- (1.) By way of this appeal, the appellant has assailed the judgment and order of the learned Single Judge whereby learned Single Judge has allowed the writ petition filed by the respondents herein.
(2.) The matter was listed earlier when we adjourned the same. We also called upon the counsel who has appeared before the learned Single Judge for the petitioners but he declined on the ground that petitioners had not contacted him.
(3.) Counsel for the appellant contended that the learned Single Judge while allowing the writ petition has merely relied upon the decision and finding of the earlier decision under Rajasthan Tenancy Protection Ordinance, 1949 and has not considered division bench judgment in the case of Panna v. The Board of Revenue for Rajasthan and anr. reported in AIR 1958 Rajasthan 74 wherein it has been held as under:- "18. As we read the decision in Babu Bhagwan Din's case (A), we think it lays down that if any of the three conditions mentioned by their Lordships of the Privy Council are present, the order in the previous proceedings might be res judicata on general principles. But if none of those three conditions are present, the order in the previous proceedings cannot be res judicata even on general principles. In the present case, none of these three conditions is satisfied. The proceedings are summary and are not of the same character as a suit. There is no provision for appeal and there is no provision in the Ordinance making the order final. In these circumstances, we are of opinion that the decision arrived at in proceedings under the Ordinance cannot be res judicata in a subsequent suit between the same parties. The decision, therefore, of the Board of Revenue holding that the previous decision in proceedings under the Ordinance is res judicata on two of the issues arising in the suit is erroneous. By arriving at this erroneous decision, the Board has precluded the revenue Court from exercising jurisdiction and deciding the suit after taking evidence of the parties on issues Nos. 4 and 5 and hearing them. The order must, therefore, be set aside and the suit sent back for decision, after giving opportunity to the parties to lead evidence on these as well as other issues.";