- (1.) A suit was filed by the plaintiff-appellant Prabhu before the Sub- Divisional Officer, Jetaran in 1964 under sec. 89, 92a and 188 and 53 Rajasthan Tenancy Act for declaration of khatedari rights, injunction and partition between himself and the defendants No. 3 to 6 in respect of khasra Nos. 17, 18 and 21 comprising a total area of about 141 bighas. The plaintiff alleged that he was a sub-tenant of the defendant Mangal for 22 years and by operation of law he became a khatedar under Sec. 19 Rajasthan Tenancy Act and that the defendant was trying to eject him. Reference was also made to a compromise dated 27 8-64 arrived at between the plaintiff and his co-tenants, the said defendants No. 3 to 6 agreeing that the said land may be partitioned between them in equal shares. The defendants' case was that the plaintiff was not their sub-tenant in samvat 2012, but from samvat 2013, land measuring 66 bighas 10 biswas (and not the total area of 141 bighas) was in the plaintiff's cultivation with other defendants. The rest of the land was cultivated by the defendants themselves. The trial Court framed four issues and found that the plaintiff with other defendants was cultivating the entire land since Samvat 2013 and was, therefore, not entitled to khatedari rights but only to injunction. He also held that the plaintiff and other defendants were not recorded as sub-tenants in the revenue records and no application was made by them within 2 months as required by sec 19 (2) Rajasthan Tenancy Act. Both parties appealed to the Revenue Appellate Authority, the plaintiff because khatedari rights were not accorded to him and the defendants No. 1 and 2 because the order of injunction had been made against them in favour of the plaintiff and defendants No. 3 to 6. The first appellate Court dismissed the plaintiff's appeal and decreed the appeal of defendants No. 1 and 2. It also passed an order under sec. 209 Rajasthan Tenancy Act for ejectment of the plaintiff and defendants No. 3 to 6, because it was held that the defendant had sublet the entire holding for one year only in samvat 2013 and thereafter, the plaintiff had become a trespasser. Hence this second appeal.
(2.) THE facts leading to the instant revision are that Gram Panchayat, Jetaran on the basis of possession in samvat 2012, effected mutation of the disputed land under sec. 19 Rajasthan Tenancy Act in favour of the applicants. THE appeal preferred before the Additional Collector, Pali by Mangal Chand on the ground that as the applicants were not recorded in the annual register of samvat 2012 and as they were not his sub-tenants they could not become khatedars under sec 19 (1) or (b) Rajasthan Tenancy Act, was accepted and the mutation was set aside. Aggrieved thereby the present applicants have filed this revision before the Board. As the decision in the appeal will also dispose of the revision and counsel for both parties have agreed to their being decided together, both the cases i. e the appeal and the revision are being decided by this single judgment. The grounds advanced by appellant's counsel were that the first appellate Court erred in deciding that the appellant was not a khatedar tenant under sec. 19 Rajasthan Tenancy Act by not appreciating the oral and documentary evidence and against the weight of evidence on record by ignoring the khasra girdawaris. He also misapplied and misinterpreted sec. 209 Rajasthan Tenancy Act whereby he ejected the appellant and others. Thus he made out an entirely new case for the respondents ignoring pleadings, issues and even the fact that the parties had never gone on trial on the issue of ejectment of the appellant and others. Learned counsel stated that there was no dispute that the plaintiff-appellant cultivated the land from samvat 2013 and only the khasra girdawari for samvat 2012 was disputed by both parties each maintaining that it cultivated the land. An objection was taken at this stage by respondent's counsel that as there were concurrent findings of fact by both the lower Courts that the plaintiff did not cultivate in samvat 2012, the fact cannot be agitated further in this Court. He cited AIR 1963 SC 302 in support. Appellant's counsel replying to the objection maintained that as the trial Court had misappreclated evidence on this point it has to be explained before this Court. He referred to ex. P/1 being the khasra girdawari for samvat 2012 in which plaintiff-appellant's name with others has been recorded in cultivatory possession but the defendant's witness DW 2, one Nathusingh patwari has