Bapna, J. - (1.) THIS is a petition under Act. 226 of the Constitution.
(2.) RESPONDENTS, Soonda, Harkesh, Kana and Man Singh, mode an application to the Sub Divisional Officer, Behror, for reinstate-ment under sec. 7 of the Rajasthan Protection of Tenants) Ordinance (No. 9 of 1949) in respect of 11 bighas and 12 biswas of land covered by khasra Nos. 602 to 607 and 610 in village Shahjahanpur, Tehsil Behror, on the ground that they had been dispossessed by Shivlal Singh and certain other persons. Various objections were raised by Shivlal Singh and his party & one of them was that Shivlal Singh was serving in the Army and had been discharged from service after the commencement, of the said Ordinance and took over possession of the land for its cultivation. It was also pleaded that Soonda and others had voluntarily relinquished their possession over the land and that in any case the application was barred by time. The Sub Divisional Officer by his order dated 19th December, 1952, found that there was no relinquishment, that the application was within time and that although Shivlal Singh was a discharged military officer he could not take the law in his own hands and dispossess the cultivators. He directed reinstatement of Soonda and others. A revision to the Board of Revenue was dismissed by order dated 2nd September, 1953. The present petition was filed on 3rd October, 1954, and it is contended that the Board of Revenue did not take into consideration the plea advanced before it that the provisions of the Rajasthan (Protection of Tenants) Ordinance were not applicable to the case. We have perused the judgment of the Board of Revenue and the ground of revision presented before it and it is evident that the plea, based on the notification of the Government dated 11th January, 1951. exempting the operation of the R.P.T.O, to lands belonging to military personal who had been discharged from service after coming into force of the Ordinance, has not been taken into consideration by the Board of Revenue. The finding of the Sub-Divisional Officer that Shivlal Singh was one of the proprietors of the land has not been assailed. The observation of the Sub Divisional Officer that Shivlal Singh had no authority to dispossess the cultivators because of his position as an ex-officer of the military may not be open to serious contention but the point is whether a person who alleges to have been so dispossessed can have his remedy under the R.P.T.O. when the notification of 11th January, 1951, clearly exempted lands held by officers of military discharged from service from the operation of the Ordinance It was argued by learned counsel for the respondents that Shivlal Singh was only one of the proprietors and his share had not been specified and, therefore, the exemption notified by the Government could not be taken advantage of in this case. The argument is not sound for if Shivlal Singh was admittedly one of the proprietors his interest as an owner extended to the entire land. He was a joint owner with others and until the land could be partitioned his ownership could not be limited to any specified portion of the entire land. The provisions of the R.P.T.O. could not be enforced in the present case and the Sub Divisional Officer had no jurisdiction left to pass an order under the R.P.T.O. The Board of Revenue in overlooking the plea raised by the petitioner Shivlal Singh had committed a patent error of law. The order of the Board of Revenue dated 2nd September, 1953, is set aside and it is declared that the Sub Divisional Officer, Behror, had no jurisdiction to entertain proceedings in respect of the land in dispute. The petitioner will get his costs from respondents Nos. 2,3,4 & 5,which are assessed at Rs. 50/-.;