Hon'ble RAFIQ, J.—This writ petition has been filed by the petitioners against the judgement of the Board of Revenue dated 2.6.1997. The Board of Revenue by the aforesaid judgment allowed the appeal filed by the respondents-herein and reversed the judgement of the Revenue Appellate Authority dated 12.4.1988, dismissing the appeal of the respondents and the judgement and decree passed by the learned Assistant Collector, Bayana dated 18.3.1988, by which the suit for declaration and injunction filed by the plaintiff-petitioners was decreed. 2. Jawali, predecessor-in-title of petitioners filed the aforesaid suit inter alia on the premise that he was in possession of the land of khasra No. 1177 measuring 14 bighas and 9 biswas. He was co-sharer with his brother and had one half share in the land. In the record of rights, he was inadvertently shown as Shikami (Sub-tenant), whereas the other brothers namely Santokhi and Lohare have been shown as its khatedars. During the pendency of the suit, Santokhi expired and therefore his legal representatives were brought on record. Ex-parte proceedings were initiated against defendants even after impleadment of legal heirs of Santokhi. The defendant Lohare filed an application for setting aside the ex parte proceedings which was dismissed and the appeal filed thereagainst was also dismissed by the Revenue Appellate Authority, Bharatpur. The learned Assistant Collector, Bayana decreed the suit vide judgment dated 18.3.1988. Against which, appeal was filed by the respondents before the Revenue Appellate Authority, which was dismissed, but subsequently second appeal filed by them before the Board of Revenue was allowed. Hence this writ petition. 3. Shri Shankar Lal Sharma, learned counsel for the petitioner has argued that petitioner-Jawali was neither trespasser, nor did he claim khatedari rights with reference to Section 15 and 19 of the Rajasthan Tenancy Act. He was in fact co-sharer and had approached the Court with the grievance that in the record of rights, his name has been wrongly indicated as sub-tenant. He produced the receipts of payment of land revenue for Svt. 2017, 2019, 2023, 2024, 2028, 2029, 2030, 2031. He also produced the copies of khasra girdawari of Svt. 2017-23, 2024 and 2031. Three witnesses namely Jawali, Vandana and Durga Prasad in their statement gave version that plaintiff was co-sharer of one half of land and he had an equal share in this land along with his brother Santokhi. 2017, 2019, 2023, 2024, 2028, 2029, 2030, 2031. He also produced the copies of khasra girdawari of Svt. 2017-23, 2024 and 2031. Three witnesses namely Jawali, Vandana and Durga Prasad in their statement gave version that plaintiff was co-sharer of one half of land and he had an equal share in this land along with his brother Santokhi. It was argued that learned Assistant Collector rightly decreed the suit holding that petitioner and respondent Santokhi were real brothers. The Board of Revenue overlooked all these facts and also the documentary evidence whereby it was amply proved that petitioner had equal share in the disputed land. In fact, defendant Lahore in para 8 of the written statement himself admitted that plaintiff was Khatedar/Kashtkar of the land in dispute. In earlier suit for declaration, a compromise arrived at between the parties wherein it was agreed that petitioner was co-sharer and had half share in the land in dispute. 4. Learned counsel for the petitioner referred to the khasra girdawaris of Svt. 2015-2019, 2019-2023, 2024-2027 and 2028-2031 which are on record and argued that in all of them, name of petitioner has been shown as co-khatedar in the land of khasra No. 1177. This aspect of the matter has completely been ignored. Learned counsel submitted that since the matter was decided ex-parte against defendant-respondents, they did not contest the matter before the first Court and if at the Board of Revenue wanted to give them opportunity to contest the suit, the appropriate course was to remand the matter, rather than dismissing the suit because in that event, plaintiff-petitioner would have got the opportunity to meet the case set up by the defendants. The first Court did not have the advantage of examining that evidence. Learned counsel in support of his arguments relied on the judgement of this Court in Kailash Giri vs. Akhey Giri through L.Rs. & Ors.- RLR 2006(1) 522 = RLW 2006(1) Raj. 564 and in Chhaila vs. Board of Revenue & Ors. - RRD 2006 page 225. 5. It was also argued that long possession of the plaintiff is not disputed even by the defendants. & Ors.- RLR 2006(1) 522 = RLW 2006(1) Raj. 564 and in Chhaila vs. Board of Revenue & Ors. - RRD 2006 page 225. 