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PETITIONER:

DEEPA

Vs.

RESPONDENT:

STATE OF RAJASTHAN & ORS.

DATE OF JUDGMENT15/12/1995

BENCH:

HANSARIA B.L. (J)

BENCH:

HANSARIA B.L. (J)

RAMASWAMY, K.

CITATION:

1996 SCC (1) 612 JT 1995 (9) 173

1995 SCALE (7)253

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

HANSARIA, J.

The appellant, who was once accepted by respondent No.

5-Ram Chandra (hereinafter the respondent), as a tenant when

proceeding under Rajasthan Tenancy Act, 1955 (Tenancy Act)

was initiated against him, has lost that right when the

respondent agitated the matter again under section 82 of the

Rajasthan Land Revenue Act, 1956. Shortly put, this is the

grievance of the appellant, and the same is well founded as

it would appear from what is being stated later.

2. In the first proceeding, the respondent had sought

eviction of the appellant by invoking section 177 of the

Tenancy Act on the ground that the latter had become liable

for ejectment because of using the land contrary to the

purpose for which it was leased. The respondent lost that

suit on the ground that the land being part of jagir he had

no locus stand to file the suit, as jagir stood abolished by

the force of the Rajasthan Land Reforms and Resumption of

Jagirs Act, 1952 (Jagir Act). That order was passed on

30.6.1963 and was confirmed even by the Board of Revenue on

19.1.1978.

3. In 1987 the respondent filed an application before the

Collector under section 82 of the Rajasthan Land Revenue Act

for making a reference to the Board of Revenue to recommend

making of entry in the record of rights relating to the

self-same land in favour of Idol Shri Charbhujaji - the

respondent being its Pujari. The appellant contended, inter

alia, that the matter could not be re-opened in view of the

earlier proceeding and, in any case, he having become a

khatedar tenant under provisions of the Tenancy Act, the

record of rights could not be corrected to show the

respondent as a khatedar tenant. The Board of Revenue did

not accept the plea of res judicata and having taken a view

that the appellant's right was not heritable and

transferable, granted prayer of the respondent. On the High

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Court being approached by the appellant, he did not get any

relief, inter alia, because he had not filed Khasra

Girdawari relating to Sambat 2012 (1957 A.D.) by which year

Tenancy Act had come into force. Hence this appeal under 136

of the Constitution.

4. Shri Sharma, appearing for the appellant, contended,

and rightly, that respondent himself having accepted the

appellant as tenant in the first proceeding, a stand

different from that could not be taken in the present

proceeding. He then urged that Khasra Girdawari, which has

now been put on record, clearly shows that the name of the

appellant had been recorded as cultivator by Sambat 2012,

because of which the land could not be regarded as khudkasht

of the jagirdar which would make section 10 of the Jagirs

Act inoperative, and so, the respondent's name could not be

recorded as khatedar tenant. As to this submission, the

learned counsel for this respondent submitted that though

the land was shown in the Khasra Girdawari under appellant's

cultivation, that was not as a tenant but as an employee of

the respondent. This stand is untenable because from the

impugned judgment of the Board of Revenue in the present

proceeding it appears that the case of this respondent was

that Deepa's father had been given the land for cultivation

on "Panti Basis", that is, on share basis, which would

clearly show that the land was tenanted to Deepa's father

and in lieu of cash he was to pay in kind.

5. Shri Sharma's further contention is that the view taken

by the authorities is not correct also because of the

provisions in Chapter III_A of the Tenancy Act, under which

even a sub-tenant of khudkasht land becomes a khatedar

tenant on the required procedure being followed, which must

be deemed to have been satisfied because of what has been

recorded in the Khasra Girdawari. Now, if a person becomes a

khatedar tenant, then by the force of section 9 of the

Jagirs Act, his right becomes heritable and fully

transferable; and so, the contrary view taken by the

authorities is not correct. Still another weapon in the

armoury of Shri Sharma is that under section 13 of the

Marwar Tenancy Act, 1949, (regarding the applicability of

which Shri Medh has some objection) the interest of a tenant

is heritable but is not transferable otherwise than in

accordance with the provisions of that Act.

6. We are satisfied (even if what has been stated in

section 13 of the Marwar Tenancy Act is kept out of

consideration) that it is the appellant who has to be

accepted as a tenant and a khatedar tenant at that; and so,

the revenue reorders could not have been corrected to snow

the respondent as the khatedar tenant.

7. The appeal is, therefore, allowed with cost by

declaring the appellant as the khatedar tenant of the land

in question.