stated that the entry in St. 2012 khasra girdawari was made by him by mistake and the entry should have been for samvat 2013. He has proved Ex. D/l being a girdawari slip dated 6-11-55 in favour of the defendant but in his cross-examination he said that he was unaware for which year this slip was issued. Counsel maintained that the patwari's evidence is not plausible and is contradicted by the khasra girdawari but the trial Court has relied on such evidence in preference to the record. Counsel further argued that no annual registers were prepared in Jetaran at the relevant time and, therefore, when tenancy was recorded in khasra girdawari from samvat 2012 and admitted by the defendant from samvat 2013 then it was not necessary for the plaintiff to apply within 2 months as provided in sec. 19 (2) Rajasthan Tenancy Act and cited 1965 RRD 270 in support. Counsel also stated that both the lower Courts have held that the plaintiff had cultivated the entire land and not 66 bighas 10 biswas as alleged. There is no demarcation of the disputed land to show which portion had been let out. The defendant has prevaricated in his evidence. He did not mark or measure the land when he let it out to the plaintiff for cultivation. Regarding the other ground learned counsel stated that no case was advanced or pleaded or any prayer for ejectment of the plaintiff was ever made and moreover no issue was framed and no evidence was taken. He maintained that a Court cannot give relief in disregard of the provisions contained in O 6, R 2 and O 7, R 7, CPC. He cited 1958 RRD 37, AIR 1953 SC 235, AIR 1954 SC 758, AIR 1965 SC 560, AIR 1966 SC 735, AIR 1970 SC 2025 and AIR 1971 SC 361 in support. Counsel stated that the defendants even on their pleadings could not have asked for ejectment unless they made out a case under sec. 177 and 180 Rajasthan Tenancy Act (if plaintiff and others were their sub-tenants) or under sec. 183 Tenancy Act (if plaintiff and others were trespassers ). A sub-tenant holding over is not a trespasser and the Revenue Appellate Authority has held that the land was let out for a year. The defendant Mangal Chand in his statement has said that the plaintiff continued to cultivate the land and pay rent therefor. Counsel citing in this connection 1961 RRD 109, 1963 RRD 250 and 1959 RLW (RS) 33 and 1958 RLW (RS) 36 prayed that the Revenue Appellate Authority's judgment may be set aside and the decree and khatedari may be declared in favour of the plaintff-appellant and defendants No. 3 to 6. Learned counsel for the respondent in reply referred to S. 19 Rajasthan Tenancy Act and said that khasra girdawari is not an annual register and cited 1964 RRD 101 in support. He maintained that as the plaintiff was not entered in the annual registers or jamabandi of samvat 2012 he was not entitled to khatedari. He referred to 1953 RRD 354 in support. Counsel argued that both Courts have appreciated the evidence and have held that khasra girdawari of samvat 2012 has not been proved in favour of the plaintiff. The trial Court in its judgment has stated that it has seen the original khasra girdawari and there are many mistakes therein. Therefore as the disputed land was sublet in samvat 2013, khatedari cannot accrue under sec. 19 Rajasthan Tenancy Act. Counsel distinguished 1965 RRD 270 cited on behalf of the appellant as therein the landholder had admitted that his tenant was in possession in samvat 2012 while in the instant case the cultivation in that year has been denied. Regarding the second ground counsel argued that as the disputed land was sublet in samvat 2013 for one year only the plaintiff became a trespasser liable to ejectment under sec. 183 Rajasthan Tenancy Act as his authority to retain the land ended. Citing 1965 RRD 1 counsel maintained that as the plaintiff has effected partition without the landholder's permission and has asked for permanent injunction against him, he has set up a title against his landholder and is, therefore, liable to be ejected. The plaintiff has not proved that the is a tenant from year to year though the onus was on him. He cannot rely on the defendant's statement to prove his case. Merely by accepting rent the landholder is not estopped from denying the tenancy. Counsel cited 1954 SC 758 to show that payment of rent does not necessarily establish the relationship of landlord and tenant between the parties. Counsel maintained that the fact of payment of rent by one party to another was consistent with his having permissive occupation under an amicable arrangement with the other party