JUDGMENT :

1. Challenge in this appeal is to the order dated 03.05.2023 passed by the learned Single Judge, vide which the stay application moved by the appellant-petitioner has been dismissed.

2. It is the contention of the learned counsel for the appellant that the application as has been preferred under Section 251-A of Rajasthan Tenancy Act, 1955 (hereinafter referred to as ‘the Act of 1955’) would not be maintainable on the basis of the pleadings as the same has been preferred on the pretext that the path was available which was being utilized by the respondents and had been thereafter raised and included in the field by the appellant with a further putting on of the mesh wire blocking the same. This the counsel contends on the basis of the contents of Para 2 of the application submitted before the Sub-Divisional Officer (Annex.1 to the writ petition). He, on this basis, contends that all orders passed by the revenue authorities, proceeding on the assumption that the application under Section 251-A of the Act of 1955 would be maintainable, cannot sustain and deserve to be set aside.

3. It is the assertion of the counsel for the appellant that an application under Section 251-A would be maintainable only under circumstances when there is no path available and new path is sought to be carried out for use by the tenant or the khatedar.

4. Learned counsel for the respondents on the other hand contends that for an application under Section 251 of the Act of 1955, which is to be preferred before a Tehsildar, the requirement of a right to way, and that too having been recorded in the revenue records, is mandated and therefore, where no such path is recorded in the revenue record, the application under Section 251-A would be maintainable. His further contention is that the appeal itself is not maintainable as the proceedings are under Article 227 of the Constitution of India, which is a revisional jurisdiction.

5. Apart from that, learned counsel for the respondents has contended that the orders as passed by the revenue authorities have been given effect to and the path has been carved out and is in use by the respondents as of now.

6. Having considered the submissions made by the counsel for the parties, the question of the appeal being maintainable or not is kept open for the simple reason that there is an apparent non-exercise of powers by the learned Single Judge while passing the impugned order.

7. It appears that it was probably not brought to the notice of the Court with regard to the aspect as has been pointed out by the learned counsel for the appellant before us. It being a pure question relatable to the jurisdiction of the revenue court i.e. the Sub-Divisional Officer to entertain such an application which has been preferred under Section 251-A of the Act of 1955, whereas the said application would be maintainable before the Tehsildar. Exercise of powers by the Sub-Divisional Officer, that too under a wrong provision entertaining an application which would be maintainable under Sections 251 and not 251-A of the Act of 1955, would not be itself conferring power upon the authority to proceed with the application itself.

8. In light of the above legal position, we accept the present appeal and stay the operation of the impugned orders in the writ petition during the pendency thereof.

9. The appeal is allowed in above terms.