Decided on April 26,1955

DAUDAS Appellant
STATE Respondents


- (1.) THIS is a revision application wrongly styled as an appeal under Sec. 34 of the Marwar Patta Act, 1922 against the appellate order of the learned Additional Commissioner, Jodhpur dated l-10-53,who confirmed the order of the Patta Committee agreeing with the Patta Officer in refusing to grant patta of the land in question to the applicant on the ground that is was an open Khalsa land.
(2.) WE have carefully gone through the record of the case and heard the learned counsel appearing for the applicant and the Government Advocate. Gulab Chand, the objector being absent despite notice, the hearing was ordered to be ex-parte against him. Put briefly the facts of the case appear to be that the applicant Daudass applied for grant of a patta of an open piece of land lying near Gangalao in Jodhpur City with the averment that he had purchased the same from one Anant Ram on 21-1-1936, to whose ancestors it was mortgaged by one Amardas in Svt. 1885 who held a patta for it dated Svt. 1874. Gulab Chand resisted this application on the ground that the land was not covered by any patta ; that it was an open Khalsa land used by the residents of the mohalla. Since Gulab Chand did not appear before the patta officer, his objection petition was dismissed in default. The Patta Officer then directed the applicant to prove his claim. The petitioner, after a few adjournments examined only Anant Ram the vendor and closed his evidence. On the basis of the material on the record the Patta Officer observed that as the land in question was not proved to be the same which was sold to the applicant, it should be declared as open Khalsa. He, therefore, refused to grant patta to the applicant. The same view was held by the Patta Committee. In appeal before the learned Additional Commissioner, the applicant met the same fate. Hence this revision to this courts. The main contention of the learned counsel for the applicant is that the Patta Committee decided the case behind his back without giving him a hearing. This point was also raised before the Additional Commissioner who after a scruting of the record observed that the Patta Committee neither inspected the site, nor heard the applicant and yet. curiously enough he overruled this contention on the ground that as there was sufficient material on the record, he could decide the case on its merits. We are constrained to remark that the procedure adopted by the learned Additional Commissioner has definitely prejudiced the rights of the applicant, and caused material irregularities justifying an interference by this court in the exercise of their revisional powers within the meaning of sec. 34 of the Patta Act We ourselves examined the record and found that on 24-5-52 the Patta Committee while dismissing the objection petition of Gulab Chand ordered that 'the case be put up for site inspection.' On the 9th July, 1952, the order given was 'parties absent' 'File be put for inspection of site on 17-7-52 and for hearing arguments on 19-7-52.' The file does not seem to have been put up on 19-7-52 nor does the site seem to have been inspected on 17-7-52. Again on 29-11-52 the order given was 'Applicant absent. Ujardar present. Site not inspected. File be put up for site inspection on........(date not give) and argument be heard on.......date not given). On 17-1-53 the Patta Committee without inspectinng the site and without hearing the applicant confirmed the order of the Patta Officer and ordered that the land in question was an open Khalsa land and a patta could not be given. The above proceedings clearly show that the Patta Committee clearly contravened the mandatory provisions of proviso to Sec.28 of the Patta Ordinance, 1922 as amended and published in the Jodhpur State Gazette, August 7, 1943 which reads as below : - "Provided no modification or refusal to sanction shall be made without the person, whose interests are affected, being called and beard........." In view of these facts, the right course for the Additional Commissioner was to remand the case to the Patta Committee for giving a hearing to the applicant and the inspection of the site if necessary. Since he failed to do so and grave injustice seems to have been done to the applicant, we set aside his order, allow this revision and remand the case to the Patta Committee with the direction the applicant should be heard and the case be disposed of according to law.;

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