without there being any relationship of landlord and the tenant. This finding is based on a particular case which is not similar to the facts of the instant case. Referring to O 41, R 33 CPC counsel maintained that an appellate Court can give any relief that may be necessary by exercising its extraordinary powers and may give such relief even against the pleadings. He cited AIR 1971 Allahabad 162, AIR 1965 Bombay 129 and 1956 Raj. 45 and AIR 1968 Kerala 38. He also maintained that the purpose of sec. 209 Rajasthan Tenancy Act is to avoid further litigation and referred to 1966 RRD 39 and 1966 RRD 68. Lastly counsel prayed that both the lower Courts' findings that declaration of khatedari rights cannot be granted may be upheld and while upholding the first appellate Court's order to set aside the trial Court's order granting permanent injunction and partition. In his rejoinder learned counsel for the appellant pointed out that it was not the fault of the plaintiff that the annual record did not exist at the relevant time as mentioned. Therefore nothing could have been entered in such non-existent record which also he could not have produced and he cannot be, therefore, prejudiced thereby. He distinguished the rule in 1963 RRD 354 as in that case the annual record register was in existence but I was not pro\ed which is not the position in the instant case. It was proved that the plaintiff was in possession in samvat 2012 because the land record papers state that he cultivated it in that year. If he did not apply to the SDO under sec. 19 Rajasthan Tenancy Act at best it was a summary remedy and procedural matter. He has there after filed a regular suit for declaration of khatedari by which he is seeking substantive remedy. Counsel distinguished 1965 RRD 1 cited on behalf of the respondents where the facts are different and stressed that in the instant case the plaintiff was admitted as,and made a sub-tenant by the defendant and he again in this connection referred to 1961 RRD 109 and 1963 RRD 250 cited by him earlier during his arguments. He maintained that the plaintiff has not taken advantage of any weakness of the defendant but has merely sought relief on the latter's admission of sub-tenancy in favour of the former. The plaintiff is neither denying the defendant's rights nor putting up any adverse title but is in fact claiming through them as his tenants-in-chief. Counsel clarified that sec. 183 Rajasthan Tenancy Act itself provides a suit by a tenant for injunction against his landlord Therefore, it cannot be alleged that by asking for such a relief the plaintiff has set up an adverse title against the defendant. He also contended that on basis of O 41, R 33 it cannot be claimed that the appellate Court could pats a decree granting a relief without any issue being framed or evidence being led or pleading made on the point. We have considered the above argument and examined the records. The first point which has to be considered is whether the plaintiff was in cultivatory possession of the disputed land in samvat 2012. There is no dispute that he was a sub-tenant since samvat 2013. As regards the previous year the khasra girdawari of that year states that the plaintiff was in cultivatory possession. This was tried to be controverted by the evidence of the patwari Nathu Singh, DW 2 who deposed that the entry for samvat 2012 was made by him by mistake and that it should have been for the next year. The trial Court has stated that it had called for and seen the original khasra girdawari and that there are a lot of mistakes therein but what these mistakes were, it has neither mentioned nor explained. Nathu Singh had also proved Ex. D/l said to be a true copy of the girdawari slip dated 6-11-55 in favour of the defendant but when cross-examined, he said he did not know for which year the slip was issued. Strangely enough the girdawari slip does not mention the samvat year to which it relates and the space for the year has not been filled in nor it has mentioned the crops which were grown in the land in that year while the khasra girdawari for samvat 2012 has recorded all this detailed information according to rules. It was also noted that the area of the cultivated parts of the disputed khasra Nos. 17, 18 and 21 was not entered in the said girdawari slip which is at variance with the area entered in the khasra girdawari for samvat 2012. Furthermore the girdawari slip for samvat 2013 Ex. P/2 issued to the plaintiff is in established form and fully tallies both in cultivated area and crops grown with