NATHU Vs. SEWA

JUDGEMENT

(1.) This is a revision preferred against the appellate order of the Collector, Jhalawar, dated 23rd January, 1962. Brief facts of the case are that the applicant Sri Nathu made an application for the Khatedari right under section 19 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act). This was allowed by the Tehsildar, Gangadhar, vide his order dated 5th October, 1961. The appeal was preferred to the Collector, Jhalawar. The learned Collector came to the conclusion that the Tehsildar had not jurisdiction to try the case. He, however, refused to remand the case with this observation nor did he return the appeal to the appellant to be presented to the proper court. On the other hand, he accepted the appeal setting aside the order of the Tehsildar and directed that the entry shall continue to remain as usual in favour of the respondent Sri Sewa. It would be advisable to reproduce the observation of the learned Collector ad verbatim :

(2.) Obviously, there has been a misconception of the provisions of section 19 of the Act by the learned Collector. This section has been amended by section 2 of the Rajasthan Tenancy (Amendment) Act No. 7 of 1959 enforced with effect from 5th April, 1959 as well as by section 3 of the Rajasthan Tenancy (Amendment) Act No. 12 of 1961 which came in force from 4th April, 1961. It lays down that every person, who, at the commencement of this Act (i.e. 15.10.1955) (a) was entered in the Annual Registers then current as a sub -tenant of land or (b) was not so entered but was a sub -tenant (other portions being not relevant to the case have not been reproduced here) shall as from the dates of the commencement of these Amendment Acts, referred to as the "appointed date", become subject to other provisions contained in the Chapter in which this section falls, the Khatedar tenant of such part of the land held by him as does not exceed the limits laid down therein or exceeds the limits from which such person is liable to ejectment as laid down therein, subject further of course to the provisions made in the proviso thereto. This means only that the Khatedari rights so accrued to such a person from the "appointed date" and not that they depended on any entry on the "appointed date". The entry in Annual Registers as sub -tenant was required to exist on October 15, 1955, the date on which the Act came in force and not on the "appointed date" In the absence of such an entry in Annual Registers on 15.10.1955 also the proof of the existence of sub -tenancy on this date (15.10.1955) alone was needed, and not the proof of any such entry on the "appointed date". There was no necessity, as such, as pointed out by the learned Collector, that the applicant should have been continued to be entered as subtenant throughout and must have been entered as such on the "appointed date" which he has taken in the present case to be 5th April, 1959. The appointed date" has been fixed only to be taken as a crucial date from which a person entered as sub -tenant on 15th October, 1955, shall be deemed to have acquired Khatedari rights subject to other provisions laid down in this behalf. This separate date was necessary to be "appointed" as because of the provisions of section 15 of the Act which do not recognise the sub -tenant to have acquired the Khatedari rights from 15.10.1955, the date of the commencement of the Act itself. It is thus on a misconception that the learned Collector has been pleased to hold that the Tehsildar: had got no jurisdiction to try this application. The entry of the applicant as sub -tenant on 15th October, 1955 over the disputed land in the Annual Registers is not being contended nor denied, rather, it has been established, in this case. The learned Tehsildar had, therefore, the authority and jurisdiction to entertain this application and decide it. It was not necessary for vesting jurisdiction in him that there should have been an entry in the Annual Registers in favour of the applicant as a sub -tenant even on the appointed date".

(3.) As the learned Collector has set aside the order passed by the Tehsildar in favour of the applicant declaring him to have acquired Khatedari rights from 5.4.1959 on the disputed land on the basis of the entry in the Annual Registers only on the ground that the applicant was not entered as such also on 5.4.1059 the order deserves to be set aside. The learned Tehsildar had rightly held that the applicant had acquired Khatedari rights on the sole basis of the entry as sub -tenant subsisting in favour of the applicant on 15.10.1955, the date of the commencement of the Act. That order, therefore, deserves to be restored.