue, Ajmer

2004-01-20

O.P.BISHNOI, RAJESH BALIA

body2004
JUDGMENT 1. - In spite of service none has appeared for the respondents No. 4/1 to 4/8.This appeal is directed against the judgment of learned Single Judge dated 8.12.1997 by which the petition filed by the present appellants has s been dismissed. The learned Single Judge opined that the appellants have filed a civil suit which has been rejected on 22.7.1982 and which has become final since no appeal was preferred against that judgment. The Appellate Authority as well as the Board of Revenue rejected the appeal and revision petition filed by the appellants by holding the appellant/petitioners have filed civil suit which has been dismissed and the obstruction caused by them has been removed by the Gram Panchayat. 2. The learned counsel for the appellants has pointed out that so far as the reference to the Civil Court order is made is wholly irrelevant inasmuch as the Civil Court has not granted any declaration in respect of the land in question but has rejected the plaint by upholding the preliminary objection raised by the defendants that the lis is of revenue nature and is triable by the Revenue Court only and not by the civil court. The judgment of the Civil Court was produced along with the writ petition. 3. Apparently the rejection of plant on the ground that the Civil Court has no jurisdiction is not relevant for deciding whether the land in question is a part of public way or a part of land belonging to the appellants. The rejection of the plaint by the Civil Court on the ground of lack of jurisdiction in the Civil Court cannot be held against the appellants merely because the appellants did not file appeal against it. Apparently this is the apparent 25 mistake committed by the Additional Collector as well as the Board of Revenue. 4. The genesis of the dispute is that on an application moved by some villagers of village Mithri, which falls within Panchayat Samiti Phalodi, somewhere in 1974 alleging that way from village Kalra to Hopardi may be got opened which has been obstructed by the appellants. Vide order dated 3.11.1974, the Panchayat Samiti directed to provide way through khasra numbers 292, 305, 293, 304, 296 and 297 which makes a short route for the residents of village Kalra for taking their cattle through that route. Vide order dated 3.11.1974, the Panchayat Samiti directed to provide way through khasra numbers 292, 305, 293, 304, 296 and 297 which makes a short route for the residents of village Kalra for taking their cattle through that route. A perusal of the order passed by the Gram Panchayat shows that finding is that the publicway results in taking about 10 kms larger than going through the khasra numbers through which the way is claimed. Providing a much shorter route, the way has been carved out. 5. The order of the Gram Panchayat, read in totality, reveals that no declaration was given about the pre-existing public way but in fact looking to the convenience of the villagers, a new way has been carved out. Unfortunately, this order was not read in its proper perspective by the Additional Collector and he has chosen to decide the appeal filed by the present appellant on two fold grounds after recording the rival contentions that since the civil suit filed by the appellants was dismissed on 22.7.1982 and the way obstruction has also been removed by the Gram Panchayat, the appeal deserves to be dismissed. It did not choose the decide the question about existing public way at all. 6. The same view has been affirmed by the Board of Revenue in revision.This approach by the Appellate Authority as well as by the Revisional Authority has resulted in serious miscarriage of justice inasmuch as the rights of the appellants have been negated without going into the question whether the land through which the way has been carved out by the Gram Panchayat belongs to appellants. 7. Apart from that the learned counsel for the appellants has also alleged that notice which was ordered by the Gram Panchayat to be issued was never served upon him. This issue has also not been considered by the Revenue Court or by the learned Single Judge. Ail the orders suffer from vice of non-application of mind to issues which have been raised before the Collector as well as the Board of Revenue. 8. Accordingly, this appeal is allowed. The judgment under appeal is set aside. As a result of the aforesaid discussion, the writ petition is also allowed. Ail the orders suffer from vice of non-application of mind to issues which have been raised before the Collector as well as the Board of Revenue. 8. Accordingly, this appeal is allowed. The judgment under appeal is set aside. As a result of the aforesaid discussion, the writ petition is also allowed. The order passed by the Additional Collector dated 21.3.1984 Annex.3 and the order passed by the Board of Revenue dated 5.4.1994 (Annex.4) are set aside and the Additional Collector, Jodhpur is directed to decide the appeal of the present appellants afresh in accordance with the law.No order as to cost.Writ Petition allowed. *******