MANOHARLAL Vs. GANGARAM

JUDGEMENT

(1.) THIS is an appeal against the order of Land Records Officer, Alwar dated 11. 4. 59 in a matter for correction of entries in Khasra Girdawari from Svt. 2002 to 2014 over the disputed land. The correction was applied for by the respondent Nanag Ram on the ground that he had been cultivating this land ever since Samvat 2002 when it was leased out by the appellant Manoharlal to him, but who had in collusion with the Patwari been continuing to get the same entered in his name wrongly. It was also alleged that in Samvat 2012 the land had been entered in the name of respondent Nanagram and in Svt. 2013 and 2014 the entries had been made 'badastoor' but that later on it was also got changed in the name of the appellant in collusion with the Patwari. The appellant denied that the respondeat Nanag Ram had ever been in possession of the land and contended that two Khasra Nos. 2006 and 2007 were and have always been in his exclusive possession and Khasra No. 1409, 2021 and 2022 were in possession, as mortgagee, of himself and two others Jialal and Kishorilal. The learned Land Records Officer, Alwar after having enquired into the matter came to the conclusion that the land had all through this period been under the cultivatory possession of the respondent Nanagram and never in that of the appellant Manoharlal, who was also a Patwari and had not been able to tell the names of the persons who had been employed by him to cultivate the land. We have heard the learned counsel for the parties and have examined the record as well. The respondent Nanagram has produced the cultivators of the adjoining fields who have all stated that the said land had all along the period under dispute been in the cultivatory possession of the respondent. We have, therefore, no hesitation in coming to the same conclusion as the learned Land Record Officer has arrived in the matter specially when the appellant, who has claimed that he had been getting it cultivated through servants, has not even been able to give out the names thereof or produce them in evidence.

