NASIRKHAN Vs. BALU

JUDGEMENT

(1.) THIS is an application under sec. 10 (2) of the Rajasthan (Protection of Tenants) Ordinance, No. IX of 1949, against an order of the S. D. O. Tonk dated 7.9.1951 by which he accepted the application presented by Balu under sec. 7 of the Ordinance and ordered his reinstatement upon Miasm Nos. 339, 345, 349, 350 and 341, 43 bighas in Kachhelia. The contention of the petitioner is that the applicant Balu had taken a pail?, for one year on 15.12.1949 and on the expiry of this period had relinquished the land voluntarily. He applied on 17.7.1950 for reinstatement but the same was dismissed in default on 30.7.1951. He presented this second application without applying for restoration of the first application which he was not entitled to do. Since he had given up possession in December 1950 the application was made more than 3 months after dispossession and was, therefore, time -barred.

(2.) I have heard the counsel for the parties and gone through the record. The possession of the applicant Balu upon the land in dispute in Smt. 2004, 2005 and 2006 is admitted by both the parties. The record also shows that the petitioner had given a patta to Balu on 3.7.1949 for one year and he gave another patta for the same land in December 1949. The reason for giving a second patta before the expiry of the period of the first patta is not clear. It may be that this was done so that the period of the patta may expire in December soon after the harvesting of the kharif crop, and more than 3 months before the time for sowing the second kharif crop arrived so that the petitioner could take the plea that the applicant had given up possession in the month of December and his application which might be presented under the Ordinance for preventing him from cultivating the land in kharif season in June or July might become time barred. December is not the time when land is surrendered or let out. Fasli year starts in the month of Jeth and the man who cultivated the land in the previous kharif season would be deemed to be in possession of the land till the expiry of the Fadi year. Therefore, applicant, Balu, would be considered to be in possession of the land till the month of Jeth. His application for reinstatement was, therefore, not time barred.

(3.) UNDER the Ordinance there is no bar for filing a second application if the previous one had been dismissed in default. There is no provision for either dismissal of such application in default or for restoration. It is open to the applicant to file a second application if the first one had not been enquired into and disposed of on merits.