KANHIYA Vs. BANSI
LAWS(RAJ)-1952-6-9
HIGH COURT OF RAJASTHAN
Decided on June 28,1952

KANHIYA Appellant
VERSUS
BANSI Respondents

JUDGEMENT

H.D. Ujjwal - (1.)- These two applications have been filed by Harji and Kanhiya under sec. 10 (2) of the Rajasthan (Protection of Tenants) Ordinance, No. IX of 1949, against an order of the S.D.O. Rajgarh dated 30.11.1950. Both Harji and Kanhiya who are brothers presented applications under sec. 7 of the Ordinance before the S.D.O. and as the facts of both the applications were the same the applications were consolidated and dealt with as a single case by the S.D.O. who dismissed them on the ground that the non-applicants had come into possession of the holdings after due enquiry under the orders of the then Revenue Minister of Alwar State, and the applicants had given up possession of the holdings in dispute after due execution of Dakhalnama in favour of non-applicants and the applicants were estopped from going against it.
(2.)THE revision application presented by Kanhiya had been decided by this Board on 30.6.1951 but on a review application having been filed by Bansi and others that order of the Board was set aside and both the revision application of Harji and Kanhiya have been heard together.
The facts of the case are that Harji and Kanhiya were the original cultivators, of this land. They cultivated it up to Smt. 2002. In Smt. 2003 when the estate was under the management of the Court of Wards the Kamdar of the Court of Wards ejected the applicants Harji and Kanhiya and gave the land to the non-applicants Bansi and Bhagirath, Harji and Kanhiya thereupon filed a suit which went up to Sri Rajendra shashan and the then His Highness of Alwar ordered on 3.1.1947 for restoration of possession to the applicants and passed strong strictures upon the conduct; of the officers of the Court of Wards for keeping Harji and Kanhiya out of possession of this land against the express wishes of the widow of late Tkakur.

Inspite of this order of the sovereign Ruler of the then Alwar State the Court of Wards officers gave a potto to Harji and Kanhiya for one year only. At the expiry of this period of one year the Court of Wards officers submitted a report to the Revenue Minister and sought his sanction to auction the land at the expiry of the period of the patta. The Revenue Minister sanctioned the auction. Thereupon the land under dispute was auctioned and as the non-applicants Bansi and Bhagirath's bid was highest the land was given to them and the applicants were dispossessed on 11.9.1948 & Dakhalnama exhibit D 1 was executed by Harji and Kanhiya, Harji & Kanhiya thereupon again represented to the Revenue Minister that they had been dispossessed in contravention of the orders of His Highness of Alwar. The Revenue Minister thereupon cancelled his order for auction of the land and ordered that Harji and Kanhiya may be reinstated upon the land and they may be granted a patta for a period of at least to years. This order was passed on 21.3.1949. Before this order could be executed the Rajasthan was formed and the Rajasthan (Protection of Tenants) Ordinance, 1949, was promulgated. The applicants, therefore, applied under sec. 7 of the Ordinance for reinstatement with the result as stated above.

The main point for determination in these applications are; who are to be considered as the lawful tenants of this land under the provisions of the ordinance and whether the Dokhalnama executed by Harji on 11.9.1948 amounted to voluntary relinquishment of the land under sec. 7 (5) of the Ordinance and whether the applicants were estopped from claiming possession of the land in dispute.

It has been further argued on behalf of Bansi and Bhagirath that they had been admitted as tenants in the year 1949 and since by the amendment of the ordinance even tenants who had been in possession of the land after 1.4.1948 are protected from ejectment they could not be ejected from this land.

We have given careful consideration to this argument of the counsel. We are of the opinion that a tenant who was in occupation of his holding on 1.4.1948 and had been ejected therefrom or dispossessed thereof (a) before the commencement of this Ordinance otherwise than by process of law or (b) after the commencement of this Ordinance in contravention of the provisions thereof, was entitled to reinstatement even if any other person bad been introduced as a tenant by the landlord after ejectment of the previous tenants who held this land on 1.4.1948. If tenants who had been admitted after ejectment of the tenants who held the land on 1.4.1948 were to be given protection the original purpose of the Ordinance would be defeated. It was just to prevent the landlords from ejecting the previous tenants and introducing new tenants after 1.4.1948 that this ordinance was passed. Such tenants who had been introduced by the land lords after the ejectment or dispossession of the tenants who held the land on 1.4.1948 cannot be considered to be lawful tenants and their rights of remaining in possession did not supersede the right of the tenant in possession on 1-4-1948. It there was no tenant in possession of the land on 1.4.1948 or he had voluntarily relinquished the land or he had been ejected or dispossessed according to the provisions of the Ordinance then the subsequent tenants although they were not in possession on 1.4.1948 and had been admitted even after that would be entitled to be reinstated according to the amendment now made in the Ordinance.

Therefore, if Harji and Kanhiya were lawful tenants on 1.4.1948 and had been dispossessed in contravention of the provisions of the Ordinance they would not be debarred from seeking reinstatement on the ground that the Bansi and Bhagirath had been admitted as tenants in 1949.

We have, therefore, to see whether the dispossession of Harji and Kanhiya on 11.9.1948 could be considered to be in due process of law or by voluntary relinquishment.

(3.)FROM the facts stated above it is clear that the Revenue Minister had sanctioned the auction and it was as a result of the auction that Bansi and Bhagirath were given fresh pattas of the land and as a result of the grant of patta to Bhagirath and Bansi, Harji and Kanhiya were dispossessed. As the order passed by the Revenue Minister to auction the land was cancelled by him the former order became null and void and any act done in compliance thereof could not be said to have been done under valid authority and any thing done in compliance thereof could be set aside and the parties affected thereby relegated to their previous position. Even if any party had been given possession under such an order the opposite party was entitled to restoration under rule 174 of the rules framed under the Revenue Courts Act 1951 and sec. 144 of the C.P.C. On cancellation of the previous order the man who came into possession in compliance of the previous order acquired no rights. Therefore Harji and Kanhiya were entitled to restoration of possession over the land in dispute on cancellation of the former order by the Revenue Minister.
Such dispossession obviously could not be considered to be a voluntary relinquishment either when the Revenue Minister had ordered auction of the land and the land had been auctioned and patta given to Bansi and Bhagirath the applicants Harji and Kanhiya could not resist possession bring given to them. They, however, did not acquiesce and represented the matter to the Revenue Minister who on the representation cancelled the former order. Harji and Kanhiya further filed a criminal case also regarding their dispossession. Dispossession, therefore was not voluntary relinquishment but under the garb of an orders of the State authorities which have been later cancelled.

Such dispossession even though accompanied by a Dakhalnama written by Harji could not estop him and his brother Kanhiya from claiming the land to which they were rightly entitled.

We, therefore, hold that the S.D.O had wrongly rejected the applications presented by Harji and Kanhiya under sec. 7 of the Ordinance and set aside his order and order that Harji and Kanhiya be reinstated upon the land in dispute with immediate effect.



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