TEKA Vs. DULHE SINGH

JUDGEMENT

(1.) Briefly, the facts of the case are that the defendant respondent claiming himself to be the then Jagirdar of the land known as Dangron -ki -talai in village Rama, Tehsil, Girwa, District Udaipur filed a suit for possession under the Specific Relief Act and obtained decree in his favour. In order to prevent the execution of the decree of the Civil Court against them the plaintiff appellants filed the present suit before the Assistant Collector, Udaipur for declaration of their Khatedari rights over the land in dispute in respect of which a decree for possession has been passed by the Civil Court under sec. 88 of the Rajasthan Tenancy Act. This suit was no bar to the decree already passed under a summary procedure by Civil Court under the Specific Relief Act. The trial court decreed the appellants suit on the basis of the oral evidence that the plaintiffs appellants were in possession of the land in dispute. In appeal by the defendant respondent before the first appellate Court the decree of the trial Court was reversed and the suit of the plaintiff appellant was dismissed on the ground that the defendant respondent was the land holder of the suit land at the time when the decree from the Civil Court for possession was obtained. The land in dispute was given to the plaintiff appellants for cultivation on the execution of their agreement deed by the plaintiff appellants. They could not have acquired Khatedari rights without payment of compensation. Further the first appellate Court held that the plaintiff appellants brought the suit against the defendant for declaration of the Khatedari rights without admitting the defendant respondent as their land holder or landlord; but in view of the fact that the Divisio -nal Commissioner in his judgment dated the 8th August, 1958 had held that the plaintiff appellant have indirectly admitted the defendant respondents as the land holders by the plaintiff appellants, it was unnecessary for us to pursue the matter further. It was sufficient therefore that for purpose of this case the defendant respondent stood in the capacity of a land holder. If this possession was not taken, the question of the plaintiff appellants impleading the defendant respondent and seeking a declaration of their tenancy right would be of no avail. In view of the fact that at the time of the record and settlement operations dispute had arisen between the parties about the nature of the tenancy right, the subsequent issue of Parcha in favour of the respondent appellant was of no importance. It was only contended by the counsel for the appellant that when the appellate Court admits the possession of the appellant at the time of the suit sec. 16 -A of the Rajasthan Tenancy Act does not come in the way of rejection of the appellants suit. On the contrary sec. 15 of the Rajasthan Tenancy Act gives the appellant the Khatedari rights over the suit land and the question of payment of compensation really does not arise. The counsel for the respondents only reply was that the appellants were not his tenants, but cultivated the suit land as partners under a deed of agreement.

(2.) We have considered the arguments advanced from both sides and perused the record. This is the suit of the plaintiff appellant for declaration of their Khatedari rights against the defendant respondent whom they refused to admit as a land holder. In the absence of this admission by the plaintiff appellant, who filed the suit, the trial Court should have either got the pleadings cleared and prevailed upon the plaintiff appellant to acknowledge the plaintiff appellant as the land holder before proceeding with the suit. If the plaintiff appellant refused to recognise the defendant respondent as the land -holder the suit should have been dismissed forthwith. It was only at the late stage that the Commissioner in his judgment referred to above, allowed the suit to drag on merely on the ground that the plaintiff appellants have indirectly admitted the defendant respondent as the land holder. This declaratory suit does not fall under sec. 88 of the Rajasthan Tenancy Act, but it really falls under sec. 90 of the Tenancy Act which reads as follows : - -

(3.) The meaning of this section is clear that before a suit for status of a tenant could be filed he must name the land -holder against whom he claims the status or his right. Unless the land -holder is named the suit cannot proceed. Similarly, a land holder in filing a suit must specify the tenants and admit that they are tenants or a person in any other capacity before the status of the tenant could be declared. Presuming, therefore, that the defendant respondent was a tenant and the tenant admittedly held the land under an agreement in writing and they were under orders of eviction by a decree passed by the Munsiff Court in 1954 they could not have acquired Khatedari rights under sec. 15 of the Rajasthan Tenancy Act as they were not the tenants of the land. They were either sub -tenants or tenant of the Khud -kasht of the defendant respondent. Sec. 15 of the Rajasthan Tenancy Act, therefore, clearly does not apply to this case. They could have acquired the right of Khatedari at the most under sec. 19 of the Rajasthan Tenancy Act provided they were not under orders of ejectment by a decree of a Court and provided further that all the conditions laid down in sec. 19 were fully satisfied. No such enquiry seems to have been done in this case. It is not known whether the plaintiff appellant have filed separate applications under sec. 19 of the Rajasthan Tenancy Act for acquisition of Khatedari rights under sec. 19 sub -sec. 2 before the Assistant Collector as they were admittedly not entered as tenant of Khudkasht or sub -tenant of land at the commencement of the Rajasthan Tenancy Act in the Annual Registers then current. As far as this case is concerned it seems strange how the trial Court decreed the plaintiffs suit by completely ignoring the evidence on record. The first appellate Court no doubt rejected the suit of the plaintiff appellant, but entirely on different grounds. We, however, concur with the finding of the first appellate court though on different grounds and reject the appellants appeal and confirm the decision dismissing the appellants suit.