1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ------------------------------------------------- SPL. APPL. WRIT No. 84 of 2002 KANIYA V/S STATE OF RAJ. & ORS. Mr. R.K.MEHTA FOR MR. J.M.BHANDARI, for the appellant. Mr. O.P. Boob, Govt. Advocate, for the respondent. Date of Order : 3.9.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. ORDER ----- This appeal has been filed, seeking to challenge the order of the learned Single Judge, dated 18.12.2001, dismissing the writ petition summarily, interalia observing, that learned counsel wants to rely on secondary documents, which have been produced before this court, but he had not taken care to produce these documents before the courts below. Thus, the petitioner can not be permitted to rely on these documents. Then, it has been observed, that there is a difference in identity, as the patta was issued by the Jagirdar 2 to Lakha, Kaniya grand son of Gova, while mutation entered in name of Kania S/o Narsa, this has been taken to be a finding of fact, not capable to be gone into in the writ jurisdiction; more particularly, when no serious contest was made, by the petitioner, at the time, when the matter was considered, by the courts below. It has also been observed, that the documents, produced before this court, are neither certified copies, nor original, and were not produced before the courts below, thus, they cannot be looked into. From perusal of the record available, before the learned Single Judge, we find, that the copies of the judgments of Tehsildar dated 20.3.1974 and 18.11.1978 in case No. 168/73 and 236/1978, were produced on the record, then Kania has patta from the jagirdar 'Bhaiswada', issued in the year 1947, and the learned Collector has noticed, that when the proceedings were dropped, there was no direction to record mutation, therefore, mutation has been found to be invalid and reference was made. 3 Thus, it is clear, that the basis of the assumptions, made by the learned Single Judge, is not actually correct. In that view of the matter, instead of ourselves going into the merits of the case, we think it appropriate to set aside the impugned order, and remand the matter back, to the learned Single Judge, to entertain the writ petition, and decide it on merits. Accordingly, the appeal is allowed, the impugned order is set aside, and the matter is remitted back to the learned Single Judge, for entertaining the writ petition, and deciding it, on merit, in accordance with law. (KISHAN SWAROOP CHAUDHARI ),J. ( N P GUPTA ),J. /ns./