MADHO Vs. KALYAN

JUDGEMENT

(1.) This is a second appeal against the judgment and decree of the learned Commissioner Kotah dated 3.6.59 whereby he upheld the judgment of the Sub -Divisional Officer, Kotah dated 20.5.58 decreeing the suit of the respondent for ejectment of the appellant from the suit land.

(2.) The facts of the case are simple and not much in dispute, as would be evident from the depositions of the parties. The suit land belonged to one Dewa the maternal grand -father of the respondent, Dewa, it appears, had no son of his own and so brought up both appellant and respondent and got entered in his own life time through a regular mutation as per Kotah law on the subject (to which unit the case relates) his lands separately in the names of both the parties. The suit land was got entered in the Khata of the respondent on 1.2.47. The respondent was a minor at that time and land continued to be managed on his behalf by Dewa himself until he died in Svt. 2013. They all lived together till then and land was also cultivated similarly. The land was, however, entered in the Revenue Records in the Khata of the respondent with the appellant as "Zeli" On death of Dewa, the respondent asked the appellant to quit the land, which was not complied with by the latter. He also refused to recognise the respondent as the Khatedar of the land and pleaded his own title on the basis of his cultivation as "Zeli" (sub -tenant) since long. Both the learned courts below held, relying on 1956 R.R.D. 299, that as no relationship of tenancy or payment of rent had been proved to exist between the parties, the appellant became trespasser the day he retained possession over the land after he was asked to quit the same, and ordered his ejectment. Hence this second appeal.

(3.) We have heard the learned counsel for the parties at length and examined the record too carefully. The only point urged before us on behalf of the appellant and involved for determination is whether notwithstanding his name having been entered as "Zeli" in the Revenue Records, the appellant could be styled as trespasser and ejected as such. 1954 RLW 672 - -a Writ Petition under Art. 226 of the Constitution - -has been cited by the learned counsel for the appellant in this behalf, and it has been urged relying on 1959 RLW 381, 1950 R.R.D. 182 and 1956 RRD 186 that the entry of "Zeli" in the Revenue Record carried a presumption of correctness and must be depended upon. There can not be any dispute about the presumption of correctness of an entry in the Revenue Records unless proved to the contrary as laid down in the rulings relied. But it is always open to interpretation, as rightly contended by the learned counsel for the respondent, as to what those entries meant and as held by the Supreme Court in AIR 1960 S. C. 195 the precedents on facts can be precedents only on those facts. The appellant was entered as "Zeli" long before the coming into force of the Rajasthan Tenancy or Land Revenue Acts. That entry was, therefore, under the provisions of the Kotah circular No. 3 Sigha Mal and was repeated by that very term only for one year 1956 after the enforcement of the Rajasthan Acts. It is in this context that this entry was to be read and interpreted. In 1954 RLW 672, cited on behalf of the appellants the point for determination was whether an applicant treating the opposite party as "Zeli" could turn out all of a sudden in the High Court and say that the latter was a trespasser and it was decided that he could not be allowed to do so. Whether the mere entry of a person as. "Zeli" would make him a sub -tenant was not at all examined in that case. This examination is very important for vide Sec. 69 of the above referred Kotah Circular every person (other than a mortgagee with possession) cultivating the land of another Khatedar was a "Zeli" and had to be entered as such. Vide sec. 70, such a "Zeli" did not acquire any rights other than those specified in the agreement entered into with the Khatedar of the land. Unless there was an evidence to the contrary, a "Zeli" was deemed vide sec. 74 to be occupying the land only for one agricultural year; and if there was no period fixed as such, af "Zeli" could be. dispossessed from the land on an application of the Khatedar entered in the mutation register before Akshey Teej (somewhere in mother of April) in any year. These provisions went to establish that there could be a "Zeli" entered in Kotah even without there having come into existence a relationship of tenancy and payment of rent between the parties only by his cultivating the land of another Khatedar under any circumstances which did not constitute him, a mortgagee. Admittedly, there has not been alleged, not to speak of proved, any contract of Sub -tenancy or payment of rent between the parties in this case.