GOPI Vs. HARINARAYAN

JUDGEMENT

(1.) THIS is a revision application under sec. 26 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act against an appellate decree of the Additional Commissioner, Jaipur, dated 6.9.1954 upholding the appellate decree of the Additional Collector, Jaipur, dated 27.5.1954 which in turn upheld the decree of the trial court dated 17.10.1951, whereby the applicant -plaintiffs suit, for recovery of arrears of rent was dismissed.

(2.) PUT briefly the facts of the case are that in June, 1948 the, applicant instituted two suits for recovery of arrears of rent in respect of the holding in dispute against defendants under sec. 122 of the Jaipur State -Grants Land Tenures Act, one suit relating to arrears for Svt. 2004 and the other Svt. 2005. The Tehsildar Jaipur who tried these suits consolidated them into one. The averments in the plaint were that the plaintiff is the State grantee - inami -of the land in dispute that the defendants were admitted to tenancy by the father of the plaintiff and that they are liable to pay rent amounting to Rs. 108/15/9 for each year, Svt. 2004 & S. 2005, calculated alt the area of the crop and the rate of rent therefore as given in the plaints.

(3.) NO serious efforts were made by the parties before me to challenge the finding of fact arrived at by the learned Additional Commissioner. Going through the evidence I find myself in agreement with the lower appellate court on the point that the plea of mortgage set up the opposite party does not stand proved. In fact it was conceived at a later stage. The earliest plea was about the ijara for II years at the rate of 8 Mds. of barley per year. This was subsequently discarded in favour of the mortgage -plea. The mellowness of both these pleas stands self -exposed and the defendants have no other status but that of the tenants of the plaintiff. It is also in evidence that no rent had hitherto been paid by the defendants and that these exists no decree or order of a court or a written compromise between the parties about the amount of rent. The applicants contention before me is that the rate of rent claimed in the plaint corresponds to that prevailing in the adjoining khalsa areas. I have no hesitation in holding that even if it were correct it cannot provide a basis for claiming arrears of rent. Sec. 132 of the Jaipur -Grants Land Tenures Act has been wrongly referred to by the applicant. The plaintiff had failed to establish that rent was payable either by an estimate or appraisement of the standing crop or by a division of the produce and unless this is done sec. 122 cannot be called into operation. A rent to be in arrear should be a rent which is fixed for payment. As laid down in sec. 120 of the Jaipur State Grants Land Tenures Act any instalment of rent not paid on or before the day when it falls due becomes an arrear on the day following the day it fell due. If no rent is fixed nor is any day fixed for payment it cannot be said that any rent has become due on any day.