- (1.) THIS revision has been presented against order the of Collector/jhunjhunu dated 10-12-65. The relevant facts are that on 29-7-1963 Begaram, plaintiff, non-applicant here presented an application before the Tehsildar, Jhunjhunu under sec. 251 of the Rajasthan Tenancy Act against Dungar, defendant, applicant here. Opening 6f road was requested which Dungar was alleged to have closed. The case was transferred to Panchayat Kodesar and on 5-9-1965 it allowed the plea of Begaram. Dungarram went in appeal before the Collector, Jhunjhuuu and failed and hence this revision.
(2.) I have heard the advocates for the parties and have perused the record. The advocate for petitioner stated that neither the Panchayat nor the Collector had given a decision on the issue raised by his client that the road in question was a public one and so sec. 251 of Rajasthan Tenancy Act was not attracted. It was pointed out that sec. 251 excluded recognised roads, paths or common land mentioned in settlement Records. It would operate only when a private way is obstructed. The Advocate for non-applicant conceded this proposition of law but stated that it had not been presented before the Collector, Jhunjhunnu nor had it been mentioned in the Memo of Revision before this court. It was further pleaded that the way in question was a private way and so sec. 251 Rajasthan Tenancy Act was attracted. I have considered the matter. 1 find that at the very out set when the application was presented before the Tehsildar, Dungar Ram raised this issue but no clear decision has been given on it by any court. ' In the course of order which was passed on 18-11-1963 in a previous appeal the point was squarely stated by the Collector but he gave no finding on it. In the impugned order the Collector has not referred to this point at all. It appears that it was not argued before him. In this order the Collector has dealt mainly with the question of transfer application and its notice. That this issue has not been mentioned in Memo of Revision before this court does not preclude its being raised. I find that no clear decision had been given by the Panchayat whether it was a private way or a public one, in spite of the fact that Dungar Ram has raised this issue clearly in his written statement. A copy of the deposition of Gegaram in some other case is there on the file in which he has stated that obstruction of the way hindered the movement of the public and that it had been shown in settlement records. There is also a map signed by some-body attached to the original application in which also the way has been shown as a public one. The very jurisdiction of the Panchayat would depend on the decision of this question. I, therefore, accept the revision arid setting aside the orders of the Collector, Jhunjhunu and the Panchayat Kodesar remand the case to the latter with-the direction that the parties should be re-heard and a fresh decision should be given in the light of the above observations. A clear finding whether the disputed road was a public or private one was necessary in addition to any other, points. Pronounced in open Court. . ;