TIWARI, M.—This is an appeal under Section 76 of the Rajasthan Land Revenue Act 1956 (in short 'the Act of 1956') against the impugned judgment dated 16.10.2007 of Divisional Commissioner Bikaner passed in first appeal No. 33/2007 'Sultan Singh vs. Adram'.

2. The facts in brief, leading to the second appeal are that an application under Section 136 of the Act of 1956 was filed by Ganga Ram, Ramjas and Mani Ram against Sultan Singh (the appellant-non-applicant) for recording share of applicants-respondents as 5/6th in the disputed land in place of 4/5th as recorded in the jamabandi Svt. 2029-to 2038 and change the share of Sultan Singh (appellant) to 1/6th in place of 1/5 as recorded in the above jamabandi. Assistant Collector vide his impugned judgment dated 15.6.1982 allowed the application ex-parte and ordered for changing shares of the parties as prayed for. Aggrieved against this judgment dated 15.6.1982 the appellant filed an appeal under Section 75 of the Act of 1956 before Divisional Commissioner Bikaner, which was dismissed by the Divisional Commissioner by his impugned judgment dated 16.10.2007. Hence the second appeal.

3. I have heard the learned counsel for both the parties.

4. The learned counsel for the appellant has argued that Assistant Collector passed the judgment dated 15.6.1982 under Section 136 of the Act of 1956 without issuing any notice to the appellant-non-applicant, depriving him of the opportunity of being heard. Thus, the order of Assistant Collector is against the principle of natural justice. The Assistant Collector has changed the share of khatedari rights of the parties under Section 136 of the Act of 1956 whereas under this section only clerical mistakes can be corrected. Share of khatedari right cannot be declared and changed under this section; as such the application filed under Section 136 of the Act 1956 was not maintainable before the Assistant Collector. When the first appeal was filed before Divisional Commissioner he did not pay attention to the illegality and irregularities mentioned above. Not only this, he even committed extreme material irregularity and illegality in holding that the first appeal before him was filed against a mutation order and as such he dismissed the appeal for not filing appeal against the impugned judgment dated 15.6.1982. This finding of Divisional Commissioner is patently wrong and illegal. The appellant has filed appeal only against the impugned judgment dated 15.6.1982 and not against any mutation order. As such both the impugned judgments of lowers Courts deserve to be quashed.

5. Arguing on behalf of the respondents, the learned counsel Shri N.K. Goyal candidly admitted that the appellant has filed first appeal against the impugned judgment dated 15.6.1982 of Assistant Collector and not against any order of mutation as held by Divisional Commissioner Bikaner. Thus, the finding of Divisional Commissioner based on alleged appeal against the mutation order was erroneous. He pleaded that there was nothing illegal in the impugned judgment dated 15.6.1982 of Assistant Collector.

6. I have given my thoughtful consideration to the arguments of learned counsels for both the parties, perused the impugned judgments of both the lower Courts and gone through the record available on the file.

7. Bare perusal of the impugned judgment dated 15.6.1982 of the Assistant Collector Hanumangarh shows that on an application filed under section 136 of the Act of 1956 by the applicants-respondents, Assistant Collector changed the share of applicants (respondents herein) from 4/5th to 5/6th and reduced the share of the appellant-non-applicant (appellant herein) from 1/5th to 1/6th so much as without issuing any notice to the non-applicant and without affording him any opportunity of hearing. This is allegedly done under the garb of correction of entry in jamabandi under Section 136 of the Act of 1956.

8. For ready reference, section 136 of the Act of 1956 is reproduced below:-

"136. [C

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