KISHANLAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE circumstances leading to this revision are that the appellant claimed himself to be the 'mustkil Shikmi' of disputed land, being in cultivatory possession thereof for a number of years. He, therefore, applied for being recorded as Khatedar under the provisions of sec. 16 (1) of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act ). THE learned Sub Divisional Officer, Bundi, held that 'mustkil Shikmi' was not a tenant who could be recognised as a Khatedar with the enforcement of the Act u/s 15 (1 ). He directed the applicant to proceed for a declaration u/s 15 (2), if he so wished. In appeal the learned Commissioner observed that 'mustkil Shikmi' was a tenure envisaged under the statutory or non-statutory rules of the former Bundi State; and that sec. 16 (2) was the only section dealing with such special tenancies. He, too, therefore held that the applicant should proceed u/s 15 (3) if he so desired.

(2.) NOW, sec. 15 (1) of the Act confers Khatedari rights on every tenant other than a tenant of Khudkasht or a sub-tenant at the commencement of this Act. A tenant is defined by sec. 5 (43) of the Act as a person by whom rent is paid or is payable. It is not in dispute in this case that the applicant has been paying rent to the State. There cannot therefore, be any room for doubt about the status of the applicant as a tenant. A tenant of "khudkasht" can, vide sec. 16 (1) of the Act, be only a person to whom at the commencement of this Act or at any time thereafter "khudkasht" as defined by sec. 9 of the Act has been or is let out lawfully by any estate holder. Vide sec. 5 (41) of the Act a sub-tenant is a person who holds land from the tenant thereof. Admittedly, the applicant has been holding directly from the State. He is, therefore, neither a tenant of "khudkasht" nor a sub-tenant. His status is, therefore, clearly that of a "tenant". This conclusion is reinforced by the provisions of the Bundi State Tenancy Act, 1942 (hereinafter referred to as the Bundi Act) which was in force immediately before the commencement of the Act. Sec. 16 (a) thereof lays down that (i) Khatedar, (ii) Shikmis, and (iii) Hawala Jotas shall be the classes of tenants. Vide Sub-section (e) thereof "shikmi" has been defined to be a person cultivating the land on which he has not acquired the rights of a Khatedar in the manner described in sub-sec. (b ). A sub tenant has been defined by sec. 46 thereof as a person holding land from a tenant, a tenant's mortgagee, or from the holder of the village Service Holding. Even under the provisions of the Bundi Act, therefore, the applicant is a "tenant" and not a sub tenant. The term ''mustkil Shikmi' has neither been defined nor has been used in the Bundi Act even though as discussed above, the class 'shikmi' finds mention there. The word 'mustkil Shikmi' can however well be taken in its literal meaning to be a qualifying expression of this class 'shikmi'. 'mustkil Shikmi' literally means a permanent Shikmi. This class can, therefore, be taken to have at any rate those rights which are laid down for Shikmis u/s 34,35,36,37, 38,39, 40, 41 and 42 of the Bundi Act, that is to say, limited transferable and heritable rights if not better.