(2.) THE land under dispute is, however, admittedly comprised in a Biswedari estate that has vested in the State consequent upon the issuing of a notification under the terms of the Rajasthan Zamindari & Biswedari Abolition Act, 1959. (hereinafter referred to as the Act) THE contention of the learned counsel for the appellant is that this appeal and the application in which these proceedings started both should therefore abate. We have given notice to and heard the learned counsel for the parties on this point also. Sec. 5 (2), of the Act is the relevant provision in the matter. It lays down, "subject to any rules made in this behalf, all suits and proceedings relating to such estate pending in any court, civil or revenue, at the date of vesting, and all proceedings consequent upon any. decree or order passed in any such suit or proceeding before any such date shall be stayed". R. 5 of the Rules framed under the Act further provides that "every suit or proceeding, whether pending in the court of first instance or in appeal or in revision, stayed under clause (b) of sub-sec. (2), of sec. 5 of the Act shall be abated by the court or the authority before which it may be pending after giving notice to the parties and giving them an opportunity of being heard. " Thus it would be the suit or proceeding pending before any court at the date of vesting or a 'proceeding consequent upon any decree or order passed in such a suit or proceedings before such a date' that would be 'stayed' under the terms of section 5 (2) (I) and only what be so 'stayed' that would be 'abated' in terms of R. 5. THEre is no provision in law to 'abate' what has not been 'stayed' under Section 5 (2) (1 ). Notes there any provision to 'stay' what is not 'pending' at such a date. At the date of vesting it was only the present appeal that was 'pending'. This alone could be 'stayed' under Sec. 5 (2) (1) as being a 'proceeding consequent upon an order' passed before the date of vesting in a proceeding for the correction of entries. And consequently it is this appeal alone which could be 'abated' under R. 5 and not the original application also. We have been referred to 1958 R. D. 271 - Bisdei Keur vs. Mata Din Misir in this connection in which M. C. Desai, J of Allahabad High Court has been pleased to hold that when a suit had been decided before the date of vesting, it ceased to be 'pending' on that date, and it would be only the appeal or revision preferred against it, that would be deemed to be 'pending' then. Further it was also observed therein that if the suit had been dismissed and the plaintiff had preferred an appeal, it would be the 'suit' that could be deemed to be 'pending' but not if the suit had been decreed in which case only the appeal or revision, if any, would be deemed to be 'pending'. As against this may also be referred 1955 ALJ 614 - Hiralal vs. Mst. Bilia, wherein Mehrotra, J. of the same High Court had been pleased to observe that Rule 5 (of U. P.) empowered the appellate court to pass an order of 'abatement* in respect of a suit from which the appeal had arisen even though the suit had terminated. THE reason advanced was that as soon as an appeal was filed against the decree passed by the trial court, the decree of the trial court was kept in suspense, and the suit was revived till the decree was passed by the appellate court in which the decree of the trial court would merge. It was also remarked that it was why it had been provided in Rule 5 that the appellate court before which an appeal was pending could order the abatement of the suit also even though it was no longer pending before the trial court. THE former decided the interpretation of R. 4 of U. P. and the latter of R. 5 of U. P. R. 4 of U. P. reads: " (1) All suits and proceedings, whether of the first instance, appeal or revision, of the nature as herein below specified in respect of the area for which a notification under sec. 4 has been issued, pending in any court for hearing on the date of vesting. . . . . . . (2 ). . . . . . . shall be stayed". Role 5 (U. P.) reads : "every suit, or proceeding, whether pending in the court of first instance or in appeal or in revision, stayed under clause (i) to (iii) and (v) of Rule 4 shall together with appeal or revision, if any, be abated by the court or the authority before whom it may be pending after notice to the parties and giving them opportunity of being heard". It would be seen that there is no Rule analogous to R. 4 of U. P. in Rajasthan; and even R. 5 of Rajasthan does not contain words like those underlined above "together with appeal or revision, if any". Even secs. 6 (i) U. P. and 5 (2) (1) of Rajasthan differ materially in the respect that in U. P. only the suits or proceedings of the 'nature to be prescribed' are to be 'stayed', whereas in Rajasthan 'all' suits or proceeding 'relating to an estate' are to be 'stayed'. Rule 4 (U. P.) prescribes such suits which is not necessary to be done in Rajasthan. THE observations in 1958 RD, 271 meant to interpret words 'whether of the first instance, appeal or revision' occurring after 'proceedings' in Rule 4 of U. P. would therefore not hold good in case of Rajasthan. So also the observations in the other citation 1955 ALJ 614 would not fully apply to our case because of the words 'together with appeal or revision, if any' finding no place in Rule 5 of Rajasthan. As observed by Allahabad High Court in 1955 ALJ 614 already referred to above, it had been specially provided in Rule 5 of U. P. that the appellate court could order the abatement of the suit also even though it was no longer pending on that date before the trial court. But no such provision has been made in Rajasthan in Rule 5. Such an order therefore, cannot be passed by an appellate court here if the suit or proceeding (meaning thereby one started on an application) was not any longer found 'pending' before the trial court on, but had been decided before, the date of vesting. Sec. 5 (2) (1), Rajasthan Zamindari and Biswedari Abolition Act, 1959 is unambiguously clear in this respect when it says that all suits and proceedings 'pending* in any court 'at the date of vesting' and all proceedings consequent upon, that is arising as a consequence of, any decree or order passed in such suit or proceeding before such date, shall be 'stayed'. And so is Rule 5 of the Rajasthan Rules framed thereunder when it says that it would be the suit or proceedings whether pending in the court of first instance or appeal or revision stayed under sec. 5 (2) (1) of the Act that would be 'abated' by the authority or court before which it may be 'pending'. THE emphasis is upon what is found to be 'pending at the date of vesting' and that is alone what has been ordained to be first 'stayed' and then 'abated', unlike in U. P. , where along with 'appeal or revision' if any, the 'suit or proceeding' pending in any court whatever, of first instance, appeal or revision, has been also ordained to be so abated'.