KALOORAM Vs. RAMA

JUDGEMENT

(1.) THIS second appeal has been filed against the order of the learned Revenue Appellate Authority, Udaipur, dated 27-4-63, whereby he confirmed the judgment and decree of the Asstt. Collector, Kapasin, dated 23-8-61 in a suit for injunction brought by the respondent, Rama, under Sec. 188 of the Rajasthan Tenancy Act. Briefly stated the facts of the case are that Rama filed a suit against the appellants under Sec. 188 of the Rajasthan Tenancy Act with the allegation that the suit land had been in his possession as a sub-tenant for the last 25 years and that on 13-10-57, the defendants-appellants tried to dispossess him by force. The defendants-appellants denied the allegation of the plaintiff respondent. After framing the issues and recording the evidence, the trial court dismissed the suit holding that the plaintiff was a Shijari and was not competent to bring a suit under Sec. 188 of the Rajasthan Tenancy Act. The first appeal against this order remained unsuccessful. The second appeal, however, was accepted by the Board of Revenue and the case was remanded for a fresh trial and enquiry with regard to the status of the plaintiff. It was, further, observed by the Board of Revenue that it remained to be determined whether a Shijari in the State of Mewar was purely a partner or a tenant or a sub-tenant. After remand, the trial court reframed the issues and recorded evidence. THIS time, however, the trial court came to the conclusion that the plaintiff was a tenant and decreed the suit. The first appeal filed by the defendants-appellants remained unsuccessful. Hence this second appeal As will appear from the above narration, the entire case hinges upon the relationship between the parties. It appears that the word "shijari" has not been defined in the Kanun Mal Mewar. However, my attention was drawn to Kanun Bandobast relating to Jagir Muafi. According to Sec. 4 (Gnn) of the same, Shijari has been defined as follows: *** THIS would mean that a Shijari is an Assami who cultivates without any rights. It proceeds to state that the right of the Shikmi or Shijari is based on the agreement and corresponds to the same. THIS Section recognises three other forms of Assamis viz. Pucca Haq (Khadam), Kutchna Haq (Khatedari) and Mustkil Shikmi. The pucca haq includes heritable as well as transferable rights. The kutchha haq includes heritable rights, but transferable rights are limited to mortgage, in accordance with the local custom. The Mustkil Haq includes only the heritable right. The Shijari or the Shikmi have no such rights. As stated above, their rights are based on the agreement between the parties. The case of the plaintiff-respondent is that he was a Shijari but his contention is that he was doing all the agricultural operations and was, therefore, virtually the tenant of the land. In view of the definition of the Shijari as given above, we do not see how a Shijari can claim to be a tenant. At best, his status is that of landless labourer who has been engaged by a tenant to do agricultural operations on his behalf. If the plaintiff had been a tenant, he would have automatically acquired khatadari rights at the enforcement of the Rajasthan Tenancy Act in St. 2013, but he has not made any such claim. It is obvious from the above discussion that the lower courts have mis-construed the definition of the term 'shijari' and have fallen into an error in holding that the plaintiff was a tenant. We find ourselves unable to accept this finding and have no hesitation in holding that the plaintiff cannot maintain the suit under Sec. 188 of the Rajasthan Tenancy Act. In the result, therefore, we accept this second appeal and set aside the decrees of the courts below. Per Shri R. N. Madhok. I have gone through the order that my learned colleague, Shri Hooja, proposes to make in this case, and regret that I am unable to agree with him with regard to the interpretation to be put on the expression "shijari", which status the respondent has claimed and which the lower courts have admitted, though they are at variance with regard to the meaning of the term "shijari". In chapter V of the Kanoon Mal Mewar, four types of kashtkars or tenants have been listed (1) Kharamdar or Bapidar, (2) Khatedar, (3) Mushtakil Shikmi and (4) Shikmi. The Kharamdars or Bapidars had heritable and transferable rights. The khatedars had heritable rights but limited rights of transfer in accordance with the local custom as shown in the revenue papers. The mushtakil shikmis had heritable rights, but no right of transfer. The last type of tenants in the list, the "shikmis", were tenants to whom land had been let on a temporary basis. These shikmis had only such rights as flowed to them from the terms of the leases. The Shikmis were liable to ejectment by