NANDA Vs. RAM KALYAN

JUDGEMENT

(1.) The circumstances that give rise to this revision may briefly be stated thus. Nanda son of Deva is the recorded Khatedar of 52 bighas and 18 biswas of land in Khasra No. 425 in village Richhawa, Tehsil Atru. A mutation for this land was opened out on the request of the Jagirdar and Manager Court of Wards with the allegations that Khasra No.425 had been transferred to Ram Kalyan and others partly in satisfaction of an antecedent debt and partly for fresh consideration and that the Khatedari be entered in favour of Ram Kalyan and others. On 11 -7 -51 the Tehsildar Atru without caring to examine Nanda or to have him examined passed an order sanctioning the mutation after making an observation that Nanda in fact appeared to be a sub -tenant and that he was entered as a Khatedar mainly on account of a local practice in the jagir area. On 28 -2 -52 the same Tehsildar happened to re -examine this mutation and he then realised that his previous order was highly irregular, inasmuch as the person in possession was not examined nor was any enquiry made as regards the transfer of possession. He therefore passed an order for reviewing his previous decision. Shri Ram Kalyan and others went in appeal before Collector Kotah who upheld the order of the Tehsildar. A second appeal was filed before the Commissioner who held that the Tehsildar had no authority to review his previous decision and that his order dated 28 -2 -52, should be set aside. Hence this revision by Nanda.

(2.) The opposite party did not put in appearance despite notice and hence the case was heard ex -parte. The learned Collector has referred to an order of the State Council of the former Kotah State dated 10 -1 -42 according to which a Tehsildar could amend or correct an order passed by him in mutation proceedings. No copy of the same exists on record and hence we are not in a position to comment upon the same. The proceedings carried out by the Tehsildar on 11 -5 -51 and the order passed by him are so manifestly irregular and absurd that they can be regarded nothing but a nullity. It is clear from the mutation form itself that Nanda is the recorded khatedar of the land in dispute and has been shown as being in possession thereof. Mutation proceedings are intended to ascertain facts as they are proved or admitted to have occurred. Naturally the first action that ought to have suggested to the Tehsildar was to call for Nanda and to question him as to whether any change had happened in his possession or not. Nanda was given no notice of these proceedings nor was he present before the Tehsildar. The effect of order dated 11 -7 -51, is just accepting the allegations of a sale by a person having no authority to enter into the same. The procedure was therefore lacking absolutely in the sanction of law and the order which is a result of such procedure ought to be completely ignored. The Tehsildar was the before justified in passing the order which he did on 28 -2 -52 which in fact would mean that the mutation which was pending before him on 11 -7 -51 shall be deemed to be still pending and shall be decided by him, in accordance with law and the observations made above. We would therefore, allow this revision, set aside the order of the Commissioner, Kotah and restore that of the Collector. The mutation shall be decided by the Tehsildar afresh as pointed out above.