NAGASINGH Vs. BHERUSINGH

JUDGEMENT

(1.) THIS is an application for review against the order passed by Shri Y. Bhargava, Member, Board of Revenue, on 17-12-62. Under section 51 (2) of the M. P. Land Revenue Code, 1959, no order shall be reviewed except on the grounds provided for in the Code of Civil Procedure. Of the three grounds for review mentioned in the Code of Civil Procedure the ground for review according to the counsel for the applicant is that there is a mistake apparent on the face of the record as Shri Bhargava in his order did not discuss the points mentioned in paragraph 4 of the application for revision presented before the Board. The counsel for the non-applicant argued that Shri Bhargava was right in not discussing the points mentioned in paragraph 4 of the application for revision as the counsel for the applicant did not discuss these points in his arguments before Shri Bhargava.

(2.) I shall first discuss the argument of the counsel for the non-applicant that it is not necessary to discuss in the order any point which has not been discussed in the arguments made before the officer passing the order. The application for revision is in fact a written argument presented before the Court and the subsequent oral argument is only an elaboration and clarification of the points mentioned in the application for revision. If in a case the counsel for the applicant does not argue or refuses to argue then the Court will have to go through the application and discuss the points mentioned in it. So the failure of a counsel to discuss certain important points mentioned in the application for revision does not mean that the Court can completely ignore those important points. So the argument of the counsel for the non-applicant is unsound and the Court will have to consider the important points in the application for revision although they are not discussed in the oral arguments.

(3.) I shall now discuss the points in paragraph 4 of the application for revision which were not discussed by Shri Bhargava in his order. I shall first discuss the status of tenants who do not have a patta. According to the counsel for the applicants-tenants having no patta have practically no rights under the law and are not entitled to possession when they are dispossessed and could have at the most compensation for one year. The counsel for the applicant read out section 283 of the Kanoon Mal in support of his contentions. Section 288 of the Kanoon Mal only states that every Gair Dakhilkar Kashtakar must get a patta from the Malguzar and should also execute a Kabuliyat in favour of the Malguzar. Section 283 of the Kanoon Mal also states that if a patta or Kabuliyat is not executed.the parties can apply to the Tahsildar who shall get the patta and Kabuliyat executed. Section 284 of the Kanoon Mal states that if there are some disputes on account of there not being a patta or Kabuliyat these disputes shall be settled by the Tahsildar and officers superior to him. There is nothing in the Kanoon Mal which draws a sharp distinction between Kashtkars having patta and Kashtkars not having patta. In section2(27) the word 'Kashtkar' has been defined as a person who is liable to pay rent or who would have been liable to pay rent if there had been no contract expressed or implied to the contrary. Coming to the present case it is clear from the copy of the Khasra for Samvat 2003 issued on 15-5-47 which is found in the Tahsil office records that in Samvat 2003 Bherusingh was a Gair Dakhilkar tenant in possession of the land for ten years and paying an annual rent of Rs. 14. When Bherusingh has been in undisturbed possession for ten years paying an annual rent of Rs. 14 which has obviously been accepted by the applicant it cannot be said that there is very- little difference between Bherusingh and a trespasser simply because of the fact that the agreement between Bherusingh and the applicant was not put in writing in the forms of patta and Kabuliyat. On account of the oral understanding between Bherusingh and the applicant, Bharusingh was liable to pay rent for the lands held by him and so he comes under the definition of Kashtkar as given in section 2 (27) of the Kanoon Mal. As Bherusingh was not a Maurusi Kashtkar he was clearly a Gair Maurusi Kashtkar. The Kanoon Mal does not make any distinction between Gair Maurusi Kashtkars having patta and Gair Maurusi Kashtkars not having patta.