GORDHAN Vs. HAMID KHAN

JUDGEMENT

(1.) THIS is a revision application under sec. 10 (2) of the Rajasthan (Protection of Tenants) Ordinance, 1949 against an order of the S. D. O. Gangapure, dated 12. 7. 54 granting protection to the opposite party under sec. 7 of the Ordinance.

(2.) WE have heard the learned counsel appearing for the parties and have examined the record as well. The main contention raised on behalf of the applicants is that the opposite party miserably failed to establish their tenancy over land in dispute and hence the lower court had to jurisdiction to order reinstatement in their favour. To appreciate this argument, we have to carefully examine the relevant facts of the case. In the Record of Rights of Svt. 1984 Settlement, Khasra No, 3383 measuring 9 bighas and 4 biswas was entered as follows; - "tunda etc. Mundarza Khata No. 346 Rahim Hamidkahn S/o Dalikhan, Kom Pathari, Sakin Deb Murtahin. " In the column of Shikmi Kashtkar, the entry 'khudkasht Murtihan' is to be found Tunda is the father of Bhola applicant and Hamidkhan is one of the. opposite party. In the Gasht Girdawari entries of Svt. 1997 in the column of Kashtkar, the name of Tunda etc mortgagors with Hussainkhan as mortgagee appears and in the column of Shikmi Kashtkar appears the name of Bhola Patel. It has been admitted by the opposite party that this Hussainkhan is not their ancestor and that they have absolutely on relationship with him. This entry is to be found in Svt. years 1999,2000 and 2001 - (Ex. D 1,d 3, D 5 and D. 6) with the exception that in Svt. 1999, the column of shikmi kashtkar is vacant. In Svt. 2002 khrsra No. 3383 of the previous settlement was divided into two distinct khasra numbers having separate numbers. One was 3258 measuring 7 bighas, 18 biswas, the other being 3257 measuring one bigha six biswas. Khasra No. 3258 has consistently been shown in the possession of the applicants. Parcha chakbandi has been issued by the Settlement Department in their favour. This khasra number is beyond the scope of this controversy as it is a common ground between the parties that the possession of it is with the applicants and the opposite party has never challenged the same. The bone of contention is khasra No. 3257. In Svt. 2002 as against this khasra number, Hamidkhan was entered for the first time as being in possession without any reference to the previous mortgage, mortgagors or mortgagees. This continued up to Svt. 2008 and probably in Svt. 2009 as well. In Svt. 2010 Hamidkhan and Rehmankhan applied for reinstatement alleging wrongful dispossession in November, 1953. The opposite party flatly denied all the allegations of the mortgage alleged by the applicants and naturally the alleged redemption as well. They refused to have any relationship with the mortgagees. Thus a very heavy burden rests upon them to show that in Svt. 2002 they came in possession as a tenant over the land in dispute Generally speaking, a tenancy arises either by a contract of the parties or by operation of law. The opposite party are not the legal representatives of the mortgagees or the mortgagors nor they have been able to show that any contract of tenancy was entered into with them by the Government or the Tehsil authorities or even the applicants in which case they would have been sub-tenants only. Obviously there could be no occasion for the Government to enter into any contract with the opposite party for the land was already in the khatedari of the applicants. The opposite party bases its case mainly upon the entries in the intkhab khasra bandobast Svt. 2008, khazra girdavri Svt. 2007 and purcha khatuuni issued by the Settlement Department on 24. 10. 53. The entries in the Record of Rights cannot be regarded as conclusive proof of the facts stated therein though a presumption of truth arises in their favour unless the contrary is proved. In the context of the circumstances, we are clearly of the opinion that the presumption in this case stands completely rebutted. As pointed out above no reason whatsoever has been suggested or proved for a sudden change in Svt-2002 for the appearance of Hamidkhan's name as against khasra No. 3257. It is still very surprising to note that this khasra number had never been under cultivation in Svt. 2002 as it appears to have remained submerged and hence the occasion for the change in the entry would become still remote. The previous number was entirely in the possession of Bhola and over a very considerable portion of it he is to be found in possession even upto this date. For a small portion of one bigha six biswas undergoing a radical change, there must be some explanation. None whatsoever has been offered in the case on behalf of the opposite party. It has been admitted by the opposite party that no rents were ever paid by them between Svt. years 2002 to 2009. This also supports the inference that the land was never the cultivation of the opposite party. The opposite party pointed out Svt. 2008 as being the year when the land was cultivated by him. This has been contradicted by the Village Patwari. All these factors clearly establish that the entries of Svt. 2002 and onwards are not in accordance with the facts. WE are, therefore, of the opinion that the opposite party failed to establish that they were the tenants of the land in dispute or that they were in possession within three months of the application for reinstatement. WE would, therefore, allow this revision, set aside the order of the lower court and direct that the application for reinstatement presented by the opposite party before the lower court shall stand rejected. .