5. It was also argued that long possession of the plaintiff is not disputed even by the defendants. If the land of the petitioner is combined with the land of the other two brothers, it would be evident that all of them had got equal share, which means that it was a land of joint khatedari and possession of one has to be deemed to be possession of all. The learned Revenue Board has misapplied the law relating to Section 15 to 19 of the Rajasthan Tenancy Act, which was not the case of the plaintiff-petitioner. 6. It is argued that the suit was decided ex-parte against the defendants. While Lohre had give up his claim in the land of khasra No. 1177 in favour of another brother Santokhi, even then he was only one who filed appeal. Such an appeal was not maintainable and therefore the appeal of defendant Lohare was dismissed. He filed second appeal before the Board of Revenue but in that Hari Ram S/o Santokhi joined him as a co-appellant because Hari Ram did not challenge the judgment passed by Assistant Collector, therefore, it should be deemed that it accepted the correctness of the same. Raja Ram did not file any appeal either before the Revenue Appellate Authority or the Board of Revenue therefore he was debarred from questioning the correctness of the aforesaid order. 7. Learned counsel also submitted that after filing of the present writ petition, Lohare filed an injunction suit against the present petitioner in the Court of Additional Chief Judicial Magistrate, Bayana, which was dismissed in default by order dated 15.2.1990 and the legal heirs of Raja Ram have filed declaration suit against the legal heirs of Hari Ram which is also pending before the SDM, Roopvas. 8. Peer contra, Shri R.P. Garg and Shri Rahul Kamwar, learned counsel for the respondents opposed the writ petition and submitted that plaintiff's name was never recorded as khatedar in so far as land of khasra No. 1177 is concerned. He was merely shown to be a Shikami (Sub-tenant) and in view of Section 45 of the Tenancy Act could not acquire any khatedari right. He was merely shown to be a Shikami (Sub-tenant) and in view of Section 45 of the Tenancy Act could not acquire any khatedari right. It was not even the case of the plaintiff that he was in possession of land when the Rajasthan Tenancy Act was in force, therefore, he cannot even claim khatedari rights with reference to Section 15 and 19 of the Rajasthan Tenancy Act. It is argued that the entry made in khasra girdawari of various years merely includes the name of plaintiff as the one who was in contributory possession of land not as a khatedar. The petitioner cannot be therefore deemed to be khatedar of such land. Learned counsel argued that even if the matter was proceeded ex-parte against the defendants, plaintiff-petitioner was required to prove his case. There is no evidence to show that this land was ancestral land or that three brothers had equal share. It was argued that Board of Revenue rightly allowed the appeal filed by the respondents reversing the judgment and decree passed by the Assistant Collector and Revenue Appellate Authority because mere mention of the name of Jawali as Shikami (sub-tenant) in jamabandi of Svt. 2009-2023 cannot entitle him to claim any khatedari rights. The plaintiff did not specify as to on what basis he wanted to get khatedari rights, nor did he set up a case that this was ancestral land or that he and his other two brothers received the land from his father. It was not even the case of the plaintiff that he was in possession of the land prior to enforcement of Rajasthan Tenancy Act. The Board of Revenue was therefore wholly justified in interfering with the matter. The learned Assistant Collector exceeded his jurisdiction in declaring the petitioner as khatedar over one and half share of land. Citing the jamabandi of Svt. 2064, learned counsel argued that presently also the name of legal heirs of Lohare and Santokhi have been recorded as khatedar and not the present petitioners. 9. Learned counsel cited the division bench judgement of this Court in Tiku Ram vs. Board of Revenue & Ors. Citing the jamabandi of Svt. 2064, learned counsel argued that presently also the name of legal heirs of Lohare and Santokhi have been recorded as khatedar and not the present petitioners. 9. Learned counsel cited the division bench judgement of this Court in Tiku Ram vs. Board of Revenue & Ors. 2003(4) WLC (Raj.) 1 and argued that even if sub-tenant is in possession of land on expiry of term u/S. 45 of the Tenancy Act, it cannot be a basis for conferring upon khatedari rights in violation of Section 45 on the basis of mere old possession. It is therefore prayed that the writ petition be dismissed. 10. I have given my anxious consideration to the rival submissions and perused the material on record. 