Hon'ble RAFIQ, J.—This writ petition has been filed by the petitioners against the judgement of the Board of Revenue dated 2.6.1997. The Board of Revenue by the aforesaid judgment allowed the appeal filed by the respondents-herein and reversed the judgement of the Revenue Appellate Authority dated 12.4.1988, dismissing the appeal of the respondents and the judgement and decree passed by the learned Assistant Collector, Bayana dated 18.3.1988, by which the suit for declaration and injunction filed by the plaintiff-petitioners was decreed.

2. Jawali, predecessor-in-title of petitioners filed the aforesaid suit inter alia on the premise that he was in possession of the land of khasra No. 1177 measuring 14 bighas and 9 biswas. He was co-sharer with his brother and had one half share in the land. In the record of rights, he was inadvertently shown as Shikami (Sub-tenant), whereas the other brothers namely Santokhi and Lohare have been shown as its khatedars. During the pendency of the suit, Santokhi expired and therefore his legal representatives were brought on record. Ex-parte proceedings were initiated against defendants even after impleadment of legal heirs of Santokhi. The defendant Lohare filed an application for setting aside the ex parte proceedings which was dismissed and the appeal filed thereagainst was also dismissed by the Revenue Appellate Authority, Bharatpur. The learned Assistant Collector, Bayana decreed the suit vide judgment dated 18.3.1988. Against which, appeal was filed by the respondents before the Revenue Appellate Authority, which was dismissed, but subsequently second appeal filed by them before the Board of Revenue was allowed. Hence this writ petition.

3. Shri Shankar Lal Sharma, learned counsel for the petitioner has argued that petitioner-Jawali was neither trespasser, nor did he claim khatedari rights with reference to Section 15 and 19 of the Rajasthan Tenancy Act. He was in fact co-sharer and had approached the Court with the grievance that in the record of rights, his name has been wrongly indicated as sub-tenant. He produced the receipts of payment of land revenue for Svt. 2017, 2019, 2023, 2024, 2028, 2029, 2030, 2031. He also produced the copies of khasra girdawari of Svt. 2017-23, 2024 and 2031. Three witnesses namely Jawali, Vandana and Durga Prasad in their statement gave version that plaintiff was co-sharer of one half of land and he had an equal share in this land along with his brother Santokhi. It was argued that learned Assistant Collector rightly decreed the suit holding that petitioner and respondent Santokhi were real brothers. The Board of Revenue overlooked all these facts and also the documentary evidence whereby it was amply proved that petitioner had equal share in the disputed land. In fact, defendant Lahore in para 8 of the written statement himself admitted that plaintiff was Khatedar/Kashtkar of the land in dispute. In earlier suit for declaration, a compromise arrived at between the parties wherein it was agreed that petitioner was co-sharer and had half share in the land in dispute.

4. Learned counsel for the petitioner referred to the khasra girdawaris of Svt. 2015-2019, 2019-2023, 2024-2027 and 2028-2031 which are on record and argued that in all of them, name of petitioner has been shown as co-khatedar in the land of khasra No. 1177. This aspect of the matter has completely been ignored. Learned counsel submitted that since the matter was decided ex-parte against defendant-respondents, they did not contest the matter before the first Court and if at the Board of Revenue wanted to give them opportunity to contest the suit, the appropriate course was to remand the matter, rather than dismissing the suit because in that event, plaintiff-petitioner would have got the opportunity to meet the case set up by the defendants. The first Court did not have the advantage of examining that evidence. Learned counsel in support of his arguments relied on the judgement of this Court in Ka

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