BADALIYA Vs. RAMBAI
LAWS(RAJ)-1952-5-18
HIGH COURT OF RAJASTHAN
Decided on May 13,1952

BADALIYA Appellant
VERSUS
RAMBAI Respondents

JUDGEMENT

H.D. Ujjwal - (1.)THIS is a reference by the First Bench presided over by Shri H. D. Ujjwal and the point for reference is : - "Whether possession of the predecessor in interest of a tenant should be considered to be the possession of the successor and heir for purposes of sec. 7 of the Rajasthan (Protection of Tenants) Ordinance, 1949.
(2.)IT has been argued before us that under the General Civil Law a plaintiff is always taken to include his successors in interest and the same is laid down in sec. 206 of the Succession Act. Therefore on analogy of the general law a tenant must be held to include his successor in interest under the Ordinance. IT is further urged that if a tenant who was in possession on 1.4.1948 dies and is succeeded by his son if the possession of the father is not considered to be that of his son he would not be able to claim reinstatement under the Ordinance and it would lead to ejectment of the successors of tenants who are equally entitled to protection.
The other party has contended that although in the case of sons or recognised successors the proposition of law enunciated above would be unexceptionable but in case where succession is disputed and mutation proceedings have not finally been concluded a person who claims to be a successor should not be given possession of the land under the provisions of the Ordinance till succession has been finally decided and the status quo should be maintained.

In this case we find that the application for mutation had been made and the order for mutation was also passed by the Tehsildar. But an appeal against that order is said to be pending before the Collector. The proceedings for mutation are thus going on in the lower competent courts. The Board would not, therefore, like to express any opinion about the right of succession of either party for that might prejudice the decision of the lower courts in the mutation proceedings.

Therefore, while answering the reference in affirmative we would like to observe that the successor in interest can claim the right of reinstatement under the Ordinance only when succession has been finally settled.

With these observations we would send the case back to the trying bench.



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