RAJIA Vs. GURUBUX

JUDGEMENT

(1.) This appeal has been filed against the appellate decision of the Additional Commissioner, Bikaner dated 7.8.58, reversing the original decision of the S.D.O. Hanumangarh dated 23.12.57 in a case of ejectment under sec. 180(b) of the Rajas -than Tenancy Act, 1955.

(2.) We have heard the learned counsel for the parties and have examined the record as well. The respondent sought ejectment of the appellants on the ground that they were year to year Gair Khatedar tenants of the holding in dispute and were, therefore, liable to ejectment. The appellants contested the claim on the ground that they were not holding from year to year but that they had been in possession since a number of years and that originally the father of the appellants was admitted to the tenancy which eventually devolved upon them. The trial court came to the conclusion that the appellants had been cultivating the land in dispute for the last 20 years on a nominal rent of annas 4 per Bigha and dismissed the suit. The learned Additional Commissioner in appeal reversed this decision on the ground that the land being within the Bhakra Project no Khatedari rights can accrue in it, and as the appellants were not recorded as occupancy tenants they should be deemed to be holding from year to year.

(3.) Evidently the learned Additional Commissioner has based his decision on fallacious premises A reference to sec. 180(b) of the Rajasthan Tenancy Act will show that a tenant of Khudkasht or a Ghair Khatedar tenant or a sub -tenant is liable to ejectment on the ground that he is holding from year to year or under a lease or sub -lease granted after the commencement of the Act under sec. 45 of which the period has expired or will expire before the end of the current agricultural year. In the present case ejectment was claimed on the ground that the Gair Khatedar tenant was holding from year to year. The allegation that a tenancy is being held from year to year is to be proved by evidence as it is purely a question of fact. The learned Additional Commissioner appears to have been influenced by the consideration that as the appellants had failed to establish themselves to be the Khatedar tenants they should be deemed to be Gair Khatedar tenants holding from year to year. This is merely a half truth. If a person fails to establish himself as a Khatedar tenant he may be held as a Gair Khatedar tenant or a sub -tenant for the matter of that. But to hold him as being a tenant from year to year there must be some additional evidence on the point besides that which shows him to be a Gair Khatedar tenant. This point was completely ignored by the learned Additional Commissioner. A reference was made by him to the provisions of s.106 of the Transfer of Property Act. It has no relevancy to the present case for it simply lays down that a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year and for other purposes from month to month. No lease has been produced in the case. Nor does this case hinge on the interpretation of any lease. It has to be determined with reference to the evidence led in the case by the parties. The respondent himself has admitted that the land in dispute was originally cultivated by the appellants father and after him by the appellants themselves. The period during which the appellants have been held to be in possession by the trial court was also specifically admitted by him. It was incumbent upon the respondent to prove that at the time of the initial commencement of the tenancy the tenant was admitted for a period of one year only and that thereafter there has been a renewal from year to year. Nothing of the sort has been proved to exist in the case. The finding of the lower appellate court, therefore, is clearly against the weight of the evidence on record and de -servers to be set aside. We, therefore, allow this appeal, set aside the order of the lower appellate court and restore that of the trial court whereby the respondents application for ejectment was rejected.