KANHA Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THE petitioners, the legal heirs of Chhitar, are aggrieved against the order dated 18. 7. 1988 (Annex. 3) passed by the Board of Revenue by which order the judgment dated 16. 9. 1978 (Annex. 1) had been restored. THE petitioners pray that Annexure 1 and 3 be set aside.

(2.) ONE Shambhu, (now dead), who is being represented through his legal heirs respondent Nos. 4 to 10, had filed a suit for declaration and injunction before the Court of Assistance Collector Bundi in regard to Khasra Nos. 256 and 145. The suit was partly decreed by the Assistant Collector vide Annex. 1 in regard to Khasra No. 256 only. Both the parties appealed against the order of the Assistant Collector Annexure 1 before the Revenue Appellate Authority, the appeal was allowed vide Annex. 2 on 13. 3. 1981, the suit of Shambhu was dismissed in toto. The land in question is situated in village Astoli. It was alleged in the suit that the land was in cultivatory possession of Shambhu for the last many decades as a sub-tenant and, therefore, he had acquired the Khatedari rights. It is submitted that the petitioners had ejected Shambhu by force in Samvat year 2035 (1973 ). A prayer was made to declare him as Khatedar of the property in suit. The trial Court found that so far as Khasra No 256 is concerned, Shambhu the plaintiff, had been able to prove that he was sub-tenant of 4 Bighas 10 Biswas and, therefore, had acquired the right of Khatedari u/order 19 of the Rajasthan Tenancy Act. Relief in regard to other part of the suit was dismissed. It was the contention in alternative of the plaintiff deceased Shambhu that he had acquired the status of sub-tenant. It is the requirement of Sec. 19 (1) of the Tenancy Act that the sub-tenant who were recorded as sub-tenants in the Jamabandhi of Samvat year 2012 (1960) do acquire the status of Khatedari. If any such sub- tenant whose name had not been recorded as sub-tenant in the Jamabandhi of the year had a right to file an application before the Assistant Colle- ctor within two years of the commencement of the Rajasthan Tenancy Act. Admittedly, the plaintiff Shambhu had not filed any such application within two years and the present suit was filed in the year 1973 i. e. after the lapse of about 15 years. Shambhu had as a matter of fact relied on the Khasra Girdawari entries in his favour from Samvat year 2005 onwards. The relevant issues were framed in regard to po- ssession of the suit land to the effect whether Shambhu was in possession of the land as tenant and had become the Khatedar tenant or not etc. etc. It was held by the trial Court that the plaintiff Shambhu was in possession of the land bearing Khasra No. 256 measuring 4 bighas 10 biswas and, therefore, as such be declared as Khasra on this part of land only. Possession was also ordered to be restored to Shambhu. The appellate Court had observed that the suit was filed in the year 1973 on the ground that Shambhu had been dis-possessed from both parts of the land i. e. Khasra Nos. 256 and 145. Section 19 of the Rajasthan Tenancy Act provides that if the name of such person has been entered in the record of rights as a sub-tenant, then on the enforcement of the Rajasthan Tenancy Act, he has to be declared Khatedar and if no such entries are found in the Rajasthan Tenancy Act, a right has been given to such a person who files a suit within two years and get his right and declaration determined.

(3.) COUNSEL for the respondents on the other hand relies on the provisions of Bundi State Land Revenue Act, 1942 which stood repealed by the Rajasthan Act. It is stated that Sec. 70 provided that the entries in record of rights shall be presumed to be true until contrary is proved and Sec. 86 provides that annual village papers shall consist of a village field-map. Khasra and Jamabandi, and such others as the Revenue Minister may from time to time prescribe.