- (1.) THIS revision has been filed against the appellate order of the Additional Collector, Jaipur dated 27. 11. 58 confirming the original order of the Tehsildar Jaipur dated 18. 8. 58, whereby the auction sale of the mango trees belonging to the applicant and standing in his agricultural land was sanctioned in favour of the opposite party No. 2 in execution of a decree of arrears of rent passed in favour of the opposite party No. 1.
(2.) WE have heard the learned counsel for the parties and have examined the record as well. WE feel constrained to observe that both the lower courts grievously omitted to examine the law applicable to the case. At one stage of the proceedings the Tehsildar had himself realised that the manner in which the mango trees were being put to auction was unwarranted in law and he demanded a report from the Naib Tehsildar on the point. But strangely enough, on the Naib Tehsildar's pointing out that the proposed action was justified on the basis of the usage obtaining in that locality the Tehsildar without looking any further into the matter accepted the opinion expressed by the Naib Tehsildar. This attitude of evading proper appreciation of law and facts applicable to the case cannot be too severely criticised. For the guidance of the subordinate courts we may point out the law relevant to the case. To begin with we may refer to sec. 80 of the Rajasthan Tenancy Act which lays down that notwithstanding anything in this Act or any custom or contract to the contrary scattered trees standing op the holding of a Khatedar tenant at the commencement of this Act shall vest in such tenant; Provided that where such trees are the property of any other person at the commencement by the tenant in accordance with rules prescribed in that behalf. Sec, 82 further lays down that all trees standing on any holding shall be deemed to be attached to the land and no interest therein shall after the commencement of this Act be transferable independently of the land save and except by way of lease of the produce of such trees for a period of not exceeding one year at a time. These mandatory provisions of law leave no room to doubt that trees standing on any holding shall be attached to the land and no interest independently of the land can be transferred either by an act of the parties or in execution proceedings. One exception is recognised and that is by way of lease or the produce of such trees for a period of one year at a time. In other words the mango trees in the present case could not have been sold independently of the land. Sec. 174 further lays down that a decree for arrears of land may be executed, in addition to any other mode of execution permissible under the law, by ejectment of the tenant from his holding, provided, that no tenant shall be liable to ejectment unless recourse has been had to all other modes of execution and the decree has not been completely satisfied by any such mode within two years from the date of such decree. There is absolutely nothing on the record to show that any attempt was made to seek satisfaction of the decree in any mode of execution permissible under the law. On the contrary it appears that in the application for execution a request was made for issue of process against the ornaments, cattle, bullock cart etc. of the judgment debtor. But subsequently nothing was done to secure execution against any of these items and attention was confined only upon the mango trees standing in the agricultural land. The learned counsel appearing for the auction purchaser, the decree-holder, having failed to put in appearance despite notice has argued that as the (auction money has been deposited by his client, the only remedy available to the applicant is to bring a regular suit for cancellation of these proceedings. We find ourselves unable to subscribe to this view. The action taken by the executing court in ordering auction of the mango trees was ultra vires as being opposed to the express provisions of law and as such should be deemed to be a complete nullity in the eye of law. No interest can be deemed to have passed validly or legally in favour of the auction purchaser and as such the applicant can hardly be required to bring any suit for declaration or cancellation. The learned Additional Collector appears to have been influenced by the fact that as no substantial loss has occurred to anybody the main proceedings cannot be deemed to be illegal. The untenability of such a line of reasoning is clearly manifest. The extent of loss is no criterion for the judging of illegality or otherwise of a proceedings of a court of law. The essential point to be examined is as to whether the procedure followed finds any sanction in the eye of law or not. To this the only answer possible is in the negative for reasons pointed out above. The result is that there has been a grave and material illegality in the exercise of jurisdiction by the subordinate courts who have in fact assumed jurisdiction which was not vested in them by law. We therefore allow this revision, set aside the order of the lower courts and direct that the proceedings conducted by the Tehsildar regarding the attachment and sale of the mango trees in dispute shall stand quashed. It shall, however, be open to the decree-holder to take such steps as may be permissible to him under the law for satis-fication of the decree. .;