AKBAR KHAN Vs. LAKHAN SINGH

JUDGEMENT

(1.) THIS second appeal has been filed by the defendant against the appellate decree of the Divisional Commissioner. Bikaner dated 22. 8. 57 confirming the decree of the trial court as far as it related to the ejectment of the defendant from the land in dispute but modifying it in respect of the amount of mesne profits - the amount decreed by the trial court was Rs. 108/12/- and the same was reduced to Rs. 65/4/- by the first appellate court.

(2.) WE have heard the learned counsel for the parties and have examined the the record as well. To appreciate the points involved for determination in this second appeal it is essential to refer to certain facts antecedent to the institution of the present suit in point of time. Shri Lakhan Singh Subedar Major Ganga Risala, Bikaner sent an application to the Collector Churu through the Officer Commanding, Ganga Risala on 30th March, 1951 in which it was stated that Lakhan Singh owned the land in dispute - Khasra No. 41 measuring 41 bighas 18 biswas in Patta Kanwari, that the Khatedari of the said field was given to him by the settlement Commissioner, Sader, vide, his decision dated 18. 5. 45, that the field was in those days cultivated by one Akbar Khan, that Akbar Khan was requested to hand over the field to Lakhan Singh but Akbar Khan totally refused to do so, that the Rajasthan (Protection of Tenants) Ordinance was not applicable to military personnel and hence it was prayed in the application that Akbar Khan should "leave the land with retrospective effect" and possession be handed over to Lakhan Singh. This application was forwarded by the Collector, Churu on 3. 4. 51, to the Tehsildar Ratangarh for enquiry and, report. The Tehsildar forwarded the papers to the Assistant Collector, Ratangarh on 31. 5. 51 with the remarks that the application for ejectment court he heard only by the Assistant Collector. The Assistant Collector directed the issue of a notice to Akbar Khan to show cause as to why he should not be ejected from the land in dispute. At first ex parte proceedings were directed against Akbar Khan, but this order was set aside on payment of costs and Akbar Khan was allowed to participate in the proceedings. On 6. 10. 51 the case was transferred to the court of the Anti-Ejectment Officer, Churu. After recording the evidence of the parties the following order was passed on 2. 7. 52; - "counsel for the parties present. Arguments heard. Lakhan Singh has applied for ejectment of Akbar Khan from the field on the ground that he is a military personnel and hence is not governed by the provisions of the Rajasthan (Protection of Tenants) Ordinance. Akbar Khan's contention is that the land in dispute does not belong to Lakhan Singh nor he is a tenant of Lakhan Singh. Lakhan Singh was never in possession of the land. That the land was taken for kasht from Thikana Kanwari. The counsel for the parties agree that Lakhan Singh being a military personnel is not governed by the provisions of the Rajas-than (Protection of Tenants) Ordinance. This is an application for ejectment. For recovery of possession no action can be taken on such summary application. Lakhan Singh should bring regular proceedings in a competent court. The application be rejected. " On 18. 3. 53 Lakhan Singh brought this suit in the court of the Assistant Collector Ratangarh. It was averred in the plaint that the land in dispute was in the Khatedari of the plaintiff, that the plaintiff held it in muafi from Thikana Kanwari, that the plaintiff was recorded as Khatedar and the defendants as Kashtkar thereof, that the plaintiff being an employee of the military forces was not liable to the provisions of the Rajasthan (Protection of Tenants) Ordinance and hence he applied for ejectment of the defendant, that in the course of those proceedings the defendant denied the Khatedari rights of the plaintiff, that the defendant denied all rights of the plaintiff in the land, that by the adoption of this plea the defendant forfeited his tenancy rights and was reduced to the status of a rank trespasser, that the annual rent of the land is Rs. 21/12/0, that the defendant has not been paying rent since 1947 AD. and hence is liable to pay Rs. 108/12/- that the defendant was asked to vacate his possession but he refused and that a decree for ejectment and mesne profits amounting to Rs. 108/12/- be granted against him. The defendant in his written statement pleaded that he was cultivating the land since Svt. 1997, that the plaintiff had no right to get him ejected, that the defendant was regularly paying rents to Thikana Kanwari that during the last Pamayash the land was recorded as Makbooza Thikana with the defendant as its Kashtkar, that the defendant had no knowledge about the land being entered in the Khatedari of the plaintiff and that the defendant was not liable to ejectment under the provisions of the Bikaner Tenancy Act. The defendant however admitted the fact of presentation of the application presented by the plaintiff for his ejectment and the plea that was taken up in it by him. The trial court framed the following issues in the case: - 1. (a) Is the land not in the Khatedari of the plaintiff? (b) Is the plaintiff entitled to eject the defendant? 2. Is the defendant paying the land in dispute to Thikana Kanwari and if so with what effect?