NARAIN Vs. MOTI

JUDGEMENT

(1.) THIS is a revision under sec. 10 (2) of the Rajasthan (Protection of Tenants) Ordinance, against an order of the S.D.O. Bundi, dated 26-1-1955 refusing protection to the applicant under sec. 7 of the Ordinance.

(2.) WE have heard the learned counsel appearing for the parties and have gone through the record as well. The applicant claimed reinstatement over the land in dispute with the allegations that he had been cultivating the same as a sub-tenant for the last 12 or 13 years and that on 17th August, 1954 he was dispossessed wrongfully, by the opposite party. This claim was resisted on the ground that the opposite party purchased the tenancy rights of the land in 1944 from the Government through a public auction, that the applicant is a mere trespasser and was never admitted as a subtenant. The trial court came to the conclusion that there were discrepancies in the allegation made by the applicant and the evidence led by him to substantiate his pleadings, that the certain of a tenancy was not proved and that the relationship between the parties being considered, the parties are real brothers, it appeared that the applicant was mere trespasser. On these findings the applicant's request for reinstatement was rejected and hence this revision. The applicant has produced a certified copy of the Khasra Girdawari 'Exhibit P4-1' wherein in Svt.2009 and Svt.2010 the opposite party Moti is shown as Khatedar of the land in dispute and the applicant is entered as a sub-tenant (Jota) under him. It has been admitted by the opposite party himself that the applicant has been cultivating the land since 7 or 8 years. No steps were ever taken by the opposite party to dispossess the applicant during all this period or to have the entries in the revenue papers corrected. These facts to suggest that the applicant was admitted either expressly or impliedly as a sub-tenant by the opposite party, and it is too late for him now to deny this status to him. The reasonings advanced by the learned S. D. O. are clearly unsound and are much wide the mark. WE would discuss only the important ones. It was observed in the lower courts judgment that the pleadings of the applicant were against the evidence led by him. WE find no such discrepancy. The applicant in his application clearly alleged himself to be the sub-tenant of the land in dispute The fact that in the application it was mentioned that the land was entered in Sarkari Khata whereas in the Gasht girdawari it has been entered in the Khatedari of the opposite party. These versions can both very easily be reconciled. As pointed out by the opposite party himself he purchased the Khatedari rights from the Government in 1944 and it is highly probable that the entries prior to that stood in the name of the Government. Similarly it was not necessary for the applicant to prove the amount of rent that he was paying. As laid down in the definition of the word 'tenant' in the Rajasthan (Protection of Tenants) Ordinance, it is enough that there exists a liability to pay rent and it is immaterial whether the rent has been actually paid or not. In case of non-payment the land holder can bring a suit for recovery of arrears. But non-payment by itself will not amount to the termination of the tenancy. It is true that a tenancy can arise either by operation of law or by act of parties. The intention of the parties to create contract of tenancy may be inferred from an express agreement or impliedly from their conduct In the present case we find that the applicant was being treated as a sub-tenant since a number of years. It was not open to the opposite party to dispossess him by taking the law into their own hands. The decision of the lower court is clearly untenable. WE would, therefore, allow this revision, set aside the order of the lower court and direct that the applicant shall be reinstated over the land in dispute, Khasra numbers 53, 55, 57 and 59 in village Mangli, Tehsil Talera with immediate effect.