- (1.) THIS appeal from an order and judgment of the SDO Bikaner (North) dated 21.2.61 had been filed by Purkha whose application under sec. 136 of the Land Revenue Act was dismissed thereby. The facts of this case are simple, and briefly stated they are as follows: The appellant Purkha filed an application before the learned S.D.O. Bikaner North alleging that he was the original tenant of Khasra No. 573 and had cultivated it in St. years 2012 and 2013. But in St. years 2014 and 15 in the Girdawari the name of the respondent was wrongly entered in collusion with the Patwari. He therefore prayed that entry be corrected and his name entered in the records in place of the respondent. The respondent contested the application on the ground that he was cultivator of the land in dispute and had been cultivating it for a long time and the entries disputed by the appellant were correctly made by the Patwari. He therefore prayed for the dismissal of the application.
(2.) ON the above pleadings the learned SDO framed the necessary issue i.e. whether the land in dispute i. e. Khasra No. 573 was in the appellant's possession in St. years 2014 and 2015 and the entries in the Girdawari were wrongly made. After recording evidence the conclusion at which the trial court arrived was that the entries were correctly made and that the respondent was tenant of the land in dispute and he accordingly dismissed the application. Now in this appeal it is urged before us that the above decision of the trial court is against the weight of the evidence and is erroneous. It has been urged that the trial court did not appreciate the oral evidence produced by the appellant and also failed to appreciate the significance of the entries standing in the appellant's favour in St. year 2012 and 2013. It has also been contended that the trial court was in error in taking into consideration a statement said to have been made by the appellant's father Shivji in certain proceedings before the panchayat where Shivji had appeared as witness on behalf of the appellant for the reason that Shivji was never confronted with the statement which he was alleged to have made. Now before we discuss the judgment of the trial court we would like to briefly examine as to what actually is the purpose and function of Girdawari or Khasra teep and the duties and the role of the patwari in connection therewith as well as those of the lambardar and the Sarpanch who accompanied the Patwari. In this connection we must refer to chapter 4 of the Rajasthan Land Revenue (Land Record) Rules or 1957 for the preparation of quadrennial and annual records. The rules in regard to Khasra teep begin from R. 64 and a reference to sub R. (1.) thereof makes it clear that Khasra Girdawari is the record in which are entered the details of rental and tenancy rights, agricultural statistics and the changes occurring therein for each plot which is numbered on the village map. Now the present dispute relates to tenancy rights for in essence the appellant's claim is that he is the tenant of the plot noted as Khasra No. 573. These Tenancy rights are to be recorded in column No. 6 of the Girdawari in accordance with the relevant rule, i.e., R. 74 sub-R. (1) which reads as follows: "The name of tenant or a person who holds land from the Government or from an estate-holder and who is or would be, but for a contract express or implied, liable to pay rent for his holding, would be entered in this column, along with the parentage, caste, residence and class of the tenancy." The perusal of this rule would make it abundantly clear that this column is provided for recording or entering the name of the person who is actually the tenant of the plot concerned. Now it has been laid down and made clear in a number of decisions by this Board that tenancy can be created only in two ways i.e. either by contract between the parties concerned or by operation of law. Therefore keeping the requirements of R. 74 in mind the duty of the Patwari is to find out which person is cultivating a particular field and from whom he is holding i.e. whether from the State or from the land-holder. In other words, the function of the Patwari is to record the existing tenant and he has no power or authority to create tenants. To make the point clear, if the Patwari finds 'A' claiming to be tenant of plot 'X' it is the duty of the Patwari to find out whether he had been duly admitted by the landholder, whether it is Government or a private person. The Sarpanch or lambardar who accompany the Patwari help the latter in ascertaining these facts, and under no circumstances have they any authority to create tenancies of their own. If the Patwari finds that there are more than two persons claiming cultivatory rights of a particular plot he should make a note of the fact that the tenancy rights are in dispute. He has no power to decide the dispute or record the name of one person to the exclusion of the name of the other. To sum up, the function of the Patwari is to record the name of tenant in whose favour the tenancy has been created by means of a contract or operation of law, and not to create a new tenancy on the basis of the information supplied by the Sarpanch or lambardar. The civil rights of the parties are always protected and no tenancy can be created by unilateral action because it would not be a contract. Having said so much we now proceed to consider the facts of the controversy in this case. The appellant had come to the court claiming to be tenant of the plot No. 573. In his support he cited the Girdawaries of the two provisions years-Rule 51 (iv) requires that whenever a change has to be made in the columns of the Khasra Girdawari the Patwari should make an entry in his Diary of Events. If any such change necessitates a change in the Jamabandi, the Patwari is further required to enter a mutation which would extend proper recognition, to the change. In the present case, when the Patwari altered the entries in the year 2014 and 2015 in favour of the defendants he did not enter any mutation or record the change in his diary and therefore, it cannot be said that those who were recorded as tenant in the year 2014 and 2015 were party to the change that was effected in the St. year 2014 and 2015. It is also an admitted fact that the proper person to admit tenants or sub tenants on this land is Shivji, father of the plaintiff. The learned SDO has not placed reliance on his statement which was recorded on oath before him but has accepted in evidence a statement which Shivji was alleged to have made before the Panchayat i.e. Ex. D. 2. But as pointed out by the learned counsel for the appellant, Shivji was never confronted with Ex. D. 2 at the time of his deposition. Assuming that Ex. D. 2 was correct and it was made by Shivji it was the duty of the trial Court to have taken into consideration the significance of this evidence. At best it could mean that in St. year 2014 and 2015 the respondent cultivated the land with Shivji's permission. But what the trial court failed to appreciate was that this act of Shivji even if we assume it to be a fact, could not have affected the rights which had accrued to Purkha by virtue of his two years' previous cultivation of the land in dispute as evidenced by Khasra teep of St. year 2012 and 2013. It could mean nothing more than that Shivji in a way terminated Purkha's tenancy and created a new tenancy in favour of the respondent. But whether he could do so, and if he had done so what would be its effect on the right of Purkha has not at all been considered by the learned trial court. If the learned trial court had cared to do so, it could have reached no other conclusion but that Shivji had no right to create a tenancy in favour of the respondent without the consent of Purkha. The main issue before the learned trial court in this case as required by sec. 125 of the land Revenue Act was as to which of the two parties was better entitled to possession in the year of dispute. As we have discussed the evidence above, there can only be one conclusion, which is, that unless the tenancy of Purkha existing in St. year 2012 and 2013 was lawfully determined, there could have been no fresh tenancy in favour of the defendants. The Patwari had no right to make a change in the existing entry regarding cultivation unilaterally nor could the Lambardar or Sarpanch accompanying the Patwari direct the Patwari to do so. It was essential in this case for the Patwari to have made enquiries from Purkha as well as Shivji about the real state of affairs. Since the Patwari had not done so and had recorded the entry, as is alleged, under the instruction of the Sarpanch and Lambardar we have no hesitation in holding that the entry has been made wrongly. We have also no hesitation in holding that the procedure adopted by the trial court was erroneous. The result of the above discussion is that we hold that the order of the trial court is wholly misconceived. We therefore accept this appeal, set aside the order, and direct that the Khasra teep of the year of dispute i.e. Smt. year 2014 and 2015, shall be amended and the appellant who has, prima-facie, better title to the possession of the land shall be shown as tenant thereof.;