SARWAN Vs. LALA BADRI PRASAD

JUDGEMENT

(1.) THE circumstances that give rise to this second appeal may briefly be stated as below. Lala Badri Prasad and others brought a suit against Sarwan for ejectment under sec. 175 of the Rajasthan Tenancy Act for alleged sub-letting in the court of the Assistant Collector in respect of the land in dispute. THE allegations in the plaint were that one Gainda was admitted as a tenant by the plaintiffs in Svt. 2004 on a fixed rent of Rs. 120/- per annum ; that Gainda admitted Sarwan defendant as a sub-tenant of one half of the land in Svt. 2008 in contravention of the terms of tenancy ; that Gainda tenant died without leaving behind any heirs in Svt. 2010 ; that Sarwan refused to surrender the land that was in his possession ; that during the continuance of the Rajasthan (Protection of Tenants) Ordinance, 1949, the defendant was not liable to ejectment that on the enforcement of the Rajasthan Tenancy Act on 15 10-1955 the sub-tenant became so liable and hence it was prayed that he be so ejected. Sarwan contested the claim on the ground that he was the tenant of the land in dispute since Svt. 2010; that he was so recognised by the Tehsildar when the dispute arose about his status; and that he has been paying the rent to the plaintiffs. It was also alleged by the defendants that Gainda was old and infirm and was, therefore, entitled to sub-let the land. THE trial court after examining the evidence led in the case came to the conclusion that Gainda was admitted as a tenant by the plaintiffs for a period of one year in Svt. 2006 ; that the plaintiff could produce no qabuliyat of Svt. 2007 ; that the defendant was made a partner by Gainda in Svt. 2008 and as this sub-letting took place prior to the enforcement of the Rajasthan Tenancy Act the defendant was not liable to ejectment. THE suit was, therefore, dismissed by the trial court. THE plaintiffs went up in appeal before the learned Commissioner who reversed the decision of the trial court on the ground that Gainda having died in Svt. 2010 Sarwan's sub-tenancy terminated thereby ; that sub-letting is permissible only in the circumstances mentioned in sec. 46 of the Rajasthan Tenancy Act ; and that Sarwan was liable to ejectment under sec. 183 of the said Act. THE defendant has come up in appeal before us.

(2.) DURING the hearing of the case it transpired that findings of the lower courts on the following points involved for determination in the case were not specifically recorded in their judgments : - (1) Did Gainda die heirless, if so when and with what effect ? (2) Does the appellant's sub-tenancy terminate on Gainda's death ? (3) Is the appellant liable to ejectment ? The parties were given opportunity to lead their evidence on these facta. None was led by the appellant. The respondent has filed a certified copy of an entry in the death register maintained by the Municipal Board Deeg wherein at item No. 8 dated 13. 8. 1953 Gainda Chamar resident of Ward No. 4 is shown as having died on 12. 8. 53 as reported by Shrimati Kalawati Khakroba.