VERMA, J. - (1.) THIS writ petition has been filed by Mithu Singh, whereby he has challenged the order of the learned SDO, Sri Ganganagar dated 17. 1. 83 (Annexure-1) whereby the right of way was granted to respondents 4 & 5 in the land belonging to the petitioner.
(2.) THE grievance of the petitioner is that he was not heard by the learned SDO before the impugned order was passed. According to him, a partition had taken place between the petitioner and his brothers Roop Singh, Lalsingh and Ajaibsingh on 14. 6. 74 whereby the land in question fell to his share. THE petitioner filed an appeal against the said order before learned Revenue Appellate Authority, Bikaner camp Sri Ganganagar. Learned Revenue Appellate Authority accepted the appeal and set aside the impugned order vide his judgment dated 14. 9. 83. Aggrieved, respondents 4 & 5 went in second appeal before Board of Revenue. This appeal was decided by Shri O. P. Jain, learned Member of the Board of Revenue vide Judgment dated 1. 3. 89 whereby the learned Member accepted the appeal and set aside the order of Revenue Appellate Authority and restored the order of learned SDO, Sri Ganganagar (though this order erroneously mentions Additional Collector in place of SDO ). Now, Mithu Singh has filed this writ petition. The principal contention of the petitioner is that he was living separately from his brothers Roop Singh, Lal Singh and Ajaib Singh and a partition had taken place among the brothers. The land in which way was granted by learned SDO in favour of respondents Teja Singh and Jaswant Kaur had fallen to his share and, therefore, learned SDO was not right in granting a passage to these respondents without hearing him. The learned counsel for Teja Singh and Jaswant Kaur opposes this writ petition. By consent of all concerned, we have heard this writ petition finally at the admission stage itself. Learned counsel for the petitioner has filed a photo stat copy of the partition dead whereby the partition was effected amongh the brothers Mithu Singh, Roop Singh, Lal Singh and Ajaib Singh, all of whom are sons of Bachan Singh. Shri HSS Kharlia has produced for our perusal the original documents which shows that it is a registered one. Learned Member, Board of Revenue was of the opinion that since a joint appeal had been filed before RAA by Roop Singh, La Singh and Ajaib Singh, it should be inferred that their interest were common and, therefore, Mithu Singh should be held bound by the order of the learned SDO even though the learned SDO had not heard Mitthu Singh. After hearing the learned counsel for the parties, we are of the opinion that Mithu Singh ought to have been heard by the learned SDO before passing order Annexure-1. Order Annexure-1 is bad in law in as much as it was passed at the back of the petitioner without giving him any opportunity of hearing. Annexure-2 cannot be justified on the ground that appellant Mithu Singh was joined by his brothers in filing the appeal before the RAA. When it was so, the subsequent orders Annexure-3 and Annexure-4 also fall to ground. We accordingly accept this writ petition, set aside the order of the learned SDO dated 17. 1. 83 as also the orders passed by RAA and the order of learned Member, Board of Revenue and remand the case back to the learned SDO. The parties are directed to appear before learned SDO Sri Ganganagar on 30. 10. 91. The learned SDO shall give the parties an opportunity of leading evidence before him with respect to such contentions which they choose to raise before him. He shall, thereafter, hear the parties and will decide the matter within a period of four months from today. (7) To ensure that justice is done to all concerned, the learned SDO shall hear all such persons who are likely to be affected by the application of respondents Teja Singh and Jaswant Kaur for grant of way. . ;