notice before Baisakh Punam. The term "shijari" does not occur at all in the Kanoon Mal Mewar. But this expression finds mention in the "kanoon Bandobast Mutalik Jagir Muafi" issued on 1-4-1937. Sec. 4 of the Kanoon Bando-bast deals with rights of cultivation and lists the following types of rights: (1) Kharam rights, (2) Khatedari rights, (3) Rights of Mushtakil Shikmis, and (4) Rights of Shik mis or Shijaris. It is noticed that the terms "kharamdar", "khatedar", "mushtkil Shikmi" and "shikmi" have the same conotation in the Kanoon Bandobast as in the Kanoon Mal Mewar. The Kanoon Bandobast says that a "shijari" is one who cultivates under another person without any right, and that the rights of a Shikmi or Shijari are created by contract and are in accordance with the terms of the contract. The gradation of rights both in the Kanoon Mal Mewar and the Kanoon Bandobast merely means that some tenants have better rights conferred on them by the general revenue law than others, while at the bottom the "shikmi" and "shijari" have no rights other than those conferred on them by the landholder according to the terms of the lease. Nonetheless, a tenant is a tenant whether he has any security of tenure or any durable right or not. In the present case, it is proved that the respondent was liable to pay to the landlord one half of the share of the crop and to contribute half of the land revenue and the seed. For his part, the landlord was to contribute the entire manure, but only half of the seed, and at the same time was responsible for the payment of half of the land revenue himself. To my mind, the landlord in this case was basically a receiver of rent, while the respondent had a status which had the attributes of tenancy, though his tenure was at the mercy of the landholder. The respondent is entered in the harvest inspection report as a "shijari" who performed the agricultural operations and was in possession of the land as such. In my opinion, the respondent was in possession of the land under the landholder as a tenant and in no other capacity. I cannot subscribe to the view that the possession of the respondent was on behalf of the landholder, and that the constructive possession remained with the landholder. On the coming into force of the Rajasthan Tenancy Act, 1955, the respondent became either a khatedar tenant or a ghair khatedar tenant, which remains to be determined. But even if it is eventually held that the respondent is a ghair khatedar tenant, he can still maintain a suit for permanent injunction under sec. 188 of the Rajasthan Tenancy Act. The learned Revenue Appellate Authority has thrown out the case of the respondent merely on the ground that a 'shikmi' is not a tenant, without going into the merits of the suit. In my opinion, this was an error, and the respondent's suit as a tenant deserves to be decided on the merits. Per Shri Gajendra Singh (on reference)To resolve the difference of opinion occurring between the two Members Shri R. N. Madhok and Shri G. B. K. Hooja Members of the Board in the disposal of this appeal the same has been referred to me by the Chairman under section 13 of the Rajasthan Land Revenue Act, 1956 for disposal of this appeal. I have heard the counsel of the parties and perused the order proposed by both the Members for the disposal of this appeal. In this appeal Rama plaintiff respondent has filed a suit u/s 188 of the Rajasthan Tenancy Act for obtaining permanent induction against Kaluram defendant appellant restraining him from interfering with his possession of the suit land over which he himself styled it as a 'sijari. The two subordinate Courts decreed the plaintiff's suit by holding that the plaintiff being' Sijari' was a sub-tenant. Shri G. B. K. Hooja in the order which he term 'sijari' connotes partnership and not a tenancy and therefore the plaintiff could not maintain a suit as a tenant u/s 188 of the Rajasthan Tenancy Act. Shri R. N. Madhok differed on this question of law and stated that the term 'sijari' as defined in Kanun Bandobast Mutallika Jagir Muafi of Udaipur on 1-4-1937 refers to the rights of Shikmis and Sijari. It clearly says that they have no such rights under the law except those rights which are conferred on them by their land-holder. On this basis he came to the conclusion that he was nevertheless a tenant and not a partner, although it may be that his rights as a tenant were less than the other classes of tenants mentioned in the Kanun Mal Mewar. He had also referred to the facts of the present case in which it was proved that the plaintiff respondent was liable to pay to the landlord 1 /2 of the share of the crop and to contribute half of the land revenue and seed. The land-lord on his part was to contribute the entire manure; but only half of the seed and at the same