RAM KUMAR Vs. DHANAJAYALAL

JUDGEMENT

(1.) THE facts giving rise to the second appeal are that the respondents who are minors had sued the present appellants for possession of land bearing khasra Nos. 259, 261,262,263,281,282 and 283 in village Sherpur. It was averred in the plaint that they had cultivated the said land which was their khudkasht in Smt. year 2010 and let it to Ram Kumar and Ram Kishore, appellants Nos. 1 and 2 in 1955. It was further stated that the same land was let out to Punia appellant No. 3 in 1958 for Smt. year 2015 only. THE plaint went on to say that Punia had cultivated the land in Smt. year 2015 through Ram Kumar and Ram Kishore appellant No. 1 and 2 and all three of them had refused to vacate the land in Smt. year 2016 and had not paid the rent either. THE three appellants submitted a joint written statement wherein it was stated that appellant Nos. 1 and 2 had been in cultivating possession as khate-dar tenants for the last 10 to 12 years and that appellant No. 3 was their partner. THEy denied liability to ejectment. THE respondents produced oral as well as documentary evidence whereas the appellants produced only oral evidence. THE appellant No. 3 did not appear in the witness box at all. THE learned trial court held that the suit land was not the khudkasht land of the respondents and that the appellants had been cultivating as khatedar tenants for the last 10 to 12 years. As such the respondent's suit was dismissed. In first appeal the learned Revenue Appellate Authority, Kota, held that the suit land was khudkasht of the present respondents, and that the appellants as tenants of khudkasht land were liable to be ejected and to yield possession to the respondents. THE appeal was thus accepted and suit decreed in favour of the respondents. Here before us, the learned counsel for the appellant has raised two contentions. One is that the suit land was not khudkasht land and, secondly, that no application had been submitted by the respondents for the ejectment of the appellants under sec. 180 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act ). THE learned counsel for the respondents has countered these arguments. He says that the suit land is recorded in the settlement of Smt. 2009 as khudkasht land, and, that even though it may be assumed that it was not actually cultivated personally by the respondents it must be treated as khudkasht land by virtue of the definition of that term given in sec. 5 (23) of the Act. He argues that even on facts the land was cultivated by the respondents in Smt. 2010 and let thereafter to various parties at different times. He further says that since the land was let by minors no khatedari rights could be acquired in it by any other party by virtue of the provisions of sec. 19 read with sec. 46 of the Act. He concludes that the respondents had sought the relief of possession and this relief is available to the respondent under sec. 180 of the Act even though this section was not cited in the plaint nor an application made under this provision or under sec. 209 of the Act.

(2.) WE are of the view that there is no force in the arguments made on behalf of the appellants, and that these have been successfully repelled by the arguments on behalf of the respondents. There, is no doubt that the land in dispute is khudkasht land of the respondents. Sec. 5 (23) of the Act defines khudkasht land as land cultivated personally by an estate-holder and says that it shall include land recorded as khudkasht, sir, havala, etc. in settlement records at the commencement of the Act. Ex. P. 1 is the parcha khatauni of the settlement current from Smt. 2009. It shows the respondents to be the khatedars. The parcha khatedari does not mention any other party as tenant and as such it is clear evidence that the land was khudkasht of the respondents. Ex. P. 5 which is khasra girdawari of Smt. 2013 to 2016 carries a note that the settlement department had directed that the land should be entered as khudkasht of the respondents. This change was brought about on a declaratory suit filed by respondents against one Allahrakha who had got himself recorded as khatedar tenant of the suit land. In that suit Allahrakha conceded that the land was the khudkasht of the respondents and that the crop standing on it in Smt. 2010 was that of the respondents. Ex. P. 4 and 5 show that Ram Kumar and Ram Kishore, appellants No. 1 and 2, were admitted by kabuliatnamas dated 3. 7. 55 and that Punia was admitted as tenant on 24. 7. 58. This documentary evidence conclusively shows that the appellants are tenants of khudkasht land and not khatedar tenants. Under sec. 180 (1) (b) of the Act tenants of khudkasht lands are liable to ejectment without assigning any reason on the expiry of the lease if it is from year to year. The procedure laid down is that the khudkasht holder should make an application in this behalf. On receipt of the application notice is required to be served on the tenants under sec. 181 and if they deny liability to ejectment the application is to be treated as suit as provided under sec. 182 (3 ). In the present case no application for ejectment was made but instead the respondents brought a suit straightaway. WE are of the view that if the holder of a khudkasht land prefers to bring a suit straight away instead of preferring an application the proceedings cannot be held to be invalid. The procedure of making an application merely provides a convenient mode for seeking relief by the land-holder and in no way derogates from his right to bring a suit straight away. This is clear from the provision of sec. 182 (3) which says that if the tenant denies the liability to ejectment the application has to be proceeded with as a suit. Finally, no application was made by the respondents under sec. 209 of the Act for getting relief under sec. 180 thereof. WE do not think this was at all necessary. They stated all the facts on the basis of which the relief of possession could be given in terms of sec. 180 of the Act that is to say they stated that they were holders of khudkasht land, that they had let it last to appellant No. 3 for one year (Smt. 2015) and that they wanted the land back. They need not have quoted the provision of law under which this relief could be given and it was for the court to decide under what provision of the law the relief sought could be given. The learned Revenue Appellate Authority held the facts alleged in the plaint to be proved and granted the relief that had been sought. Such relief was admissible under sec. 180 of the Act and in our view it was correctly granted.