RAMBHOOL SINGH Vs. STATE

JUDGEMENT

(1.) THIS is a Writ Petition under Art. 226 of the Constitution praying that the order of the Board of Revenue dated the 27th of August, 1959 be quashed. THIS order of the Board of Revenue was passed under the following circumstances.

(2.) THE petitioner Rambhool Singh was the Biswedar of a piece of land Khasra No. 390 measuring 3 Bighas 15 Biswas in village Shahjahanpur (Tehsil Behror, Distt. Alwar ). He was in military service from which he was discharged in the year 1951. THE aforesaid land was given by the petitioner on lease to Ghisa Respondent No. 3 for one year and after the expiry of the period of lease he obtained possession of the land. THE case of Ghisa Respondent No. 3 throughout has been that he was illegally dispossessed from that land, while the case of the petitioner is that Ghisa surrendered the possession of the land on the expiry of the lease on 27th July 1952. On 28th of July 1952 Ghisa made an application under Sec. 7 of the Rajasthan Protection of Tenants Ordinance, 1949 (No. IX of 1949) hereinafter referred to as the Ordinance, in the court of the Sub-Divisional Officer, Behror for his reinstatement. This, application was dismissed by the Sub Divisional Officer but the Board of Revenue reversed the decision of the Sub Divisional Officer acting in its revisional jurisdiction on the ground that the petitioner after obtaining the discharge from the military had taken possession of his land by ejecting another tenant from the land and had granted the lease to Ghisa instead of cultivating it himself and the petitioner could not claim exemption from the operation of the Ordinance. THE case was remanded by the Revenue Board to the Sub Divisional Officer for trying the issue of forcible ejectment. THE Sub Divisional Officer on remand ordered reinstatement of Ghisa. THE petitioner filed a revision application before the Board of Revenue and the Board of Revenue dismissed it. He filed a Writ Petition under* Art 226 on the ground that under Notification No. 1 (4) Rev. 1 (51) Jaipur dated the nth of January 1951 published in the Rajasthan Gazette No. no dated the 20th January 1951, tenants of the land belonging to persons who were discharged from the military after the coming into force of the Rajasthan Ordinance were exempted from the operation of the Ordinance. This contention of the petitioner was accepted by the court in that Writ Petition. THE judgment of this Court is Rambul Singh Vs. THE Board of Revenue and others (1 ). After the judgment of this court quashing the order of the Board of Revenue for reinstatement Ghisa filed a suit for the possession in the court of the Assistant Collector, Behror, and this suit was decreed by that court on the 10th of October, 1957. THE petitioner filed an appeal before the Additional Commissioner, Ajmer, which was accepted on the 12th of August, 1958. Ghisa then went in second appeal before the Board of Revenue, Ajmer. THE Board of Revenue reversed the decree of the first appellate court and restored the decree of the trial court by its judgment dated the 27th of August 1959. In this petition it is urged that the judgment of the Board of Revenue is erroneous on the face of it and should be set aside by a writ of certiorari. Before we examine this contention raised on behalf of the petitioner, we may point out that after the application under Sec. 7 of the Ordinance was allowed by the Sub Divisional Officer, Ghisa was put in possession over the disputed land on the 26th of June 1955 but the petitioner was restored possession on the 7th of August 1959 after this Court had set aside the judgment of the Board of Revenue, on the 12th of July 1956. During this period the Rajasthan Tenancy Act hereinafter referred to as the Act had come into force on the 15th of October 1955. Under sec. 15 of the said Act, subject to certain exceptions, every person who at the commencement of that Act was a tenant of the land otherwise than as a sub-tenant or a tenant of Khudkasht, was declared to be a Khatedar tenant in respect of that land. THE view taken by the Board of Revenue is that as Ghisa was in possession of the disputed land on the 15th of October, 1955 he acquired Khatedari rights in that land by the operation of sec. 15 of the Act. Taking this view of the matter, the Board of Revenue has held that Ghisa was not liable to be dispossessed from the land in dispute and was also entitled to recover possession of the land from the petitioner. In passing, the Board of Revenue has also observed that: - ". . . . . . even if this fact is ignored, it would be apparent that he (Ghisa) was entitled to continue in possession unless ejected in accordance with the provisions of the law" and that: - "a tenant who is wrongfully dispossessed would be deemed to be constructively in possession as against the trespasser. " It may also be mentioned that the trial court and the Board of Revenue both rejected the case set up by the petitioner that he had obtained the possession of the land on surrender by the tenant.