BHERA Vs. NATHULAL

JUDGEMENT

(1.) This is the defendants second appeal in a suit filed by the plaintiff respondent against him for recovery of possession over the land in dispute and arrears of rent in kind worth Rs. 180/ -. The plaintiffs allegation is that he was the malik of the land in question and that the defendants cultivated it as a tenant and executed a rent -note for payment of the rent, and that since he did not pay the rent he should be dispossessed there -from and the amount be decreed The defendants denied the allegation and urged that they were the bapidars of this land and bad not executed any rent -deed as tenants of the plaintiff. On the basis of the pleadings the trial court framed several issues out of which issue No. 6 was as to whether the plaintiff Nathu was the proprietor of the land which came to his possession as a proprietor in persuance of a sale deed dated Ashadh Sudi 15,Smt. 2005. As according to the trial court it involved a question of proprietary title he directed that the issue may be referred to a civil court in accordance with sec. 36 of the Rajasthan Revenue Court (Procedure and Jurisdiction)Act for a decision on the proprietary right of the parlies. Being aggrieved with this order the plaintiff went in appeal before the learned Additional Commissioner who however, held that a question of proprietary title was not involved in the suit and the order given by the trial court was accordingly set aside. The lower appellate court accordingly remanded the case to the trial court with the direction to decide all the issues and dispose of the case according to law.

(2.) Hence this second appeal. We have heard the counsel appearing for the parties and have also perused the record of the case From a perusal of the pleadings, we find that the plea of the proprietary right is not substantially in issue in this case. Explanation 1 to sec. 239 of the Rajasthan Tenancy Act which is a reproduction of sec. 36 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act lays down that a plea of proprietary right which is clearly untenable and intended to solely oust the jurisdiction shall not be deemed to raise a question of a proprietary right within the meaning of this section. In the case before us, the plaintiff has sued the appellant on the basis of the rent -note executed by the latter as a tenant. In our opinion, therefore, the defendant has set up his claim to the land as its proprietor vis -a -vis his landlord the plaintiff simply to oust the jurisdiction of the revenue court. There is nothing on the record to suggest at this stage that the defendant had any proprietary title on this land or that he held a bapi patta for the same. He has not said anything about this in his written statement and we also do not find any document on the file to this effect. The learned Additional Commissioner has, therefore, rightly held that the suit as it is based on a rent -note can be dismissed or decreed accordingly as the plaintiff proves its execution by the defendant as a tenant. This is a matter of evidence and can be decided on merits after the entire evidence of the parties is recorded on all the issues. The result is that the appeal fails and the order given by the lower court is upheld.