DALUDAN Vs. SUKHA

JUDGEMENT

(1.) This revision wrongly styled as an appeal has been filed against an appellate decision of the Additional Commissioner, Bikaner dated 23.2.59. The facts of the case are not much in dispute. The only point for determination is whether in view of the proviso of sec. 46 of the Rajasthan Tenancy Act Mst. Indra, one of the applicants, who held the Khatedari rights jointly with the other applicant, namely Dalu Dan, could claim exemption from the aforesaid provision of law. The lower appellate court somehow came to the conclusion that the opposite party, who was a sub -tenant of the joint Khata held by the applicants, could acquire Khatedari rights only to the extent of half the share of Dalu Dan and could not acquire similar rights in respect of the other half share he|d by Mst. Indra. This finding, in our opinion, is clearly wrong. Proviso of sec. 46 clearly lays down that where a holding is held jointly by more persons than one the provisions of this section shall not apply unless all such persons are of one or more of the descriptions specified therein. This clearly means that if a Khata is jointly held by persons out of whom any one may be of the categories mentioned in sec. 46, the sub -tenant shall not be able to acquire the Khatedari rights in respect of the whole khata so held jointly. In the present case, admittedly, the Khatedari is held jointly by Mst. Indra and Dalu Dan and therefore, the provisions of proviso to sec. 46 are attracted. The learned Additional Commissioner, in our opinion, misunderstood these provisions of law and his decision, cannot therefore, be maintained. The revision application shall therefore, be dismissed on the ground that Mst. Indra could not claimed exemption, but the application of Sukha, the opposite party, shall be allowed in full with the result that he is entitled to get Khatedari rights on the entire holding on payment of such compensation as may be determined by the courts below according to law.