CHEETER Vs. APHIA

JUDGEMENT

(1.) THE facts giving rise to the filing of this revision petition by numerous petitioners are that the petitioners are admittedly sub-tenants of the respondents Mst. Aphia and Mst. Saphia. On their claiming that they have acquired khatedari rights in pursuance of Sec. 19 of the Rajasthan Tenancy Act mutations were being ordered by the Tehsildar, Tonk, by transferring the khatedari rights to the petitioners. THE respondents filed an objection petition that by virtue of sec. 46 of the Rajasthan Tenancy Act, no khatedari rights could be acquired against them. THE Tehsildar summarily rejected the application on 14. 4. 60 against which an appeal was preferred before the Collector, Tonk who by order dated 24. 6. 60 accepted the appeal of the respondents, quashed the order of the Tehsildar and issued directions that after making enquiries under the provisions of sec. 46 of the Rajasthan Tenancy Act, relating to the rights of the respondents the Tehsildar should pass fresh orders. Accordingly the Tehsildar on remand tried the case and came to the conclusion that the two lady respondents were separated women from their husbands and were incapable of cultivating the land personally, rejected the mutation proceedings made in favour of the petitioner. Aggrieved by this order the present petitioner Chheetar, Kishna, Ramnath and 11 others filed an appeal before the Collector Tonk who by the impugned order rejected their appeal, hence this revision.

(2.) THE counsel for the petitioner raised many contentions against the impugned order. His first contention was that the two respondents cannot be considered as separated wives from their husbands. This has neither been proved nor it has been established before the subordinate Courts that the two women respondents were judicially separated from their husbands. Before a woman can claim, that the law does not impose any restriction on sub-letting within sec. 46 of the Rajasthan Tenancy Act she has to establish that she was separated from her husband in a judicial manner. No enquiry by the lower Court seems to have been done, that those two ladies were judicially separated within the meaning of the Muslim Law. Secondly, there is no thing on record to show that these two women were suffering from physical disability or infirmity and were persons incapable of cultivating the holding as a reason thereof within the meaning of the aforesaid section. This physical disability as laid down in R. R. D. 1942 p. 427 must exist at the time of the sub-letting and not at a later date. THE provisions in the U. P. Tenancy Act are similar to those of the Rajasthan Tenancy Act as contained in sec. 45 and 46.