JAGGANNATH PRASHAD Vs. BHANWARLAL

JUDGEMENT

(1.) THIS second appeal against the order of the Revenue Appellate Authority, Kota dated 5th of November, 1962 has arisen out of the following circumstances. Bhanwarlal, who is respondent before us, filed a suit on the 24th of June, 1957 in the Court of the Assistant Collector, Kota, alleging that he was the khatedar of field No. 461 measuring 5 bighas located in Mandi Sumerganj. 7 years ago, Maharaja of Indragarh resumed the land, gave it to the appellant-defendant Jaggannath for putting up a garden. He filed a suit on the 31st of July, 1953 in the Court of the Sub Divisional Officer, Kota seeking declaration of his right as a khatedar on this land. The suit was decreed on the 7th of December, 1956 and by means of a mutation dated 21st of May, 1957 his name was entered as Khatedar on the land, in dispute. The plaintiff-respondent was holding this land as a khatedar. The appellant did not put any garden. He prayed that the possession of the appellant-defendant should be removed and he be put in possession. The case for the defendant-appellant was that Maharaja of Indragarh exercised sovereign powers in revenue matters and his orders, therefore, could not be challenged. It was in exercise of his sovereign rights that the land in the Khata of the respondent-plaintiff was taken away and entrusted to the appellant. The appellant had been in cultivatory possession of this land as a khatedar since it was given to him by Maharaja Indragarh. No revenue Court has any jurisdiction to interfere with that order. The order of the Sub-Divisional Officer conferring khatedari rights on the respondent-plaintiff was without jurisdiction and was not binding on him.

(2.) ON the basis of these pleadings, the trial court after framing five issues, including that of relief, dismissed the suit mainly on the ground that there was no force in this suit under 177 of the Rajasthan Tenancy Act, as the appellant had not broken any condition of putting tress on the land in dispute. An appeal was filed by the respondent against this order in the Court of the Revenue Appellate Authority and the Revenue Appellate Authority by a laconic judgment, held that when the Commissioner had decided that the respondent became the khatedar, the proceedings of Maharaja Indragarh were unlawful and when the allotment of land the appellant had been held as unlawful, the appellant was a trespasser, this order that the appellant-defendant has come in second appeal involved, in under sec possession llant was in favour of It is against before us.

(3.) IT is, therefore, clear to our mind that item No. 12 will apply to cases where a suit is filed against a person having a superior title or any one holding from him. Whereas item No. 10 will apply when a suit is filed against a rank trespasser. The learned counsel for the respondent argued that the aforesaid view has been overruled in Kajor vs. Pratap (1960 RLW page 434 ). We have carefully gone through that ruling and we do not think that this ruling in any way (which is a Single Bench Ruling) over-rules the proposition of law stated above. In Kajor vs. Pratap, a suit was filed by the plaintiff on the ground that he had been in peaceful possession of the land and that he was dispossessed by the defendant. Defendant's case was that his mother had during his minority entrusted the land in suit to the plaintiff for cultivation on condition that the latter would return it to the defendant when he came of age, and that he had entered into the possession of the land with the consent of the plaintiff. IT was held that the land did not belong to either of the parties. We may observe that it was not a case of the landlord having dispossessed the tenant, as is the present case. His Lordship Mr. Justice Modi, however, dealing with various types of cases that would be covered under ITem No. 10 or ITem No. 12, dealt with the case like the present, he remarked that "then there is another type of case in which it could not possibly be said that the suit was against a trespasser because on the plaintiff's own admission, the defendant was a superior, proprietor and, therefore, in such a case item No. 10 could not possibly apply. " (See for example, Bhuralal vs. Thikana Badi Sadri (3 ). " The ratio decidendi in that case is that when the facts of the case bring a particular suit within the ambit of both the ITem No. 10 and ITem No. 12, then ITem No. 10 should be made applicable as according to the accepted principles in such a case such construction should be adopted which favours the right to suit rather than which bars that right. In the present case, we do not think that there is any doubt in respect of the facts of the case which may bring them within the preview of both items 10 and 12. Admittedly, the respondent was dispossessed by Maharaja of Indragarh who was the landlord and the appellant derived this title from this Maharaja of Indragarh.