the entries in the khasra girdawari for samvat 2013. It is evident, therefore, that such testimony as given by the patwari does more harm to the defendant's case than helping him and it is contradicted by documentary and oral evidence of the other side. Moreover the copy of girdawari slip produced by the defendant is not a certified copy. It is written on a plain piece of paper and it is not known who or which office has issued it. Learned counsel for the respondent argued that as the plaintiff was not recorded in the annual register as a sub-tenant in samvat 2012 and as he did not apply to the SDO within 2 years from the appointed date as mentioned in sec 19 Rajasthan Tenancy Act he could not become a khatedar under that section. Appellant's learned counsel has, however, pointed out that in Jetaran when the Tenancy Act came into force in samvat 2012 there were no annual records and therefore nothing could have been entered therein and as the plaintiff, therefore, could. not have produced or proved something which did not exist, such non-production cannot be held to his prejudice. Moreover he has stated in his plaint that he has been cultivating the disputed land for the last 22 years before he filed the suit in 1964. He has also explained that he did not apply to the sub-Divisional Officer under sec. 19 (2) Rajasthan Tenancy Act which means that he did not avail of a summary and procedural remedy but he has sought latter a substantial remedy by filing a regular suit for declaration of khatedari. Learned counsel for the respondent has not been able to controvert these cogent arguments and we, therefore, agree that in the circumstances as detailed above the plaintiff-appellant has attained the status of khatedar by operation of law under sec. 19 Rajasthan Tenancy Act. As the plaintiff has claimed through the defendant as his tenant-in-chief, he has not put up any adverse claim and in any case there can be no estoppel against the statute. The other ground agitated by the appellant is misapplication of sec. 209 Rajasthan Tenancy Act by the Revenue Appellate Authority in his judgment whereby he and his co-tenants were ordered to be ejected. Sec. 209 Rajasthan Tenancy Act reads as under : - 209 Granting any relief to which plaintiff is entitled.- In any suit or proceeding the Court may, on the application of the plaintiff and after framing the necessary issues, grant any relief which the Court is competent to grant and to which it may find the plaintiff entitled, notwithstanding that such reliel may not have been asked for in the plaint or application; Provided that, after framing such issue, the Court shall, on the request of either party, grant reasonable time for the production of evidence. In the instant case the relief was given under sec. 209 Rajasthan Tenancy Act not to the plaintiff but to the defendant-appellant in the Revenue Appellate Authority's Court without framing any issue and granting any time for production of evidence. It is clear, therefore, that in the circumstances of this case as detailed above the appellate Court could not have passed a decree for ejectment of the plaintiff and his co-tenants holding them to be trespassers invoking the provisions of sec. 209 Rajasthan Tenancy Act. Learned counsel for the defendant Mangal Chand's legal representatives argued that such an order could have been passed by the first appellate Court in accordance with the provisions of O 41, R 33 Civil Procedure Code. But in view of our finding mentioned above that the plaintiff and his co-tenants had become khatedars by operation of law under sec. 19 Rajasthan Tenancy Act this argument becomes infructuous and it is not necessary to discuss it further. In the light of the foregoing discussions, the appeal is hereby accepted, the decree and judgment off the Revenue Appellate Authority, Bikaner camp Jodhpur dated 28-4-69, is set aside and the trial Court's decree and judgment dated 24-8-66, excluding therefrom the rejection of the plaintiffs suit for declaration of his khatedari, are hereby maintained and the plaintiff is declared a khatedar tenant as prayed. As a result of the above decision, the revision filed by Prabhu and others is also hereby accepted, the order of the Additional Collector, Pali dated 3-5-67 is set aside and the mutation order of the gram panchyat Jaitaran dated 25-5-66 is hereby restored. The costs of the plaintiff-appellant in both the appeal and the revision Throughout will be borne by the present respondants Nos. 1 to 5 being the legal representatives of Manual Chand deceased.;