BHALLA Vs. GULAB KANWAR

JUDGEMENT

(1.) THIS is a reference to the Full Bench of the Board of Revenue under Sec. 11 of the Rajasthan Land Revenue Act, 1956. The terms of the reference are the following: - (1) Whether a tenant after the expiry of the period of lease is a trespasser or a tenant holding over? (2) Whether the Full Bench judgment of the Board of Revenue reported in 1961 R. R. D. 109 loses its significance after the amendment of Sec. 180 (1) (b) of the Rajasthan Tenancy Act, 1955 as a result of Rajasthan Act No. 5 of 1962, published on 21-4-1962?

(2.) BRIEFLY, the matter in dispute is that Mst. Gulab Kanwar respondent (plaintiff) filed a suit under Sec. 183 of the Rajasthan Tenancy Act, 1955 against the appellants (defendants) claiming that she had l/5th share in the disputed agricultural holding which she had let out to the defendants for a period of one year but the letter have refused to vacate the agricultural holding after the expiry of the lease. She claimed that the defendants had become trespassers after the expiry of the lease and they should be ejected u/s. 183 of the Rajasthan Tenancy Act, 1955. The disputed agricultural holding is undivided and the appellants (defendants) appear to hold 4/5th share of this holding from other co-sharers. The l/5th share belonging to the plaintiff is indeterminate for the holding is still joint and has not been partitioned. The second appeal No. 152 of 1968 was heard by a division Bench consisting of Sarvashri D. G. Joseph and K. S. Ujwal, Members. There was difference of opinion between the two learned Members. Shri D. C. Joseph held that the Full Bench decision of the Board of Revenue reported in 1961 R. R. D 109 lost all significance after the amendment of sec. 180 (l) (b) of the Rajasthan Tenancy Act as a result of Rajasthan Act No 5 of 1962 published on 21. 4. 1962 while Shri K. S. Ujwal held that the Full Bench decision of the Board continued to be in full-force even after the amendment of Sec. 180 (1) (b) of the Rajasthan Tenancy Act. The conclusions of the Full Bench decision of the Board have been affirmed by the Hon'ble Rajasthan High Court in its judgment dated 13-8-1966 published in 1968 R. R D. 11. In accordance with Sec. 13 of the Rajasthan Land Revenue Act, 1956 this difference of opinion case was referred to the 3rd Member of the Board who by his order dated 19. 12. 1973 did not think it proper to decide the matter and requested the Chairmain to refer the points formulated by him for reference to the full bench of the Board consisting of atleast 5 Members because the previous decision of the Full Bench of the Board reported in 1961 R. R. D. 109 had to be considered along with the judgment of the Rajasthan High Court reported in 1968 R. R. D. 11.

(3.) FOR the foregoing reasons, we are unable to agree with the able arguments of sarvashri S. N. Pareek and Vedvrat, Advocates that a tenant or sub-tenant holding over after the expiry of the lease become trespasser and is liable to ejectment under Sec 183 of the Rajasthan Tenancy Act. We have held above following 1961 R. R. D. 109 and 1968 R. R. D. 11 that a tenant or sub-tenant holding over is not a trespasser and he has to be ejected from the tenancy in accordance with the provisions of the Rajasthan Tenancy Act under Sec. 180 and not under Sec. 183 of the same Act. We agree with the reasoning advanced by Shri Roop Chand Sogani in this res-pect who has appeared as amicus curiae before us in the present case.