BAGHA Vs. RAMA

JUDGEMENT

(1.) This is a second appeal against the judgment and decree of the Revenue Appellate Authority, Udaipur, dated 9.11.1963, whereby the judgment and decree of the Sub Divisional Officer, Bhim, dated 8 -8 -1962, was reversed.

(2.) The facts are that the appellants before us had brought a suit under sec. 183 of the Rajasthan Tenancy Act, 1955, for the ejectment of the respondents from khasra number 949 and 950 in village Hempura. They averred that they were owners in possession of the suit land and had been unlawfully dispossessed on a certain date in Samwat 2012. They claimed that they were entered in the settlement records as the land -holders. The respondents denied that the appellants were the owners of the land in dispute and asserted that they had acquired khatedari rights in the land in dispute and a mutation had been entered in their favour. They also stated that the land in dispute had been transferred to them by the appellants by a written deed (Ex. D. 1) The trial court found on the evidence that the respondents had not entered the disputed land unlawfully but that they had retained possession unlawfully. The suit was decreed. The trial court held that Ex. D. 1, though it could not be used to prove the terms of the contract embodied therein, could be used for ascertaining the nature of the possession of the respondents, and that it showed that the respondents had entered the land lawfully with the consent of the appellants. But the trial court further held that since the respondents remained in possession without the consent of the appellants at the time the suit was brought, the possession of the respondents was unlawful. In the first appeal, the learned Revenue Appellate Authority has held that Ex. D. 1 , which was executed in Svt. 2008, could be used to show the nature of possession of the respondents. The learned court of first appeal differed from the view taken by the trial court that the retention of possession by the respondents was unlawful. The appeal was accepted and the suit dismissed.

(3.) We have heard the counsel for the parties at length. We note that the lower courts have not addressed themselves to the question whether the appellants were entitled to bring a suit under Sec. 103 of the Rajasthan Tenancy Act, 1955. Under that provision of the aforesaid Act, only such a person can bring a suit who has a right to admit another person to the land in dispute. In the present case the appellants asserted that they were the owners in possession who were unlawfully dispossessed while the respondents stated that they had acquired khatedari rights in the land. The first and foremost question to determine in the suit was whether the appellants as plaintiffs had the status to bring the suit under Sec. 183 of the Tenancy Act. This question was required to be determined with reference to the Mewar Law in Smt 2008 when the parties are stated to have entered into certain land transactions. The status of the appellants had further to be ascertained on the date when the Rajasthan Tenancy Act came into force. It is only after the determination of these points that a proper adjudication between the parties could have been arrived at. We notice that in the course of the trial no certified copy of the record of rights has been produced by either party and that reliance has been placed merely on a certified copy of the khasra girdawari for the period 2009 -2011 Smt. As this court has held in Full Bench the khasra girdawari is not the record of rights though it is piece of relevant evidence, and no presumption of truth attaches to the entries made in it. In such suits the party should invariably be asked to produce copies of the settlement records, if available, or failing that the copies of the jamabandies.