11. The learned Assistant Collector decreed the suit filed by the plaintiff-petitioner in ex-party proceedings against the defendants. In the proceedings, the statement of three witnesses were recorded on behalf of plaintiff. One witness of plaintiff itself and other of Panna and Durga Lal and all of them stated that total chunk of land was distributed among three brothers by own partition and that the disputed land in khasra No. 1170 was cultivated by the plaintiff-Jawali for last more than 25 years. This statement was given in the year 1987 by Panna, Durga Prasad and other two witnesses. Apart from that the name of petitioner was recorded in jamabandi of Svt. 2019-2023 in column No. 5 and Svt. 2024-2031 in column No. 6, though he was shown as a sub-tenant but nevertheless his possession for a long time was there. The defendant-respondents did not file any reply to written statement, nor did they adduced any evidence. The Revenue Appellate Authority dismissed the appeal filed by them, even then the second appeal of the defendant-respondent filed before Board of Revenue was allowed on the basis of arguments advanced by them. Although, it is a fact that there is no documentary evidence regarding state of revenue records prior to Svt. 2019, it is also not clear as to who was in possession and what were the entries in the revenue record at the time of commencement of Tenancy Act in Svt. 2012, but perhaps that situation arose because the defendants did not contest and the first Court decreed the suit on whatever evidence was adduced by the plaintiff. 2019, it is also not clear as to who was in possession and what were the entries in the revenue record at the time of commencement of Tenancy Act in Svt. 2012, but perhaps that situation arose because the defendants did not contest and the first Court decreed the suit on whatever evidence was adduced by the plaintiff. What would be the effect of those entries has also not been clearly analysed by the learned Board of Revenue. It has gone to allow the appeal on the premise that khatedari rights could not be granted on the basis of mere long possession and that in the revenue records, petitioner was shown as Shikami (sub-tenant) but in making such contest, the respondents -defendants were required to act contrary which they could not be because the matter was decided ex-parte. The appropriate course in that event would have been to remand the matter to the first Court by setting aside the judgement and decree rather than dismissing the suit. I am fortified in taking this view in the Kailash Giri and Chhaila, (supra). In the later judgement, suit was filed for clarification of entires and it was dismissed since the plaintiff was unable to prove long possession. There was oral evidence of three witnesses like in the present matter wherein land was shown to be in cultivatory possession of ancestors of the plaintiff. The defendants did not appear before the Trial Court. In those facts, this Court held that an enquiry of this nature could not be undertaken in writ petition since the non-petitioner did not put in their appearance before the Trial Court, nor did they file any written statement traversing the plaint. The matter was therefore remanded to the Trial Court for decision afresh. 12. The division bench judgement of this Court in Tiku Ram is distinguishable because plaintiff has not come out with a case that he is Shikami (Sub-tenant). His categorical case is that such entry in the revenue record should be held illegal and he should be declared khatedar. The matter will have to be then examined in the context of such prayer, notwithstanding the provisions of Section 45 of the Act. His categorical case is that such entry in the revenue record should be held illegal and he should be declared khatedar. The matter will have to be then examined in the context of such prayer, notwithstanding the provisions of Section 45 of the Act. What would be the effect of Lohare having give up his share or having not claimed any share in the disputed land of khasra No. 1177, will have to be examined in the light of the fact whether he had received his share in other khasra numbers as per the oral partition between the parties which of course will have to be proved by plaintiff by lead of evidence. 13. For all the aforesaid reasons, I find that the learned Board of Revenue has erred in law in dismissing the suit rather than remanding the matter to the Trial Court. Learned counsel for the parties informed that now the matter will have to be remanded to the Court of SDM, Roopvas. 14. In the result, this writ petition is allowed. The impugned orders are set aside and the mater is remanded back to the Court of SDM, Roopvas for deciding it afresh after giving opportunity of adducing evidence to the parties within a period of one year from the date of appearance of the parties before it. Parties are directed to appear before the Court of SDM, Roopvas on 28.3.2011.