BHURE KHAN Vs. KHAJU

JUDGEMENT

(1.) This revision petition has been filed by Bhure Khan and others against the orders of the Revenue Appellate Authority, Kota, dated the 18th July, 1963, whereby he accepted the appeal of Khaju etc. against the judgment and decree of the Sub -Divisional Officer, Gangapur, dated the 18th January, 1963 on the ground that the lower appellate Court had failed to exercise jurisdiction vested in it by law and had erred in law and had committed material irregularity and illegality in holding that the Sub -Divisional Officer had the jurisdiction to try the case relating to the right of way in the fields. It was prayed that the order of the lower appellate court be set aside and that of the trial court be upheld whereby the trial court had dismissed the suit filed by the opposite party seeking a perpetual injunction under secs. 188 and 92(A) of the Rajasthan Tenancy Act.

(2.) Briefly stated the facts are that on the 6th Feb., 1962, the plaintiffs -opposite -party filed a suit in the Court of the Sub -Divisional Officer, Gangapur, under secs. 188 and 92(A) of the Rajasthan Tenancy Act praying for the grant of a perpetual injunction against the petitioners in respect of the right of the way falling through the fields of the petitioners which it was averred had been legally established by virtue of an order of the Panchayat Ahmadpur, dated the 7th January, 1962 under sec. 251 of the Rajasthan Tenancy Act.

(3.) The learned Sub -Divisional Officer before whom the suit was filed came to the conclusion that the matter fell within the ambit of sec. 251 of the Rajasthan Tenancy Act and, therefore, lay within the jurisdiction of the Tehsildar or a Civil Court. He held that the suit did not fall under secs. 188 or 92(A) of the Rajasthan Tenancy Act. Accordingly he dismissed the same. Aggrieved by this order, the plaintiffs -opposite party filed an appeal before the Revenue Appellate Authority, Kota, who held that the Sub -Divisional Officer had all the powers of the Tehsildar and, therefore, it was not appropriate for the Sub -Divisional Officer to have dismissed the suit on the ground that the case should have been filed before the Tehsildar. It was held by the learned Revenue Appellate Authority that the suit had been filed under sec. 188 and 92(A) of the Rajasthan Tenancy Act which was triable by the Assistant Collector and he, therefore, remanded the case to the Sub -Divisional Officer for disposal according to law. The defendants - applicants have now come in revision against this order.