MANGILAL Vs. NARAINLAL

JUDGEMENT

(1.) THIS is a second appeal preferred by the unsuccessful plaintiffs against the appellate judgment and decree of the Additional Commissioner, Kota dated 7th October, 1961, by which he has reversed the judgment and decree of the Sub-Divisional Officer, Hinduan dated 3rd July, 1961, in a suit for ejectment of the defendants/respondents Nos. 1 and 2 as trespassers. The learned counsel for the appellants and the defendant/respondent No. 3 are present. The learned counsel for the defendants/respondents Nos. 1 and 2 is, however, absent despite notice and, therefore, the appeal has been heard ex parte against them. Briefly stated the facts of the case are that the appellants claimed to have obtained the disputed land from respondent No. 3 Thikana Govind Deoji for a period of 100 years on payment of a sum of Rs. 1250/- through a Patta dated 24th January, 1958. The circumstances under which the Patta was obtained by them, as alleged in the plaint, were that the defendants/respondent Nos. 1, Shri Narain Lal, and one Shri Kishore made an un-authorised occupation of the disputed land and therefore the defendant/respondent No. 3 filed a suit against them which was decreed in favour of the Thikana. In the course of execution a compromise was arrived at between these parties and on 6th July, 1954 the possession was delivered to it. Thereafter the defendants/respondents No. 1 and 2 approached the Thikana Govind Deoji (respondent No. 3) to let them have the lease for a period of 100 years which was granted in their favour as referred to earlier. Even while this Patta was being granted the defendant/respondent No. 2 Sri Gangadhar was on the admission of the plaintiff/ appellants themselves in the cultivatory possession of the disputed land. It has been alleged by them that the defendant/respondent No. 1 Shri Narain Lal never took possession thereof nor cultivated it after having once surrendered it in favour of the defendant/respondent No. 3 Thikana Govind Deoji, but the defendant/respondent No. 2 Shri Gangadhar took possession of the land and started cultivating it at the instigation of the defendant/respondent No. 1. All these allegations in the plaint were denied by the defendant/respondents Nos. 1 and 2. It was alleged by them that they were the Khatedar tenants of the disputed land and had been paying rent to the defendant/respondent No. 3 before the resumption of Muafi and thereafter to the State Government and therefore,could not be ordered to be ejected as trespassers. It appears that no written statement was submitted on behalf of defendant/respnodent No. 3. The Patta dated 24th January, 1958 granted in favour of the defendants/ respondents Nos. 1 and 2 by the defendant/respondent No. 3 very clearly says that the disputed land bearing Khasra Nos. 2474 measuring 1 Bigha, 12 Biswas situated on the Karoli Station Road near the houses of Harijans in Kasha Hindaun was given over crykbz tkrh gs on payment of Rs. 1250/- by way of premium for a period of 100 years for the purposes of constructing houses thereon and was not at all let out for purposes agricultural or subservient thereto. The relevant portion of the Patta reads : ******** The learned trial court framed a number of issues and after recording the evidence decreed the suit in favour of the appellants. But as a very cursory reading of the judgment will go to show, it was so done on a mis-reading of the language of the Patta referred to above. The learned Sub-Divisional Officer read that the land had been let out for purposes "agricultural" when as would be evident from the relevant extract of the Patta re-produced above the disputed land had been given for the purposes of constructing houses and not for purposes agricultural or subservient thereto. The defendants/respondents Nos. 1 and 2 preferred an appeal against the decree of the learned trial court. It appears the main point taken before the learned Additional Commissioner, Kota, who heard the appeal on behalf of the defendants/ respondents Nos. 1 and 2 was that the Patta referred to above was a sale deed and not a lease. The learned Additional Commissioner came to a finding that it was a sale deed and not a lease. THIS was held by him on the ground that Hak Malkana had been transferred and the transferees had been given powers not only to construct houses thereon but also to sell, mortgage, exchange, etc. He further held that as the land had not been let out for purposes agricultural, the appellants could not be deemed to have acquired rights of a tenant thereon. He further held that on this ground they could not, therefore, have brought a suit for the ejectment as they had done. Further, it was held by the learned Additional Commissioner that Muafi grant having been resumed since, the appellants who came in the footsteps of the defendant/respondent No. 3, the original Muafidar, did no longer have a locus standi to pursue the present suit. In this second appeal it has been very vehemently urged on behalf of the appellants by Sri S. N. Pareek that the Patta dated 24th Jan. 1958 granted in their favour was not a sale-deed but was only a lease. On that basis he claims the status of a tenant in favour of the appellants and therefore entitled to bring a suit