time was responsible for the payment of half the land revenue. Inspite of these facts as proved in the present case Shri Madhok came to the conclusion that the landlord was basically a receiver of the rent while the respondent has a status which had the attributes of tenancy though his tenure was at the mercy of the landholder. He therefore proposed that the respondent should be treated as a tenant. The question therefore which arises before me for decision is whether the term 'sijari' in Mewar or as it is understood should be considered as a class of a tenant or purely a partner in the cultivation of the land. I have gone through the record and also the Kanun Mal Mewar as well as Kanun Bandobast Mutallika jagir muafi. The term 'sijari' does not find any place as far as Kanun Mal Mewar is concerned. That Kanun Mal Mewar or the Tenancy Law of Mewar recognises 4 kinds of tenants namely Khadamdar, Bapidar, Khatedar, Mushtkil Shikmi and Shikmi, with variations of heritable and transferable rights. It is in Kanun Bandobast that is the Settlement Rules of jagirs that we find a reference to a term 'sijari' which is defined as a person who cultivates land without any rights and they are governed according to the agreement between the land-holder and the tenant. The agreement as referred to by Shri Madhok in his order proposed to be passed was that the plaintiff respondent was to contribute the entire agricultural operations while the defendant appellant was to supply the entire manure and half the seed. In view of the fact that the cultivation of land was based on the joint enterprise of both the parties it is clear that the relationship between them could not be that of a tenant and a landlord; but merely that of partners in an enterprise. The trem 'sijari' clearly means a partner and not a tenant. In order to be a tenant, the landlord must transfer the exclusive interest in land concerned to the tenant in consideration of the payment of rent irrespective of the rights conferred by the Tenancy Law on such tenant. In this case no exclusive interest had been transferred as the facts are found on the record to the plaintiff respondent. The land-lord had no hand in providing the manure as well as the seed and shared half the produce on harvest. While the plaintiff respondent had to carry on the agricultural operations and also to contribute towards half the seed and payment of land revenue, while cultivating the land belonging to the defendant appellant. In other words, the partnership between the two parties existed. The defendant appellant was to provide the land, the entire manure and half the seed while the plaintiff respondent tilled the land and provided half the land revenue and seed. These were the terms of the partnership agreement between the parties. In view of these proved facts and irresistible inference would be that the relationship between the two persons was not of a tenant and a landlord; but that of a partner. It is not necessary for both the partners to share the manual burden of the enterprise equally; but it is sufficient if the agreement provides that one partner may merely provide the finances i. e. the capital and the other may do all the labour and yet it will bear all the elements of a partnership agreement. An occa-tion to distinguish partnership and tenancy arose in the case of Sankerlal vs. Shri Kishen decided by the Board and reported in 1965 R. R. D. at page 326, wherein the previous view taken by the Board of Revenue in R. R. D. 1959 page 149 was dissented. In the decision of that case I was one of the party. It was decided therein, that partnership arises from contract and disparity in contribution of resource is no ground to hold, that partnership does not exist. Thus I do not agree with the opinion expressed by Shri Madhok in this case by treating the plaintiff respondent as a tenant and not as a partner. I am inclined to agree with the view taken by Shri G. B. K. Hooja in this case. The term 'sijari' in the present case, clearly, means that the plaintiff respondent was not a tenant but a partner of the defendant. The term Sijari in common parlance would also mean partnership otherwise this term Sijari would not have been used in the present case and Shikami with no tenancy rights could have been used to describe the status of the plaintiff respondent. For these reasons I am inclined to agree with the view taken by Shri G. B. K. Hooja and hold that the plaintiff respondent was not a tenant and therefore he would not under the law maintain a suit u/s. 188 of the Rajasthan Tenancy Act which remedy is only available to a tenant. Accordingly on the basis of the majority of opinion I accept the appeal of the appellant, set aside the judgment and decree of both the Courts and dismiss the plaintiff respondant's suit. .