- (1.) THE plaintiff-respondent Bhanwar Lal filed a suit for declaration of khatedari rights and permanent injunction against the present appellants in the court of the S. D. O. , Beawar on 16 10-67 in respect of khasra numbers 156 ( 1 bigha 10-1/2 biswa) and 158 (2 bighas 15-1/2 biswa ) of village Thikrana Gujran, Tehsil Beawar. It was stated in the plaint that the cause of action arose on 16-9-67 and 8 10 67 when the opposite parties tried to destroy the standing crop and threatened to oust him In their written statement the the defendants said the plaint was not clear, that the plaintiff had had the revenue records altered in his favour and did not even belong to the village and that the land in dispute was common land.
(2.) THE S. D. O. framed four issues, the first being whether the plaintiff had cul-tivatory possession of the land in the capacity of a khatedar tenant and the second whether the defendants were trying to evict him unlawfully and by force. THE third issue, as to whether the plaint was incoherent, was not pressed by the defendants and the fourth related to relief. Because the defendants had in their written statement alleged that the records had been tampered with, they produced as a witness a patwari from Beawar tehsil along with the original record. On examina-tion of this record (khasra girdawaries) the learned S. D. O. came to the conclusion that the entries relating to the cultivatory possession of the plaintiff in St. 2015 and 2016 were in the form of over-writing and even the copy of the mutation which had been exhibited had interpolations. THEse records being gravely suspect, and there being no other evidence of that period to support the plaintiff, the S. D. O held that his claim to be declared a khatedar on the basis of the record of St. 2015 when the Rajasthan Tenancy Act was made applicable to Ajmer, was not established. Issue No. 1 was decided accordingly and because the plaintiff was found to have no right to the land the second issue was also decided against him. In appeal the Revenue Appellate Authority held that the plaintiff's title to khasra number 158 was established from the record but not that of khasra number 156 He, therefore, set aside the judgment of the S. D. O. and partly decreed the suit. Aggrieved by this, Mangla, etc. have come up in second appeal Learned counsel for the appellants has concentrated on the point that the trial court had carefully gone through the original khasra girdawaries of St. 2015 and 2016 as well as the mutation and found that they had been tampered with and could not be relied on. The Revenue Appellate Authority, on the other hand accepted the copies which had been exhibited at their face value. He had not attempted to discuss the judgment of the S. D. O. and give reasons why he differed from it On behalf of the respondent, it is argued that the S. D. O. did not frame an issue as to whether the record had been fraudulently changed. This allegation had been mentioned by defendants in their written statement and they could have asked the court to frame an issue. Counsel has cited 1968 R. R. D. 283 in support Moreover, when examined the defendants had claimed that the disputed land was pasture. It was for them to establish this claim but they had produced no evidence. We do not think this last argument has any substance. The burden lies on a plaintiff to establish his case and he cannot take advantage of any weakness in the stand taken by the defendants. It is immaterial whether the land is claimed to be used for grazing or not, the plaintiff has to establish that he is entitled to khatedari rights and, as a a corollary, to protection of his possession. A perusal of the first appellate court's judgment shows that the operative part is confined to about one and a half out of nearly seven typed pages and the documentary evidence is discussed only in two paragraphs. The curious part of this judgment is that although the changes in the record have been mentioned in summing up the S. D. O's. findings, the operative part is completely silent on this point. This is all the more bewildering because the judgment of the S. D O. is based entirely on an appreciation of the fact on the case of the plaintiff of the cuttings and interpolations in the khasra girdawaries of St. 2015 and 2016 and the mutation order. We cannot accept the argument of learned counsel for the plaintiff-respondent that a separate issue should have been framed on the point as to whether the record had been tampered with. The record itself was the basic evidence regarding the status of the plaintiff and, in discussing that status, it was perfectly open to the trial court the assess the effect of the the entries in the original record, including the corrections made therein, on the case. The learned S. D. O. went into this point in great detail, nothing the changes not only in khasra numbers 156 and 158 but also in khasra number 151 and what he has held to be an unsuccessful attempt to reconcile the areas under cultivation for the purpose of preparing the Milan khasra Learned counsel for the respondent, citing A. I. R. 1963 Supreme Court 302, says that the second appellate court is not entitled to interefere on the ground that the judgment of the lower appellate court is not as elaborate as that of the trial court or that some of the reasons given by the trial court are not expressly reversed. He has also cited 1962 RLW, 478 and 1968 R. R. D. 311 in support of his plea that the first appellate court is the final judge so far as facts are concerned. In our opinion, these rulings ate of no avail because the first appellate court has not even attempted to discuss and controvert the reasoning behind the judgment of the trial court. Rather, we feel that the rulings cited by learned counsel for the appellants i. e. , 1963 R. L. W. 316, 1969 R. R. D. 213 and 1970 R. R. D. 339 are very relevant and hold that the learned Revenue Appellate Authority has totally failed to give a reasoned judgment in accordance with the principles laid down in Order XLI, Rule 31, C. P. C. The Rajasthan Tenancy Act was applied to the Ajmer area in St. 2015. It was incumbent on the first appellate court to have examined the status of the plaintiff at that time in the light of the findings of the trial court. Apart from the khasra girdawaries of St. 2015 and 2016, the plaintiff produced the girdawaries of St. 2017 to 2025 ( which were not relevant to the point at issu ), a mutation effected in the year 1962 and the jamabandi of St. 2020 to 2023, i. e. 1963 to 1966. The mutation order in respect of khasra number 158 says the plaintiff is entitled to khatedari rights under sec. 15 of the Rajasthan Tenancy Act. This section confers these rights inter alia on a person "who at the commencement of this Act is a tenant of land otherwise than as a sub tenant or tenant of khudkasht. " It is apparent that the mutation was made on the basis of the corrected khasra girdawaries which have been rejected by the S. D. O. , and she jamabandi of St. 2020 to 2023 in respect of khasra number 158 at least is based on the mutation. The plaintiff failed to produce the earlier jamabandies before the trial court and it can only be inferred from this that the entries were not in his favour. The khasra girdawari is not part of the record of rights and, even had there been no corrections in the khasra girdawaries of St. 2015 and 2016, without the support other records they could not have been made the basis without the support of other records they could not have made the basis of a claim for Tenancy and the sanctioning of a mutation under sec. 15 of the Tenancy Act. The term "tenant" is defined in sec. 5 (43) of the Tenancy Act to mean a person by whom rent is, or but for a contract, express or implied, would be payable. The operative word is "payable" not "paid" and the de6nition would thus cover only a person who has come on to the land under some legal right or contract. A person who occupies land illegally and deposits rent in collusion with the patwari would not be a tenant because the rent would not be payable by him, even though he may pay it. There is no proof at all that the plaintiff was a tenant in St. 2015 and entitled to khatedari right under sec. 15 of the Tenancy Act. There is only a suggestion that he took possession in that year. Because this clear provision of law has been ignored the judgment of the Revenue appellate Authority would not be able to stand but in any case, as we have observed ealier, it is not a judgment which meets the requirements of Order XLI, Rule 31, C. P. C. The result is that the appeal is allowed and the decree and judgment of the Revenue Appellate Authority is set aside and that of the trial court restored. The parties will bear their own costs. . ;