for ejectment. It has been, however, urged by him that as the learned Additional Commissioner has ordered the dismissal of the suit preferred by the appellants on this preliminary point alone, the appeal should be accepted and the case should be remanded to him for decision on merits on all the points decided by the learned trial court. The expression "tenant" has been defined by sec. 5 (43) of the Rajasthan Tenancy Act (hereinafter referred to as the Act ). It means "a person by whom the rent is, or, but for a contract, express or implied, would be payable". We, therefore, put a specific question to the learned counsel Sri Pareek as to what was the "rent" that was to be paid by the appellants to the Thikana Govind Deoji in terms of the Patta in their favour or what was the contract, expressed or implied, which exempted them from paying the same. He could not, however, point out anything in the Patta dated 24th January, 1958, which alone is the basis of his title over the disputed land to show that any rent was contemplated to be paid or there had been entered into any contract, express or implied, by which he was not required to pay the same. Besides, it is only the "land" as defined by sec. 5 (24) of the Act "let out or held for agricultural purposes or for purposes subservient thereto or as grove land or for pasturage including land occupied by houses or enclosures situated on a holding or land covered with water which may be used for the purpose of irrigation or growing Singhara or other similar Produce but excluding Abadi land" on which there can be a "tenant" in terms of the definition of this term referred to above. So apparently, the disputed land has not been let out to the appellants even if we accept, without granting the arguments on behalf of the appellants, that the Patta was a deed of lease and not of sale for any of the purposes referred to above but was let out only as for the purposes of constructing houses. As would be evident from the bare reading itself of the Patta, the lease was granted in consideration of the payment of premium of Rs. 1250/- and not in consideration of the payment of any other money share service or other thing which could be termed as "rent". THIS expression "rent" has been defined vide sec. 5 (32) of the Act to mean "whatever is in cash or in kind or partly in cash and partly in payable on account of the use of the occupation of land or on account of any right in land". The appellants could, therefore, be a "tenant" for the purposes of the Act only if they held the 'land" as defined by sec. 5 (24) referred to above and that on Payment of "rent" as defined in sec. 5 (32 ). The appellants could not, therefore be termed to be the "tenant" even if we accept the contention raised on their behalf by Sri Pareek that the defendant/ respondent No. 3 has granted a lease and not made a sale in their favour. Whether the Patta was a sale-deed or a lease, it does not seem to be necessary to decide for the purposes of the present case, as would be explained shortly. THIS is a suit for the ejectment of the defendants/respondents 1 and 2 as trespasser from the disputed land. The lis is to be covered by the provisions of sec. 183 of the Act as amended. Thereunder it is only the "person or persons entitled to admit" the trespasser as "tenant" that could bring the suit. When the appellants could not be found to be-tenant" as discussed earlier, they could not have any authority to bring the suit for the ejectment of the defendant/respondent Nos. 1 and 2 as trespassers obviously because they could not admit them as "tenant" which terms should be taken to include "sub-tenants" also. In case, however, the Patta dated 24th Jan. 1950 be taken to be a sale-deed, as has been held by the learned Additional Commissioner, the appellants could only walk into the foot steps of the defendant/respondent No. 3 Thikana Govind Deoji. The Muafi grant of the Thikana having been admittedly resumed, the Thikana itself could not have any locus standi to bring a suit of ejectment of any person as trespasser for the simple reason that it could no longer have the power of admitting the trespasser as "tenant". The appellants too for this very reason (step as they do in the place of the Thikana) have any authority or competence to bring a suit for the ejectment of the defendant/ respondents Nos. 1 and 2 as trespassers. Thus it may be from whatever angle that we may examine the case, the appellants could not be found to be competent and entitled to bring the present suit. We have put this case pointedly to the learned counsel for the appellants, and Sri Pareek has tried his best to meet this point as discussed earlier. He has not been,however able to over-come the difficulty of the title of the appellants to bring the suit for ejectment under S. 183 of the Act as discussed already. It is only a person or persons entitled to admit the trespasser or trespassers as tenant that could be entitled to bring a suit for ejectment under sec. 183 of the Act and none else. The suit, therefore, deserves to be rejected as being not maintainable under the Act as has been held by the learned Additional Commissioner sitting m the first appeal also. There is thus no force in this appeal, which is hereby rejected. .