KHIWA Vs. BHURARAM

JUDGEMENT

(1.) This is a second appeal against the concurrent judgment and decree passed by the Addl. Commissioner, Jaipur and the Asstt. Collector, Nim -ka - thana. The respondent had filed a suit in the court of the Asstt. Collector, Nim -ka -thana alleging that he was in cultiva -tory possession of fields Nos. 2119 -2122, but unfortunately a dispute in respect of this land arose between him and the appellant. A compromise was, however, struck that this land be cultivated in partner -ship by both the parties; they will divide the produce half and half, incur the expenditure in equal proportion and will pay Govt. dues also in the same manner. According to the plaint, the appellant thus became the temporary partner of the respondent. Ex. P. 1 was the document which was recorded to witness this contract. In Svt. 2909 to 2012 the appellant did not pay anything to the respondent though he was entitled to receive Rs. 246/8/ - as half share of the produce which was raised on the land in dispute. The respondent also alleged that he had paid a sum of Rs. 31/3/ - towards the land revenue and he was, therefore entitled to get Rs. 15/10/ -from the appellant. He therefore, prayed for a decree for the recovery of Rs. 262/8/ - from the appellant. The suit was resisted by the appellant on the ground that he never executed any agreement. Though he was partner in cultivation of Khasra No. 2099, the produce of which he had been sharing, he was never a partner in cultivation in Khasra No, 2122. The respondent was not competent to get Rs. 15/10/ -, as the receipts which he had obtained were due to the fact that he was partner in cultivation in Khasra No. 2119. The suit was decreed for Rs. 115/10/ -by the trial court after framing the issue and recording necessary evidence. An appeal was filed against this order but was rejected by the Addl. Commissioner and hence this second appeal.

(2.) We have heard the counsel of the parties and have also gone through the record. The main argument of the counsel for the appellant was that both the courts below had misunderstood, or had not correctly appreciated the nature of the case. It was a case based on partner -ship, pure and simple, and the provision of Rajasthan Tenancy Act had no application. The learned counsel for the respondent argued that his case was based on sec.150 & 155 of the Raj. Tenancy Act. Sec. 150 relates to a suit for arrears of produce rent. Such a suit can be filed by a land -holder for the recovery of arrears of rent when the rent is based on an estimate or appraisal of the crop, or which is payable by division of the produce, and is in the arrears. The first pre -requisite to bring a suit under the provisions of this section is that the relationship between the parties must be that of a land -holder or a tenant, or of a tenant and a subtenant. The respondent never alleged that he was the land -holder. It is also not his case that he is the tenant and the appellant is his -sub -tenant. Similarly, under sec. 155 of the Rajasthan Tenancy Act a co -tenant who has paid rent on account of another co -tenant or from whom such rent has been recovered can sue the other co -tenant for the amount so paid. The main question, therefore, for determination in this case would be the status of the appellant vis -avis the respondent. As we have stated above, the respondent does not allege that he was a land -holder, he also does not allege that he was a tenant and that the appellant was his subtenant. The averment: in the plaint is that the tenant of this land is Rao Bakhsu Singh under whom the respondent! cultivated it. Even according to the statement of the respondent himself he has no status better than that of a sub -tenant. The question for determination further narrows itself to whether the respondent could create a further sub -tenancy or a co -tenancy.

(3.) Before examining the legal aspect of this question, we may first refer to the document Ex.P.1 which according to the respondent determines the status inter se of the parties. We may observe that this document has not been admitted by the appellant to have been executed by him. The learned trial court held that this document was inadmissible in evidence though it could be looked into "merely as a collateral document". The learned trial court also referred to a number of points, which cast doubt on its execution but which we will ignore for the present. The learned Additional Commissioner held that the trial court was not right in declaring the document inadmissible as it did not purport to transfer any interest. We would resist from pronouncing any opinion on this interesting point, as we think that because of the view we are taking in this case, this question should better be left open. We may, however, observe that it is not understood what the trial court meant by looking into this document for a collateral purpose. The collateral purpose of a mortgage deed or some other document which is inadmissible in evidence would be to determine the nature of the posses -s on. In this case there is no dispute as to the nature of possession. The dispute is with regard to the right which this document created. This obviously is not a collateral purpose. There is, however, no doubt, and as the learned trial court has taken pains to show, that this document does not in any way create a tenancy. The status which it bestowed on the appellant is only that of a shariki -kasht and shariki kasht as held in 1956 RRD.299 is not a tenant.