UMA Vs. KAJOR

JUDGEMENT

(1.) THE learned Division Bench which heard this appeal has referred the following two questions to this Larger Bench; (1) Whether the amendment in Section 183 of the Rajasthan Tenancy Act by Ordinance No. 9 of 1970 and later on by Act No. 17 of 1970 is prospective or retrospective in nature keeping in view the provisions of Section 46a of the Rajasthan Tenancy Act. (2) Whether in the facts and circumstances of this case the appeal shall have to be disposed of in accordance with the orders of the larger bench dated 3-4- 70 or the Division Bench hearing the appeal is still free to take a different view having regard to the amendment of section 183 of the Rajasthan Tenancy Act by ordinance No. 9 of 1970 and Act No. 17 of 1970.

(2.) IN order to appreciate these questions a few facts are necessary to be stated. The plaintiff Uma and others are members of the Scheduled Tribe. They filed a suit against Kajor who is a brahmin and is not a member of the Scheduled Caste or Scheduled Tribe for restoration of possession of certain lands under section 183 Rajasthan Tenancy Act. That suit was decreed by the Sub-Divisional Officer, Udaipur on 12-1 67. The defendant went up in appeal before the learned Revenue Appellate Authority, Udaipur. This appeal was accepted on 5-9-67 and the plaintiffs suit was dismissed. Then the plaintiffs filed a second appeal to this Board. This appeal was heard by a learned Division Bench and on 5-8-69 the learned Division Bench differing with the view taken by another Division Bench referred the following question to a Larger Bench: - "whether in the circumstances of the instance case a suit can be brought forth by a member belonging to a Scheduled Tribe or a Scheduled Caste under Section 183 of the Rajasthan Tenancy Act against a trespasser who is not a member of a Scheduled Tribe or a Scheduled Caste, the former having been held as not competent to admit the latter as a tenant in view of the provisions of Sec. 46a of the Rajasthan Tenancy Act. " The occasion for this reference arose because under sec. 183 Rajasthan Tenancy Act as it then stood a suit could be filed by a person who was entitled to admit the trespasser as a tenant. The earlier decision of D B. referred to above was to the effect that on account of the bar contained in sec. 46a a person belonging to the Scheduled Caste or Scheduled Tribe could not admit a person not belonging to Scheduled Caste or Schedule Tribe, as tenant and therefore such a person belonging to Schedule Caste or Tribe could not bring a suit for ejectment under Sec. 183 against a trespasser who did not belong to Scheduled Caste or Scheduled Tribe but the learned D. B. which heard this appeal was not in agreement with this decision of the other D. B. The Larger Bench which heard this reference by its judgment dated 3-4-70 answered the reference to the effect that "a member belonging to the Scheduled Caste or Tribe cannot bring a suit under sec. 183 of the Rajasthan Tenancy Act against a trespasser who is not a member of a Scheduled Caste or Tribe for ejectment because the former is not entitled to admit him as tenant in view of the provisions of Sec. 46a which debarred him from letting out his - holding to a non Scheduled Caste or Tribe person. " On receiving this answer from the Larger Bench the Division Bench proceeded to dispose of the appeal but in doing so it was faced with some difficulty. After the reference was answered by the Larger Bench sec. 183 of the Rajasthan Tenancy Act was amended by Ordinance No. 9 of 1970 on 13-8 70 (and later this Ordinance was replaced by Act No. 17 of 1970 on 27-11-70) by substituting the words "on the suit of the person or persons entitled to eject him" for the words "on the suit of the person or persons entitled to admit him as a tenant. " This amendment had been found to have retrospective effect by another D. B. in the case of Ram Sevak vs. Natthi, (reported in RRD 1974 NUC 23 ). IN view of this amendment and the retrospective effect given to it by another D. B. question arose before the learned D. B. hearing this appeal after the reference was answered by the Larger Bench, whether in fact the amendment of Sec. 183 was with retrospective effect as held in the case of Ram Sevak vs. Natthi by another D. B. and even if it had retrospective effect whether it was still bound to dispose of the appeal in accordance with the answer furnishing by the Larger Bench to the question referred to it in view of sec. 11 of the Rajasthan Land Revenue Act. Faced with this difficulty the learned members of the D. B. thought it fit to refer the aforesaid two questions to the still Larger Bench.

(3.) IN view of what has been stated above, our answer to the second question is that the D. B. shall have to dispose of the appeal in accordance with the opinion of the Larger Bench vide its judgment dated 3-4-70 and the D B. hearing the appeal is now free to take a different view having regard to the amendment of Section 183 of the Rajasthan Tenancy Act by Ordinance No. 9 of 1970 and Act No. 17 of 1970, so far as this case is concerned.