- (1.) THIS is an appeal against the appellate judgment of the learned Commissioner, Bikaner, dated 2. 3. 90, by which he has confirmed the order of the SDO Nohar dated 31. 12. 59 and dismissed the suit of the appellant for declaring him to be the Khatedar of the disputed land. We have heard the learned counsel for the parties at great length and examined the record also carefully. The judgment under appeal has been assailed on the ground that it failed to take notice of the fact that the appellant had cultivated the dispute land for a number of years and had therefore acquired Khatedari rights on 16. 10. 55, and any subsequent change of notification with regard to the commanded areas could not have taken away his right. Another point advanced is that the appellant had acquired Khatedari rights under the Bikaner Tenancy Act itself and as such the provisions of the Rajasthan Tenancy Act could not affect him. It has also been urged that his suit was not for declaring him as Khatedar on the basis of the subsistence of his tenancy on 15. 10. 55, the date of the enforcement of the Rajasthan Tenancy Act, but on the basis of his earlier rights under the earlier Act, It has been further contended that his possession could never be said to be a temporary one.
(2.) WE have examined the plaint in the case as the same was very pertinent for the decision of the points raised by the appellant. A perusal of Paras Nos. 3 and 4 thereof would go to show that the appellant wanted to be declared as Khatedar because of his being permanent tenant in possession of the disputed land on 15. 10. 55 and the State-respondent not coming to enter him Khatedar inspite of being served with a notice under sec. 80 CPC. He had stated in para 2 thereof that he obtained the land from the Jagirdar of the village for cultivation on a permanent basis. He did not, however, anywhere state or urge that he had been admitted by the Jagirdar thereon as a Khatedar and was therefore entitled to those rights. The appellant would therefore be deemed to have prayed to be declared as Khatedar under sec. 15 of the Rajasthan Tenancy Act, 1955, alone. The proviso to sub-sec. (1) thereof very clearly lays down that no Khatedari rights shall accrue thereunder to any tenant to whom land is or has been let out temporarily in Ganga Canal, Bhakra, Chambal or Jawai project area or any other area notified in this behalf by the State Government. That the land falls in this category is not disputed. The suit of the appellant could not therefore but be rejected, and it has been rightly done so by the learned lower court. As for the arguments that the disputed land has been alloted for cultivation by the Jagirdar, the learned Commissioner has held that there was no proof on record to establish the fact. The learned trial court had also come to the same conclusion when it said that on the evidence produced by the appellant it could not be found that the land had been alloted by the Jagirdar permanently. This is a finding of fact concurrently against the appellant behind which we sitting in this second appeal cannot go. Sec. 18 of the Bikaner State Tenancy Act 1945 also forbade any Jagirdar to grant occupancy rights to any person. Sec. 24 of that Act recognised only such a person to be a Khatedar as had right of cultivation and to the continuous possession of the land which he or his ancestors had declared and brought under cultivation. The learned counsel for the appellant has argued that his case was covered by this section. This was simply untenable. Neither was it alleged nor established that the appellant or his ancestors had cleared and brought under cultivation the disputed land and they had a right of the cultivation and to continuous possession thereon. Besides, it is also arguable whether the provisions of sec. 24, applied to lands situated in the Jagir village as well; or it applied only to the State lands. We do not want to decide this point when there has not been adduced any evidence as held by the learned two courts below, that the Jagirdar had granted the land to the appellant, nor has it been proved in any way that the appellant or his ancestors cleared and brought the land under cultivation. There is thus no force in this appeal, which is hereby rejected. .;