HIGH COURT OF RAJASTHAN
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(1.)This is the plaintiffs second appeal in a suit under sec. 183 of the Rajasthan Tenancy Act which was concurrently dismissed by both the lower courts. The learned counsel for the appellant in full consciousness of the provisions of sec. 100 C.P.C. read with sec. 224 of the Rajasthan Tenancy Act confined his argument only to the ground,namely, that the decision of both the courts are not only contrary to law but they failed to determine a material issue of law involved in this proceeding. In order to appreciate the force of this argument a brief narration of facts leading to this second appeal appears to be necessary.
(2.)The plaintiff in his capacity as a Pujari of the temple of Gopinathji to which the land in dispute was given as Bhog Muafi by Thikana Bisau filed this suit against the respondents with the averment that they were neither admitted by him to cultivate the land as tenants nor were they the legal heirs of the deceased Seja who was the tenant of this land and who died without any hen to succeed him in accordance with provisions of law in this behalf as contained in the Jaipur State Tenancy Act. It was also stated that the deceased left only a daughter, namely, Mst. Gafoori who was not an heir for purposes of succeeding a khatedar and the respondent Hussaina who was her husband and Nura the other respondent a distant relation occupied the land without any lawful title. It was prayed that the defendants be therefore ejected as trespassers. Nura one of the defendants pleaded that he had been cultivating the land jointly with the deceased khatedar in his life time since long and was therefore not a trespasser. Hussaina the other defendant pleaded that he and his wife Mst. Gafoori, the daughter of the deceased khatedar had been living jointly with him and had also shared in the cultivation during his life time. A common plea was also taken that the deceased had been paying rent to the Thikana Bisau and that the appellant had no locus standi to file this suit. The trial court framed certain issues and examined the evidence produced by the parties. It found that Seja the deceased khatedar had been cultivating this land since 1944 and paying rent to Thikana Bisau. After the resumption of this Thikana the rent of this land was realised by the plaintiff as manager and Pujari of the temple of Gopinathji. This land had been dedicated by Thikana Bisau. It was also by a process of reasoning held that Seja was the tenant of the plaintiff. As regards Hura, one of the defendants the trial court found that he was the deceaseds nephew and was his co -sharer in cultivation. In the absence of any evidence to the effect as to how long since Nura had been cultivating this land alongwith Seja the only documentary evidence relied upon by the trial court was Chosala Khasra girdawari in which the name of Nura was entered in the column of a tenant from Svt. 2010 onwards of one years standing in respect of 1/4th share in the land. Relying on these entries the trial court held that Nura was the tenant. As regards Hussaina, the trial court observed that after the death of Seja his daughter Mst. Gafoori, wife of Hussaina succeeded the deceased khatedar and that she with the help of her husband continued to cultivate the land. For this reason Hussaina through his wife Gafoori was also held to be a tenant. In the result the suit was dismissed. In appeal the learned Addl. Commissioner did not examine the status or Nura but confined himself only to the fact whether khatedari rights vested in Mst. Gafoori after the death of her father and whether the present defendants Who according to Mst. Gafoori has been cultivating on her behalf could be held as trespasser. Its finding was that Mst. Gafoori after the death of her father succeeded his khatedari rights and the present respondents had been cultivating the land on her behalf could not be held as trespasser. Accordingly the decision given by the trial court was maintained and the appeal
(3.)The first important point which calls for determination is whether Mst. Gafoori or Nura could be regarded as lawful heirs of the deceased khatedar. Seja admittedly died before the coming into force of the Rajasthan Tenancy Act and succession to him shall be governed according to the provisions of sec. 17 of the Jaipur State Tenancy Act. A married daughter of a deceased khatedar has not been recognised under it as an heir to succeed a deceased male tenant. This being so even if Mst. Gafoori was the only surviving child of tin -deceased she could not succeed her father as a tenant and therefore it follows that her husband also docs not derive any title to cultivate this land unless so admitted by operation of law or a contract between him and the plaintiff. As regards Nura he himself stated that he was not the deceaseds real brothers son but that his grand father and father of Seja were real brothers. He also does not come in any of the categories of heirs mentioned in section 17 01 the Jaipur State Tenancy Act. His contention that he had been cultivating with Seja since long as his co -sharer was also examined. In the fust place there is no direct evidence as to when and under what circumstances this man became as co -sharer in cultivation with the deceased Khatedar. In the second place even if it be accepted for a moment that he shared in the cultivation of this land with the dec cased Khatedar there is no evidence to support the tact that the plaintiff or even lor the matter of that, Thikana Bisau ever accepted him as a co -tenant. The mere fact that after the death of Seja the name of Nura about:blank 7/19/2016 Page 2 of 2 was entered in the Khasra Girdawari as a tenant of 1/4th share in the land docs not prove any tenancy in his favour. The entries in Khasra Girdawari as held by us in several cases are at the most relevant piece of evidence and unless proved by independent corroborative evidences do not carry any probative value. The learned counsel for the respondents contention that the plaintiff accepted rent of this land from, the defendants after the death of the deceased Khatedar and that therefore a tenancy had been created in favour of the defendant by the conduct of the plaintiff -appellant is also bound to fail for the simple reason that mere acceptance of rent from a third person does not create any tenancy in his favour. Both the courts below completely misunderstood the provisions of law referred to above and their decision is clearly contrary to it. In this connection we might also point out that the provisions relating to succession of tenancy as contained in the Rajasthan Tenancy Act cannot be applied to the present case because the deceased had died prior to the coming into force of this Act. Succession to tenancy right could not be held 111 abeyance nor deemed to have commenced under the Rajasthan Tenancy Act. Accordingly we allow this appeal, set aside the decision of the lower courts and direct that the plaintiffs suit for ejectment of the defendants be decreed. about:blank 7/19/2016
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