JEEWAN RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) THE petitioners who are residents of village Gagdiyala were recorded as persons in possession of land in Samvat 2012 in the `lands summary'. THE common premises are that prior to 2012 before commencement of the Tenancy Act, no land records were kept in respect of the land in question by the erstwhile State; the petitioners had filed a suit for declaration before the Assistant Commissioner (Colonisation), Kolayat that they are the Ghair Khatedari tenants, that suit was decreed on 9.7.1986. THE learned Assistant Commissioner (Colonisation) relied on the entry in the land summary of Samvat 2012, the land revenue receipt, the copies of Girdawari of Samvat 2015 to 2028 as well as copy of the Dhalbanch for the same period and oral testimony of the witnesses of the villagers in support of their claim that they were in possession of the land since long time before the Tenancy Act since the time of their ancestOrs. THE land revenue was fixed for 230 bighas of land. Since the land fell within the colony area and in terms of Sec. 15-A of the Rajasthan Tenancy Act no Khatedari could be declared, the petitioners were declared to be Ghair Khatedar tenants. It may be noticed that the land was not recorded in Samvat 2012 as Rakba Raj. After 10 years of the aforesaid order, the Collector cum Dy. Colonisation Commissioner, Bikaner, made a reference to set aside the order passed by the Assistant Commissioner on 9.7.86 and the Board of Revenue by its order dated 7.8.98 has accepted that reference by holding that the petitioners have not been able to prove their continuous possession from 15.10.55 to 1983 which was necessary for acquiring right under Sec. 15-AAA but the petitioners have been able to prove their possession only from Samvat 2012 to 2018 and not thereafter and there being no provision of declaring the petitioners as Ghair Khatedars in the Rajasthan Tenancy Act, the order dated 9.7.86 was set aside.

(3.) SEC. 14 of the Tenancy Act classifies the types of tenants which have been recognised under the Act. The Act recognises four types of tenants namely; Khatedari tenants, Maliks, tenants of Khudkasht and Ghair Khatedar tenants. Therefore, Ghair Khatedar is a statutory term used by the Legislature to express such class of tenants who do not fall in any other class of Khatedar tenants. Under SEC. 5(43) expression tenant has been defined to mean `the person by whom the rent is, or but for a contract, express or implied, would be, payable and would include number of persons but would not include a grantee at a favourable rate of rent or an ijaredar or thekadar or a trespasser.' This Court has held in number of decisions that a Ghair Khatedar tenant cannot be considered to be a trespasser. His possession is juridical and he has to be dealt with a person in juridical possession.