- (1.) THE revision petition challenges the order of the learned Collector, Jhalawar, dated 3 -8 -63 whereby he accepted the appeal of the opposite party Smt. Birdhi and set aside the order of the Tehsildar conferring khatedari rights on the petitioner under section 19 of the Rajasthan Tenancy Act.
(2.) BRIEFLY , the facts of this case are that the Tehsildar, Jhalrapatan, conferred khatedari rights on the petitioner Nanda u/s 19 of the Rajasthan Tenancy Act. The case was transferred to his court by the Panchayat concerned for effecting mutaion. Between the same parties the Assistant Collector, Jhalawar, had also decided a suit for ejectment under section 183 of the Rajasthan Tenancy Act filed by Smt. Birdhi. The Assistant Collector had decreed the suit on the payment of an amount of Rs. 2500 by Smt. Birdhi to the defendant Nanda It had been held by the Assistant Collector that Smt. Birdhi had borrowed this amount as a loan from Shri Nanda and on repayment of this loan Shri Nanda should deliver possession of the entire suit land.
(3.) THE Collectors order has been assailed on the following grounds - - (1) The Collector had entirely misconstrued and mis -applied the principle of res -judicata on the basis of the decree of the court of Assistant Collector passed on 22 10 64 that decree related to suit under section 183 of the Rajasthan Tenancy Act and was passed conditionally subject to the repayment of loan of Rs. 2500 secured by the plaintiff Birdhi from the defendant Nanda. This judgment could not set as resjudicata as the issue in the instant case was the acquisition of the khatedari rights by Shri Nanda. (2) The objection of the applicant of the principle of res -judicata had not been taken in grounds of appeal before the Collector and this objection could not be taken at a later stage. (3) The Collector had set aside the Tehsildars order because he had not examined the nature of possession of the petitioner and also because the petitioner respondent Nanda had failed to produce the annual register. It was contended that the Collector should have remanded the case to the Tehsildar for ascertaining the nature and duration of possession of Nanda. The learned counsel for the petitioner argued that the proceedings before the Tehsildar were instituted on the report of the Patwari and there was no obligation on the part of Nanda to produce a copy of the annual register. He further argued that the Collector should have himself looked into the annual register in the interest of justice.;