BAJRANGA Vs. KESRA

JUDGEMENT

(1.) This is an appeal against the judgment and decree of the learned Commissioner, Kota, dated 7 -12 -59 preferred by the unsuccessful defendants against whom a suit for ejectment under sec. 183 Rajasthan Tenancy Act had been dismissed by the learned Assistant Collector, Nainwa, vide his judgment dated 20.5.59.

(2.) We have heard the learned counsel for the parties and examined the record as well. The respondents brought the suit with the allegation that they had been cultivating the land for about 10 years and Khatedari rights had also been conferred on them on 25.8.57 and that the appellants had forcibly ejected them on 9.10.57. This was denied by the appellants who alleged their own possession on the land. The learned trial court after framing necessary issues and recording the evidence of the parties dismissed the suit on the ground that the plaintiffs (respondents) have not been able to prove their tenancy on the land nor had produced any notice of ejectment given by them nor had they proved their dispossession from the land on 9.10.57 as alleged by them. It was further observed by the learned trial court that on the other hand the respondent had been entered as trespasser in the Jamabandi from Smt. 2011 to 2016 and that, therefore, they could not claim any relief under sec. 183. The argument was that when they were themselves trespassers they could not be held entitled to have appellants ejected by styling them as trespassers. The learned Commissioner, however, observing that when vide mutation No. 55 Khatedari rights had been conferred upon the respondents, irrespective of the fact whether they had been rightly done so or not, the respondents had become Khatedars and in that capacity could have the appellants evicted as trespassers. A further point was brought about by the learned Commissioner that in their written statement itself the appellants had very clearly stated in the further plea that the disputed land had been let out to the respondents by way of Adholi in Shamil Kasht which was an admission on behalf of the appellants that the respondent; had the cultivatory possession of the disputed land. Yet again the learned Commissioner has pointed out that the name of the appellants does not anywhere appear in the village papers and as against it the name of she respondents was duly entered therein. On the basis of the above the learned Commissioner, holding that the respondents have been in cultivatory possession of the land for about 10 years and were entered as Khatedar on 28.8.57 and that the respondents had not been able to show under what authority they have come to occupy the land, declared the appellants as trespassers and ordered their ejectment. It is against this judgment and decree that this second appeal has been preferred.

(3.) The only point argued in this second appeal on behalf of the appellants is that when the -respondents were entered as trespassers over the suit land they could not be entered as Khatedar under the orders of Tehsildar and when they were not Khatedars of the disputed land they could not bring this suit. In fact the argument was the same as has been so ably repelled by the learned Commissioner. When the appellants in their wri:t:n statement had clearly stated that their mother had admitted the respondents as Adholiya one recognised as a sub -tenant by Bundi State Tenancy Act, 1942 and further that 4 years back i.e. in the year 1954 A. D. or Smt. 2011 the land had been taken back by the appellants and had been ever since under their cultivation, their names should have been on the record in the village papers somewhere in some capacity. It is a further plea of the appellants that the disputed land was originally their Mafi which had been forfeited by the State from their possession and the same continued as usual. These pleas raised by the appellants should be substantiated by the entries in the Records. In case they are not so, they, should be taken as wrong. There is on record a copy of the Khasra from the Svt. years 2010 to 2013 as well as a copy of the Jamabandi for the Smt. years 2011 to 2016. In the first 8 columns of Khasra Girdawari which contains a reproduction of the entries in the preceding settlement or the preceding Jamabandi the disputed land is entered as Bilanam in the column meant for the entries of the tenant and sub -tenant. In column No. 5 meant for the entry of the land -holder state has been written. It shows that contrary to the allegation of the appellants the disputed land did not remain in their possession on the Mafi having been confiscated but became out of possession of anybody and remained Parat. This entry is continued in Smt. 2010 also. In Smt. 2011 for the first time this land is shown as having been brought under Notor and the name of the respondents Sukha is entered as trespasser, probably meaning thereby that he brought it under cultivation without permission. This very entry has been reproduced in Jamabandi and continued up to Smt. 2016. Thus the en:ries in the revenue record belie the allegation of the appellant. True, the respondents cannot win their case on the weakness of the case of the appellants. But it cannot be ingored as a piece of evidence that the disputed land has never been recorded in the name of the appellants and has all along been recorded in the name of the respondent Sukha and once the appellants said that they took back the land from the possession of the respondents in 1954, who had been admitted as Adholiya (sub -tenant according to Bundi Tenancy Act) by their mother, the onus of proving that they had so taken the land back in a lawful manner shifted on them. It has been rightly found by the learned Commissioner that they have not been able to discharge this burden of proof. The learned trial court too has not found anything against it. Under the circumstances of the case it would be taken, and rightly so, that the appellants dispossessed the respondents wrongfully. Even when we do not treat the respondents as khatedar of the land, they certainly have a better right of possession over the disputed land than the appellants, and if it has been found as above that the later have wrongfully taken possession thereof from the former, a person in possession of the land and paying rent therefor as is evident from the copy of the Jamabandi on record, even without having been conferred upon the rights of Khatedari would be taken to be entitled to bring a suit for the ejectment of any other person taking possession of the disputed land without a lawful authority. For, under such circumstances the man in possession will certainly be entitled to admit the person preceded against as a tenant thereon. The respondents had thus a right to bring this suit under sec. 183 Rajasthan Tenancy Act, against the appellant, and the same has been rightly decreed in their favour by the learned Commissioner Kota. We, therefore, confirm the decision of the learned lower appellate court and reject this appeal.