- (1.) THIS is an appeal against the appellate order of the learned Commissioner, Kota dated 15. 7. 59 whereby he reversed the order of the learned Sub-Divisional Officer, Ramganj-mandi dated 26. 6. 58.
(2.) THIS case has had a chequered history. Briefly, the facts are that on 12. 7. 54 Gopal respondent submitted an application in the Court of the learned Sub-Divisional Officer alleging that he was the tenant of the land specified in the application and that he had been wrongfully dispossessed by the appellants and respondents 2 to 5 in this appeal. He prayed u/s 7 of the Rajasthan Protection of Tenants Ordinance (hereinafter referred to as the Ordinance) that he should be reinstated. THIS application was dismissed on 31. 1. 55 by the learned Sub-Divisional Officer. Gopal respondent No. I then moved an application for revision in the Board of Revenue, and the Board on 1. 7. 55 remanded the case for fresh hearing. The Sub-Divisional Officer again dismissed Gopal's application on 26. 6. 59. Against this order Gopal filed an appeal in the Court of the learned Commissioner, which was accepted on 15. 7. 59. A preliminary objection was raised on behalf of Gopal respondent that in this case a second appeal is not competent. The objection was upheld and this appeal has been treated as a revision. The first contention raised by the learned counsel for the appellant is that Gopal's application having been filed u/s 7 of the Ordinance, the order of the learned Sub-Divisional Officer dated 26. 6. 58 was not appealable to the Commissioner as no appeal was provided in the Ordinance. The argument is that the appellate order of the learned Commissioner was without jurisdiction and should be set aside. The learned counsel for the appellants has strongly urged that this case ought to have taken its course according to the provisions of the Ordinance since the lis commenced when the Ordinance was in force. As a general proposition we agree that a suit or proceeding should take its course according to the law that was in force when the case or proceeding commenced, and that the vested rights of the parties including the right of appeal should not be affected by the change in the statute. But this general proposition which is based on the principle that legislation is as a rule prospective and not retrospective has to be considered in the context of the repealing statute. If the repealing statute is by express provision or by necessary implication retrospective, the general rule stands abrogated. We have, therefore to examine the position in the light of the provisions of Sec. 206 of the Rajasthan Tenancy Act (hereinafter referred to as the Act) which came into force on 15. 10. 55 and had the effect of repealing the Ordinance. On that date Gopal respondent's application originally made u/s 7 of the Ordinance was pending after the order of remand passed by the Board. Sub-sec. (1) of Sec. 206 of the Act says that all cases relating to matters dealt with in the Act and pending before the Revenue Courts on the coming into force of the Act, shall be deemed to have commenced under the Act and shall be tried, heard and determined "in the manner prescribed by or under this Act. '' For its proper construction this provision must be lead with the next following provision in the Act, namely, sub-sec. (2) of Sec. 206 which says that all pending cases which according to the provisions of the Act do not lie to or are not triable by the Revenue Court before which they are pending, shall be transferred to and be heard and determined by the Revenue Court to which they lie or by which they are triable "in accordance with the provisions of this Act. " This provision envisages a change of the forum of adjudication wherever necessary, and the intention clearly is that pending proceedings should take their subsequent course according to the provision of the Act. Sec. 186 of the Act provides that a tenant (which includes a sub-tenant) who has been unlawfully dispossessed of his holding may apply to the Asstt. Collector for his reinstatement. Therefore Gopal respondent's application for reinstatement which was submitted u/s 7 of the Ordinance had to be tried from 15. 10. 