JAISARAM Vs. PARMARAM

JUDGEMENT

(1.) THE circumstance which give rise to this revision are these : - Jaisa applicant put up an application before the Tehsildar Padampura on 19. 6. 56 for correction of entries in the Gasht Girdawari with the allegations that the land in dispute Chak 29 M. L. Murrabba 62, 17 bighas 14 biswas, Tehsil Padampura-was allotted to him for temporary cultivation in 1952; that he had been cultivating it since them; that during the year of application as well he had cultivated it but that the entry had been made by the Patwari in the name of Hanuman and Gangaram and hence the same may be corrected. THE Tehsildar after obtaining a report from the Patwari and the Land Records Inspector and considering the result of the enquiry held by the Naibtehsildar forwarded the papers to the S. D. O. Karanpur on 9. 7. 1953 with the recommendation that the entry in the Gasht Girdawari be corrected as prayed for by Jaisa. On 10. 7. 1957 Parmaram put up an application before the Tehsildar Padampur to the effect that Jaisa was not cultivating personally the land which was allotted to him for personal cultivation, who got it cultivated through Hanuman, that this fact appeared in the Gasht Girdawari as well and hence it was prayed that after necessary verification action should be taken. It appears from the record that the S. D. O. proceeded to the spot on 15. 7. 1956 and recorded the statement of Jaisa and Magha and on 11. 8. 56 came to the conclusion that Jaisa had been continuously cultivating the land himself and that Parma wanted to have the land in dispute allotted to him in exchange and hence his application 'was motivated by that factor. Parma's request was rejected. Param went up in appeal against the order of the S. D. O. dated 11. 8. 1956 before the Additional Collector Ganganagar who framed three additional issues on 26. 9. 1956 and directed the Tehsildar to record such additional evidence as the parties may lead, A number of witnesses were examined by the parties. After hearing the arguments of the parties the learned Additional Collector came to the couclusion that Jaisa was not cultivating the land personally, that the entries in the Gasht Girdawari were correct and that Jaisa was liable to ejectment. THE appeal was allowed, the order of the S. D. O. was set aside and the land in dispute was directed to be allotted afresh after Jaisa's ejectment. Jaisa went up in appeal before the Commissioner Bikaner but met with no success. Hence the revision.

(2.) WE have heard the learned counsel for the parties and have examined the record as well. It has not been denied before us that one of the conditions upon which the land was allotted to Jaisa was that he would cultivate the land personally and that on his failure to do so he shall be liable to be ejected therefrom. The breach of a condition on which a tenant is liable to be ejected by a special contract not inconsistent with the provisions of the Rajasthan Tenancy Act, has been regarded as a valid ground for ejectment under sec. 177 of this Act. In view of the order that we are making we refrain from expressing any opinion as to whether Jaisa had in fact broken the condition of temporary allotment or not. This is a question which shall have to be determined after remand. As pointed out above the original enquiry has held by the S. D. O. who on 11. 8. 56 held that Jaisa had committed no breach of the conditions of allotment and hence he was entitled to continue possession. The learned Additional Collector was of the opinion that necessary issues were not framed in the case He accordingly framed them and remitted the record to the Tehsildar for allowing the parties to adduce further evidence in the case. WE are really surprised at the extraordinary step taken by the learned Additional Collector in the case. WE would invite the attention of the learned Additional Collector to the provisions of Order 41 Rule 25 C. P. C. which provides that where appellate court considers essential that additional issue ought to be framed he may refer the the same for trial to the court from whose decree the appeal is preferred and in such case shall direct such court to the additional evidence required. It was not open to the Additional Collector to remand the case to the Tehsildar as the order which was appealed against before him was passed by the S. D. O. He could have remitted these issues to the S. D. O. from whose decision the appeal was preferred before him and to no other court. The evidence recorded by the Tehsildar is, therefore no legal evidence and cannot be constituted as the basis of any decision whatsoever in the case. It is indeed surprising that this aspect of the matter was not examined by the learned Commissioner with the result that the proceedings conducted by the Additional Collector were confirmed by him. The learned Additional Collector has based bis decision entirely on the evidence recorded by the Tehsildar and also upon the result of examination of Revenue record reported by the Tehsildar, This decision thus stands clearly vitiated as the procedure adopted was in flagrant violation of the mandatary provisions of law. There has thus been a grave illegality in the exercise of their jurisdiction by the subordinate appellate courts. WE, therefore, allow this revision, set aside the order of the Commissioner and the Additional Collector and remand the case back to the Court of the Additional Collect-tor Ganganagar with the direction that the record should be sent to the Court of the S. D. O. Shri Karanpur for recording additional evidence on the issues framed by him on 26. 9. 56 and that on receipt of the evidence the appeal filed before him should be disposed of in accordance with law. .