BALU Vs. GULA

JUDGEMENT

(1.) This is a revision against the order of the Settlement Officer, Jaipur dated 22.5.58. We have heard the learned counsel for the parties and examined the record. Opposite parties Nos. 2, 3,4 and 5 having been remained absent despite notice it has been heard against them exparte. Put briefly the facts of the case are that the land under dispute was entered at the time of record operations in the name of the applicant and opposite parties Nos. 2,3,4 and 5. The entry of the Upbhogta being that in the name of the opposite party No. 1, the opposite party No 1 submitted an objection against this entry contending that the land had been granted to her in Khangi by her husband, the Jagirdar of the village in Svt. 1967 and had been in her possession ever since and she was getting the same cultivated through other persons because of her being a Pardanashin lady and so be entered as a khudkasht. The applicant and opposite parties Nos. 2, 3, 4 and 5 also filed an application that the land be entered not as subgrant of opposite party No. 1 but as Jagir of the Jagirdar himself. The learned Asstt. Settlement Officer Bairath after making necessary enquiries held that as the applicant and opposite parties Nos.2, 3, 4 and 5 had been in possession of the land only for the last 15 or 16 years, as the land was in sub -Jagir of the opposite party No. 1 for more than 40 years and as under sec. 5(25) of the Rajasthan Tenancy Act, land cultivated through others by a widow was also to be deemed as "Land cultivated personally, the disputed land be entered as "Khudkast" of opposite party No. 1. An appeal was preferred against this order to the Settlement Officer, Jaipur who relying on 1956 RRD 195 Udai Singh vs. Rampal, held that over the land let out by a widow the tenant could not get Parcha of Khatedari and dismissed the appeal. Hence this revision.

(2.) The applicant and his companions contended before the lower court that they had been admitted to the land as tenants directly by the Jagirdar and had been ever since cultivating it as a tenant and had nothing to do with Maji opposite party No. 1. This contention was not given due weight, it deserved, by the learned lower courts below and they were guided more by the fact that the land was Hawala (meaning thereby khangi) of the opposite party No. 1 Maji for about 40 years, having been granted to her by her husband as early as Svt. year 1967 and that she had been in possession thereof continuously ever since then. It has been admitted by the Kamdar of opposite party No.1 himself that the land had been under the cultivation of the applicant and his companions for about 15 or 16 years. It has been written plainly in the Ujardari submitted by the Maji herself that the land was not cultivated by herself at any time but she was getting it cultivated through tenants or others because of her observing Parda. Under the circumstances the fact of the intervention of the Jaipur State Tenancy Act, 1945 and the Jaipur State Grants -Land Tenures Act, 1949 should have been examined to decide whether the applicant and his companions were Khatedars of the land or the opposite party No. 1 was the "Khud -kast holder" of the land. In RRD 1957 -112 Udai Singh vs. Rampal, relied upon by the learned Settlement Officer Jaipur it was only when it was found by the evidence on the record that the land in dispute was being cultivated by the Jagirdar himself and it was after his death that his widow had given it to the tenants to cultivate it because of her son Udaisingh being a minor. There being a great discrepancy in the evidence produced by the tenants that they had acquired any right thereon that the land was held to be the Khudkast of the Jagirdar Udaisingh and it was held that the persons to whom the land had been let were only the sub -tenants and not entitled to receive settlement parcha. Thus, it would depend upon the facts of each case whether the land was the Khud kasht (as it would technically mean) of the Jagirdar or the Khatedari of a tenant. When Jaipur State Tenancy Act, 1945 and Jaipur State Grands -Lands Tenure Act, 1947 were passed vide sec. 8(1) (a) of the former Act read with sec. 8 of the latter Act a person who had been cultivating the land at the commencement of the Act otherwise than as a pattadar tenant or a sub -tenant became Khatedar thereof. It is not in dispute as it is evident from the statement of the Kamdar of opposite party No. 1 referred to above, that the land was at the commencement of this Act under the cultivation of the applicant and his companions. The only point to be decided is whether they had been cultivating it as sub -tenants or as tenants, it being nobodys case that they had been cultivating as pattedar tenant. In accordance with sec. 4(19) of the latter Act a sub -tenant could be only a person who held the land from the tenant thereof. The applicant and his companions would be sub -tenants if they held the land from a tenant of this land but would be tenants if they held the land not as such. Now leaving aside the question whether there was any sub -grant in favour of Maji opposite party No. 1 or not, Maji could be "Khud kasht holder" of this land only if her case was covered by sec. 152 of the latter Act. Under that section Khud kasht could be the land which was being cultivated "at the commencement of the Act" or "at any time thereafter" by Maji herself or by her hired labourers or if the land was declared "prior to the commencement of this Act or thereafter" on application or otherwise" as provided in the first schedule of the Act as her Khud kasht Manifestly this land under dispute had not been so declared as Khud kasht of opposite party No. 1. Equally clearly, the land was not being cultivated by the opposite party No. 1 in 1947 when the Act came into force, nor at any time thereafter. Sec. 137 of this Act did make a provision that if "the khud kasht holder" is a person belonging to one of the classes provided in sec. 22 of the Jaipur Tenancy Act, 1945, the land would not be deemed to have been let out. But it was only when such a person was the "khud kasht holder" when the provisions of this section would apply. Maji opposite party No. 1 should have been "khud kasht holder" before she could claim the benefit of this section. Merely because she had been getting the land cultivated by others because for her being a "pardanashin lady", she could not be entitled to claim "khudkasht rights" over the land. The provisions of the Rajasthan Tenancy Act, 1955 applied by the learned Asstt. Settlement Officer and perhaps indirectly relied upon by the learned Settlement Officer would come into application in a case like this only after the facts having been affected and acted upon by the provisions of Jaipur Acts referred to above. Simply because by proviso 5(25) of the Rajasthan Tenancy Act land "let out by a widow could be deemed to be land cultivated personally" the land under dispute could not be regarded as the khud kasht to the Maji opposite party No. 1, unless it was her khud -Kasht already when the Jaipur State Grants Land Tenures Act, 1947 came into force or she became khud kasht holder thereof under the provisions of Section 152 of it. For it is only under khud kasht land provided by sec 152 that under the provisions of sec. 154 of that Act khatedari would not accrue over the land. Otherwise the tenant cultivating the land would automatically get khatedari rights under the provisions of Sec. 8(1)(a) of Jaipur Tenancy Act, 1945 read with section 8 of the Jaipur State Grants -Land Tenures Act, 1947. In the instant case the applicant and his companions having been cultivating the land for long before the commencement of these Acts and having not been in any way debarred from acquiring khatedari rights, thereon they became khatedar of the land under dispute as soon as the Jaipur State Grants Land Tenures Act, 1947 came into force. Under Sect. 9 (2) of the Jaipur Tenancy Act., 1945 read with sec. 8 of the Jaipur State Grants Land Tenures Act, 1947 it is the khatedar of the land who is entitled to receive a formal parcha at the time of the settlement or revision thereof and not the Jagirdar or Sub - Jagirdar. The orders of the learned lower courts therefore ordering the land to be entered as khud kasht of the Maji opposite party No. 1 and preparing papers accordingly were not in accordance with the law. This action on their part would amount to illegality and material irregularity in the exercise of their jurisdiction. We, therefore, accept this revision, set aside the orders of both the courts below and order that the land under dispute be entered in the khatedari of the applicant and his companions.