Decided on April 30,1960

MOTILAL Appellant
BHERI Respondents


- (1.)These two revisions against the one and the same decision of the learned Additional Collector, Kota, dated 28.4.59, have been heard together and shall be disposed of by this single judgment.
(2.)I have heard the learned counsel for the parties and examined the record as well. Circumstances leading to these revisions are that one Shri Krishna, a minor Khatedar, died in April 1954 leaving an agricultural holding of 40 bighas and 16 biswas of land in village Bamoolia and 39 Bighas and 19 biswas in village Takhu in Jagir of Shri Ap Ajitsinghji of Thikana Palayatha. The Thikana applied for mutation of the same in their name on grounds of escheat, Mst. Bheri also came forward as claimant in her capacity as the mother of the deceased. Moti also put forward his claim as the nearest reversioner as the brother of the deceaseds father. The Tehsildar after holding an enquiry decided in favour of Mst. Bheri, the mother. Both Thikana Palayatha and Motilal went up in appeal to the Additional Collector, Kota, who also confirmed the orders of the learned Tehsildar. The claim of Motilal was rejected for want of proof. The claim of Thikana was turned down because Mst. Bheri was found to be the heir of the deceased, and the plea of the Thikana that she had lost her rights to inherit as mother because of remarrying was rejected as being not warranted by the then prevalent law, Kota State Circular No. 3 Sigha Mal sec. 46(1), as well as Hindu Law and it was also held that she had not remarried but had only kept a "Mazrakha" (etj[kk).
(3.)In this revision, it has been urged on behalf of Motilal that a question of proprietory right was involved in the matter and so it should have been referred for decision to the Civil Court and not have been disposed of by the revenue courts. The argument was that under sec. 39 of Kota State Circular No. 3 Sigha Mal the rights of a Khatedar were heritable and transferable and as it was held by the Rajasthan High Court in 1954 R.L.W. 385 that this heritable and transferable right was found to vest in Jagirdars, Muafidars, Bapidars etc. and a holder of land in Mewar should possess heritable and transferable rights to claim a proprietary title, the mutation of Khatedari rights became a question of proprietary rights. Nothing could be more unreasonable than an argument like this. The rights of a Khatedar are so clearly a tenancy right, and could never be confused with the rights of a proprietor. In the very ruling cited by the learned counsel for Motilal referred to above it has been observed that Khatedars, etc. must be treated as tenants, and where the dispute is about their right it cannot be said to be a dispute of proprietary rights. The observations of the High Court were only that the minimum necessary before a holder of land can claim proprietary title was that he had a heritable and transferable right, and not that the having of such a right would make the holder a proprietor. The learned counsel has not also been able to show cause, even though pointed out and asked specifically as to why the concurrent findings of the court below against him that he had not been able to prove his title be accepted and refused to be interfered with in this revision. Nor any material irregularity or grave illegality has been pointed out or found to have been committed by the learned lower courts in the exercise of their jurisdiction. The claim of Motilal has therefore been rightly rejected.

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