Decided on January 19,1967

HARI SINGH Appellant
BHAWANI RAM Respondents


- (1.)THIS is Harisingh and others defendant appellant's second appeal against the judgment and decree of the Revenue Appellate Authority, Kota dated 18. 3. 1964.
(2.)BRIEFLY the facts of the case are that Bhawaniram and Ram Prasad plaintiff respondents filed a suit that they were the tenants of suit lands consisting of 26 bighas in village Nongia, Tehsil Bharatpur for a long time from Smt. 2006 to Smt. 2012. They were wrongly dispossessed under proceedings u/s. 145 Cr. P. C. and the possession was given to the defendant appellants, the owners of the land. The possession should be restored to them and they should be declared the tenants of the suit land. The defendant appellants denied their claim. The trial Court decreed the plaintiffs' suit and this decree was affirmed in the first appeal, filed by the defendant appellants, by the Revenue Appellate Authority Kota, hence this second appeal.
The only contention of the counsel for the defendant appellant was that the two subordinate Courts in decreeing the plaintiff respondent's suit clearly committed an error of law by placing reliance on the entries of the khasra girdawari. In fact the plaintiff respondents failed to prove their tenancy. The defendant appellants were rightly put into possession of the suit land in the proceedings under sec. 145 of the Cr. P. C.

The counsel for the respondents' reply was that they proved their tenancy on the basis of the entries of khasra girdawari from Smt. 2006 to Smt. 2016. Thereafter in the absence of surrender the possession over the suit land is deemed to have continued and the criminal Court was clearly in error in giving possession to the defendant appellants.

We have considered the arguments advanced from both sides and perused the record. It is an admitted fact that the defendant appellants are the land-holders of the suit land and they have been put into possession by a Criminal Court in the proceedings u/s 145 Cr. P. C. It is the plaintiff respondent's claim that they be declared as tenants of the suit land and possession be restored to them. The burden of proving tenancy therefore rested heavily on the plaintiff respondents. In discharge of this burden the plaintiffs have produced only certain entries of the khasra girdawari. This record of khasra girdawari has been held time without numbers by the Board of Revenue having no characteristic of the record of rights. The entries in this record are made by a Patwari during his crop inspection relating to the nature of crops standing, its extent and formerly the person who was found to be in possession of the land at the time of the girdawari operations was also entered. This entry is therefore non substitute for a contract of tenancy which must be made either expressly or impliedly from the conduct of the parties between the landlord and the tenant.

The counsel for the plaintiff respondent has only relied upon the entries of the gasht girdawari. There is no express contract of tenancy between the defendant appellant as land-holder on one side and the plaintiff respondents as tenants on the other. There is no evidence on record to show that the defendant appellants admitted the plaintiff respondents as tenants and by their conduct such as by issuing rent receipts and further treating them as tenants. The plaintiff respondents have tailed to show that they hold rent-receipts duly signed by the land-holder or his agent. It is clear from the record that even the entries in the gasht girdawari from Smt. 2006 to Smt. 2010 were disputed between the parties and prolonged litigation took place. This clearly shows that the plaintiff respondents who alleged tenancy were either in wrongful possession of the land or got these entries in the gasht girdawari fraudulently made through the agency of the revenue Patwari. Both the subordinate Courts construing tenancy merely on the basis of the entries of the gasht girdawari led themselves into a manifest error of law by holding that the plaintiff respondent were able to prove their tenancy right to the satisfaction of the Court. This decision of the two subordinate Courts on "this fact of tenancy therefore was clearly contrary to the law. The plaintiff respondents have clearly failed to prove their tenancy and their suit ought to have been rejected.

We, therefore, accept this second appeal of the appellant, set aside the judgment and decree of both the subordinate Courts and dismiss the plaintiff-respondents suit. .

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