NARAYAN Vs. KALU

JUDGEMENT

(1.) THIS is a revision application under sec. 26 of the Rajasthan Revenue Courts Procedure and Jurisdiction Act against an appellate order of the Settlement Commissioner, Rajasthan, dated 2.3.54 in a case relating to entries in parcha chakbandi.

(2.) WE have heard the learned counsel for the parties and have also gone through the record as well. There has been a material irregularity in the disposal of the second appeal by the learned Additional Settlement Commissioner and hence the case has to be remanded back to him for re -hearing of the second appeal filed before me. The learned Additional Settlements Commissioner has omitted to examine the evidence documentary and oral led by the applicant in the trial court and has simply based his judgment on two orders - -one of the Anti -Ejectment Officer and the other of the Sub Divisional Magistrate. As laid down in sec. 8 of the Jaipur Tenancy Act, 1945, a khatedar tenant is entitled to receive a formal parcha at the time of settlement or a revision thereof under the seal and signature of the Settlement Officer or Assistant Settlement Officer and during currency of the settlement under the seal and signature of the Nazim. The opposite party was, therefore, bound to show that was a tenant and a khatedar tenant of the land in dispute. Disputes under sec. 59 of the Jaipur State Grant Land Tenures Act are to be decided on the basis of possession. The term possession obviously means juridical and not possession of a wrong door or a rank trespasser. Possession has to be legal and lawful and should be based on some sort of title although title may not be good or perfect. In other words, it must be based on prima facie title. As observed in 8 Alld. Revenue Decisions, 426 "it is obvious that any person who has no right or claim to it forcibly seizes the property should not be recorded in it and the mere fact that an order has been passed in his favour under sec. 145 of the Criminal Procedure Code will not entitle a person to get his name recorded." The nature of the possession has, therefore, to be examined. The learned Additional Commissioner has not only omitted to examine the evidence on the factom of possession but also has expressed no opinion as to its nature. We would, therefore, allow this revision, set aside the order of the lower appellate court and remand the case back to it with the direction that the appeal presented before it be reheard and disposed of afresh in the light of the above observations.