DHULI Vs. THAVRA

JUDGEMENT

(1.) This is a second appeal by the unsuccessful plaintiff against the concurrent decrees of the Revenue Appellate Authority, Udaipur dated 20.2.1964, and the Sub - Divisional Officer, Dungarpur, dated 31.12.1957, whereby the plaintiffs suit under sec. 183 of the Rajasthan Tenancy Act, 1955 was dismissed. The suit was originally brought by Uda, deceased and was continued by his widow, Shrimati Dhuli, the present appellant.

(2.) Udas case in brief was that he was the Khatedar tenant of eight plots of land measuring 8 bighas 13 biswas in village Navagram and that he was recorded as such in the settlement papers. He alleged that he had been unlawfully dispossessed by the defendant - respondents in Smt. 2013. The plea of the defendants was that the land originally belonged to their ancestors who had given it for cultivation to Uda because of their absence from the village prior to the settlement operations of 1999 Samat, and that Uda had surrendered the land to them by a written deed (Ex. D.2) dated 11.7.1956 A.D., said to have been written by Gamir Singh, D.W.I, at the instance of Uda. The learned trial court held that Uda was the Khatedar tenant of the land in dispute but at the same time found that the land had been surrendered by the Uda in favour of the defendants by what was styled as the surrender deed (Ex. D. 2.) The trial court held that the plaintiff was not entitled to recover possession or to claim any damages. The learned court of first appeal did not explicitly hold that Uda was the khatedar tenant. On the other hand, it merely confined itself to the question whether there had been a surrender or not. The judgment of the court of first appeal therefore does not very much help to elucidate the case in all its aspects.

(3.) Ex.P.1 is the settlement parcha issued by the late Dungarpur State, the period of settlement being 1999 - 2008 Samvat. In this document Uda is recorded as the tenant of the state. The trial court held that Uda was the Khatedar tenant of the land in dispute, but as pointed out above, the learned Revenue Appellate Authority did not address itself to this question. The other important document is Ex. D.2. Both the lower courts have held this document to have been proved, and the appellant has not been able to show that this finding is in any sense perverse. It is signed by Uda and bears the date 11.7.1956. It says that the land in dispute was given to Uda by the defendants before the settlement of 1999 on account of the relationship between the parties, and that he (Uda) no longer wanted this land in his old age because he had some other land for making a living. It further recites that he was handing over this land to the defendants. Another important point in this document is that the land in dispute had been erroneousy recorded in the settlement papers in the name of Uda. The learned counsel for the appellant has argued that this is not a valid surrender in terms of Sec. 55 and 56 of the Rajasthan Tenancy Act, 1955, because it does not bear the attestation of the Tehsildar or any other authority. This argument is based on a complete misunderstanding of the scope of secs. 55 and 56. According to these provisions, where a tenant is bound by a lease or other agreement to occupy or continue to occupy his holdings in the following year must surrender it by a document duly attested and issue a notice of surrender to the land -holder before the 1st May, so as to avoid liability to pay rent for the following year. These provisions are intended to safeguard the interests of the land - holder against untimely and capricious surrenders by their tenants. These provisions also seek to protect the interest of a tenant who wishes to surrender his holding before the beginning of the next agricultural year. These provisions do not at all mean that there can be no surrender without a surrender deed which is attested by the authorities mentioned in sec.55. A tenant may surrender without a proper surrender deed or otherwise, but the only evil consequence is that he remains liable to pay rent to the landholder for the following agricultural year, if the land -holder fails to find another tenant. These provisions are not at all applicable to the matter in controversy in the present case. Uda was a tenant of the land holding direct from the State in 1999 Smt. When the Rajasthan Tenancy Act, 1955 came into force on the 15.10.1955, he became a Khatedar tenant within the meaning of that Act. On any subsequent date he could surrender the land to no body but the State. Therefore, Ex. D.2 cannot legally be held to be a surrender of the disputed land to the defendant -respondents who were not the land -holders. Ex.D. 2 cannot also be construed to be a legal transfer by Uda to the defendants because the land being obviously worth more than Rs. 100/ - it could only be transferred legally by a registered deed as laid down in the Transfer of Property Act. Ex.D. 2 therefore cannot be availed of by the defendants as a sanction for the transfer of the land to them, whether by way of surrender or otherwise the Uda remained the Khatedar tenant of the land in dispute there being no legal transfer, and had the right to claim the and back. The defendants were not trespasers when they entered upon the land, but they must yield possession since they were asked to return the land. It is not only unlawful entry which amounts, to trespass, but the retention of possession against the will of the land -holder is also an act of trespass. However, in the circumstances of the case, the plaintiff does not deserve the relief of damages.