KISTOORA Vs. KISTOOR CHAND
LAWS(RAJ)-1967-7-1
HIGH COURT OF RAJASTHAN
Decided on July 11,1967

KISTOORA Appellant
VERSUS
KISTOOR CHAND Respondents

JUDGEMENT

- (1.) THIS second appeal has been filed against the order of the Revenue Appellate Authority, Jaipur dated the 4th of June, 1963 whereby he accepted the appeal of the respondent against the judgment and decree of the Assistant Collector, Kishan-garh dated the 1st of June, 1962 in a suit under sec. 175 of the Rajasthan Tenancy Act and decreeing the suit of the plaintiff-respondent directed that defendants-appellants be ejected from the suit land and plaintiff be put in possession thereof. The main contention of the learned counsel for the appellants is that Kistoora and Likhma had obtained khatedari rights under sec. 19 and therefore the right of sale had accrued to them and that Kishtoorchand respondent has no right and title left in the suit land and cannot, therefore maintain the suit. The trial Court framed 7 issues and after recording evidence came to the conclusion that the defendants had acquired Khatedari rights under sec. 19 (l) (a) of the Rajasthan Tenancy Act and were, therefore, not liable for ejectment. As a result, therefore, he rejected the suit. Having felt aggrieved by this order, the plaintiff filed an appeal before the Revenue Appellate Authority who as stated above, has reversed the finding of the trial Court. Hence this second appeal.
(2.) THE case of the appellants is based on a lease deed (Ex. P1) which was executed by them in favour of the plaintiff on the 23rd of October, 1950. This document was produced by the plaintiff himself and goes to show that the suit land had been let out to the defendants by the plaintiff in the year 1950. THE creation of subtenancy in favour of the defendants is, thus, established. THE next document relied upon by the defendants is the settlement parcha (Ex D6) which was issued in favour of Kishtoora on the 5th of August, 1955. It describes Kishtoora a sub-tenant and the State as the land owner. It is operative for Smt. 2010 to 2019. It is the contention of the learned counsel for the defendant that having stood recorded as a tenant in the settlement record on 5. 8. 55, the defendant is entitled to the benefit of sec. 19 (l) (a) and, therefore, he automatically became the khatedar of the disputed land. It is argued that the learned Revenue Appellate Authority has fallen into an error in examining the case of the defendant in the context of sec. 15 of the Rajasthan Tenancy Act. As a matter of fact, the defendant had never claimed any rights under sec. 15 of the Rajasthan Tenancy Act. It is further contended that the learned Revenue Appellate Authority has mis-applied the law relating to sec. 19 with regard to the settlement parcha (Ex. D. 6), in holding that the defendant had failed to produce the copy of the annual register for Smt. 2012 which alone could be relied upon to show that the defendant was entered as a sub-tenant in the Annual Register then current. THE learned counsel for the respondent supporting the finding of the Revenue Appellate Authority has, also, reiterated this argument. We agree with the learned counsel for the appellants that the first appellate Court has fallen into an error in ignoring the impact of the settlement parcha. We are not prepared to accept the contention of the learned counsel for the respondent that the record of right prepared on 5. 8. 55 should not be deemed as an Annual Register for the purposes of sec. 19 (l) (a) of the Rajasthan Tenancy Act. THE Annual Registers have been defined in sec. 132 of the Rajasthan Land Revenue Act which reads as follows : "the land Records Officer shall maintain the record of rights and for that purpose shall, annually or at such longer intervals as the State Government may prescribe, cause to be prepared a set or an amended set, as the case may be, of the registers enumerated in sec. 144 and 120 and the Registers so prepared shall be called the annual registers. " Sec. 114 provides that : "the record of rights shall be prepared in such manner as may be prescribed by the State Government and shall consist of the following, namely : (a) a khewat, that is to say, a register of all estate holders in the area under survey and record operations or under record operations, specifying the nature and extent of the interest of each and his co-sharers, mortgagees in possession and persons holding land from otherwise than as tenants, if any; (b) a khatauni, that is to say, a register of all persons cultivating or otherwise holding or occupying land in such area, specifying the particulars required by sec. 121; (c) a register of all persons holding land in such area free of rent of revenues; and (d) such other registers as may be prescribed. " Sec. 120 provides that : "the Land Record Officer shall prepare in the prescribed form a list of all villages in the area under survey and record operations or under record operations, showing therein in the prescribed manners : (a) the area liable to fluvial action, (b) the area having precarious cultivation, (c) the revenue or rent assessed thereon and the person through whom it is payable, and (d) the areas of which the revenue or rent has, either wholly or in part, been released, remitted, redeemed, assigned or compounded specifying the authority thereof and the conditions thereof. " In this case Ex. D. 6 (Parcha chakbandi Settlement Department) was prepared on 5. 8. 55 and indicates that Kistoor Chand was the 'sikmi' tenant of the land in question on the aforesaid date. Sec. 126 of the Rajasthan Land Revenue Act lays down that until a new map and a field book are prepared under sec. 112 or until a new record of rights is framed under sec. 114, the existing map, field book and record of rights, if any, shall be the map, field book and record of rights of the area concerned. In view of this provision of law, it may safely be held that the record of rights prepared on 5. 2. 55 shall hold valid until a new record of rights is framed under sec. 114 or unless the same has been amended or modified in accordance with the law. THE onus therefore, to establish that Ex. D 6 should not be deemed to be the record of rights as current at the commencement of the Rajasthan Tenancy Act, falls on the person who questions its validity. THE cumulative effect of sec. 126 and 132 obviously is that the record of rights prepared by the Settlement Department in August, 1955 viz, 2 months before the commencement of the Rajasthan Tenancy Act, should prevail unless it can be shown that in the mean time the same had been modified in accordance with the law. Under sec. 132, it is the duty of the Land Records Officer to maintain the record of rights and for that purpose annually or at such longer intervals as the State Government may prescribe to cause to be prepared a set or an amended set as the case may be, of the Registers enumerated in sec. 114 and 120. Naturally, this provision has been made to incorporate the changes which may occur during the interval, but if no change has occurred, it is obvious that the record originally prepared in accordance with the law, will prevail and must be deemed to be the annual registers, as defined under sec. 132 of the Rajasthan Land Revenue Act. We have, therefore, no hesitation on holding that the learned Revenue Appellate Authority manifestly fell into an error in rejecting the parcha settlement chakbandi brought on record to show that Kistoora was recorded as a 'sikmi' in the annual registers current at the commencement of the Rajasthan Tenancy Act. In this view of the matter, was are of the opinion that sec. 19 (l) (a) is attracted in this case and Kishtoora who is recorded as a sub-tenant therein cannot be deprived of the rights conferred on him by law. The result of the foregoing discussion is that we accept this appeal, set aside the order of the Revenue Appellate Authority and dismiss the suit. The counsel for the appellants has filed an application under Order 41, R. 27 C. P. C. for taking into consideration additional evidence. We do not think it is necessary to go into that and the application is hereby rejected. .;


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