55 onwards in accordance with the manner prescribed by the Act, as laid down in Sec. 206 of the Act, since the Act made a provision for the reinstatement of tenants who are unlawfully dispossessed. As under Sec. 4 of the Ordinance so under Sec. 186 of the Act applications for reinstatement lay to the Sub-Divisional Officer (who is also an Asstt. Collector) and it was not necessary to transfer the case on the commencement of the Act as laid down in Sub-Sec. (2) of Sec. 206 of the Act. Nevertheless, the order passed by the learned Sub-Divisional Officer on Gopal's application after the commencement of the Act was an order passed under the Act, and such an order was appealable to the Commissioner in accordance with the provisions of the Act, that is to say, it was appealable to the Commissioner u/s 225 Sub-Sec. (1) (ii) of the Act. The learned counsel for the appellants has referred to the observations made by their Lordships of the Rajasthan High Court in "niroti Vs. the Board of Revenue quoted in Hardayal Singh Vs. Jagna" reported at p. 1 of RLW, 1959 (Revenue Supplement ). In the case before their Lordships of the Rajasthan High Court the question was whether a revision application brought u/s 10 of the Ordinance that was pending before the Board at the commencement of the Act could be treated as an appeal and remitted as such to the appellate authority provided under the Act. Their Lordships held that the revision pending before the Board had to be treated as a revision to be heard by the Board in accordance with the manner prescribed under the Act for the hearing of revisions under the Act. We do not think that these observations at all help the appellants. The circumstances of this case are quite different. As we have stated earlier, Gopal respondent's application for reinstatement made u/s 7 of the Ordinance, was a pending proceeding when the Act came in force, and this proceeding was deemed to have commenced under the Act and was determined in accordance with the provisions of the Act. That being the position, the order of the learned Sub-Divisional Officer was subject to appeal before the learned Commissioner. In coming to this conclusion, we find support from the observations made by the Rajasthan High Court in Shanker Singh Vs. Board of Revenue (C. W. P. 309 of 1959 decided on 8. 9. 61 ). This disposes of the first contention of the learned counsel for the appellants that the application for reinstatement which was filed u/s 7 of the Ordinance and was pending at the commencement of the Act should have proceeded on its career in accordance with the provisions of the Ordinance and not the provisions of the Act which repealed it. This contention would have been valid only if the Act had not provided for the reinstatement of a tenant unlawfully dispossessed, and in that event Sec. 205 (1) of the Act would not have been attracted. Another legal objection raised by the learned counsel for the appellants is that no protection was available u/s 7 of the Ordinance to Gopal who was only a sub-tenant and not a tenant. We find this contention to be utterly devoid of force, for Sec. 2 (viii) of the Ordinance so defines a tenant as to include a subtenant. Likewise, the protection given to tenants u/s 186 of the Act extends to sub-tenants by virtue of the definition of a tenant given in the Act. On merits, the only point urged is that Gopal respondent was signatory to a document cited as Ex. D. 3 and that as such he was estopped from denying that he had voluntarily surrendered the holding in dispute. This point has been examined at length by the learned Commissioner. Ext. D. 3 is a deed alleged to have been executed by one Bhim Raj P. W. 5 wherein he says that "he is cultivating" the disputed land in Svt. 2011 as a tenant of the appellants. As has been held in A. I. R. 1928 PC page 20, Gopal's attestation on this document estops him only from denying that he signed it. The learned counsel for the appellant has cited A. I. R. 1956 M. P. Page 16. This, however, does not help him because in the evidence and circumstances of the case there is nothing to suggest that by his conduct Gopal led any one to believe that he had voluntarily surrendered the land in dispute. On the contrary, the Girdawari record for Svt. 2010, which has been rightly believed by the learned Commissioner, shows that Gopal respondent continued to cultivate the land as in previous years. As against this record, Ex. D. 3 cannot be invoked to come to the conclusion that Bhim Raj P. W. 5 had taken possession of the land in Smt. 2010. In fact, Ex. D. 3 only expresses an intention and does not record that Bhim Raj had already taken possession of the land. We, therefore, agree with the learned Commissioner that Gopal respondent did not surrender possession, least of all voluntarily, and that he continued to be in possession in Svt. 2010 until he was unlawfully dispossessed by the applicants. The result is that this appeal which has been heard as a revision is dismissed. .;