BHURA Vs. LADU

JUDGEMENT

(1.) This revision against the judgment of the learned Collector Jhunjhunu dated 26.9.52 has been preferred by three defendants, against whom ex -parte proceedings had been taken by him. An appeal had been preferred before him against the decision of the Tehsildar Chidava in a proceeding under sec. 251 of the Rajasthan Tenancy Act (hereinafter referred to as the Act). The opposite party Malu Ram was the applicant and the other parties had been cited as respondents. After necessary enquiry the learned Tehsildar accepted the application and let the opposite party Malu Ram have a right of passage. The respondents Ladu and Panna alone preferred the appeal against it. In that appeal, the present appellants did not appear despite notice, and so the case proceeded ex -parte against them. The learned Collector decided to inspect the site and did inspect it in the presence of the respondent Ladu and other respondent Malu Ram. After seeing the site he decided on the basis of certain concessions made by the parties present and their counsel that the right of way be given from the point A to B and therefrom B to C which was different from the one given by the learned Tehsildar viz. from A to E (in the map enclosed with the file of the trial court). This decision of the learned Collector was not based upon the appreciation of any evidence. Nor was it based upon the compromise between all the parties concerned in the proceedings. Rather, it was based on admissions and concoctions made by such parties as were not at all affected by the proposed change. A perusal of the map enclosed with the trial courts file would go to show that the passage allowed by him affected the fields of such persons as were not present before him and against whom he had decided to proceed ex -parte (the appellant before us). In the absence of such persons, when they had not cared to appear despite notice, he could pass any order which was justified by the evidence existing already on record. But certainly he could not pass a different order not co -related with evidence on record nor having been concluded on the basis of the appreciation thereof. Much less could he pass an order, without giving them any chance of hearing against it, which directly affected their fields. They could afford not caring to put up an appearnce when the way allowed by the learned trial court in no way affected them or their fields. This does not mean that another order directly affecting them and their fields, could be substituted in their absence and without specifically letting them have an opportunity of representing against it.

(2.) This action of the learned Commissioner was, therefore, quite in excess of the jurisdiction vested in him besides his exercising even the jurisdiction vested in him in a manner quite irregular. In appeal the appellate court can examine the evidence already on record and come to any conclusion it deems fit even in the absence of the parties concerned if they do not care to make an appearance despite notice. But it cannot substitute a decision not at all related to that evidence even under such circumstances.

(3.) This revision is, therefore, hereby accepted, the order of the learned Collector set aside and the case remanded back to him with the directions that he should re -admit the appeal to its original number and decide it afresh in accordance with law and keeping in view the observations made above.