- (1.) THIS is a second appeal under sec. 224 of the Rajasthan Tenancy Act, 1955 against the judgment and decree of the Revenue Appellate Authority, Udiapur dated 19-6-68. The appellant (plaintiff) filed a suit under sec. 188 read with sec. 91 of the Rajasthan Tenancy Act, 1955 (hereinafter referred as Act) against the respondent (defendant) in the court of the Sub Divisional Officer, Kekri in respect of Khasra number 90 measuring 5 bighas 8 biswas situated in village Rajpura. He claimed to be the cultivator of this holding and prayed for permanent injunction to be issued against the opposite party for not interfering with the possession of the plaintiff. The respondent (defendant) in his written statement completely denied the stand taken by the plaintiff and averred that he was the khatedar of the holding in dispute under the Act and his possession could not be disturbed by the plaintiff.
(2.) THE court of S. D. O. Kekri decreed the case on 9-1-67 against which the first appeal was filed in the court of the Revenue Appellate Authority, Udaipur. THE learned Revenue Appellate Authority set aside the judgment of he S. D. O. , Kekri by his order dated 19-6-68 and remanded the case to the lower court for further examination and fresh decision. We have heard the learned counsel for both the parties and examined the record of the case. It has been contended before us that suit under sec. 91 of the Act as well as proceedings for issuing injunction against wrongful ejectment under sec. 188 of the Act could not be taken up simultaneously. Separate sections have been provided in Chapter VIII of the Act for institution of declaratory suit. They are embodied in secs 88 to 90 of the Act. If any matter is not covered by these sections then only sec. 91 of the Act comes into play. Sec. 91 specifically reads as under: - "except as otherwise specifically provided, any person may sue for a declaration of all or any of his right conferred by this Act and not otherwise provided for". In the instant case the appellant has alleged tenancy rights over the disputed holding and since this was disputed by the respondent he should have instituted a suit under sec. 88 of the Act rather than sec. 91. It has been further urged that sec. 188 of the Act comes into operation only when rights of a tenant are invaded or threatened to be invaded and then alone he is entitled to file a suit for grant of a perpetual injunction under this section. In the instant case the appellant has not established his right of tenancy to the disputed holding in any of the two subordinate courts. The grant of injunction by the court of S. D. O. Kekri in favour of the appellant was clearly misconceived and not warranted by the provisions of sec. 188 of the Act. It has been argued before us by the learned counsel for the respondent that action both under secs. 91 and 188 of the Act could not be simultaneously taken. We do not subscribe to this view because when a suit can be instituted for declaration of certain rights there can also be issued injunction for the protection of such rights if they are established in accordance with due process of law. Unfortunately in the present case the appellant has not been in a position to establish his right of tenancy by production of record of rights and entries of khasra girdawari of the period when original suit was instituted in the trial court, hence any question of grant of injunction for such rights which were established, could not arise. Under the provisions of the Code of the Civil Procedure as made applicable to the revenue court injunctions can be issued in different types of suits. The burden of proving tenancy right and possession over the disputed holding squarely lay with the appellant in this case. He has not produced any record of right and other pertinent documentary evidence to establish his right in the lower courts. He has merely produced khasra girdawari for St. years 2013 to 2016 (Ex. P. 1) while the respondent has produced khasra girdawaris of St. years 2010 to 2012 in which the respondent has been entered as a tenant of the disputed holding. It has been strongly contended before us that khasra girdawari is not record of right and no presumption of truth could be attached to it. 1964 R. R. D. 101 and 1966 R. R. D. 13 have been cited by the learned counsel for the respondent. This point has not been disputed by the learned counsel for the appellant. Khasra girdawari is not a record of right but it has certain evidentiary value in order to prove possession of a person over a holding at a particular time whether such evidentiary value is of any worth depends on the circumstances of each case. In the instant case record of khasara girdawari produced before the lower court does not substantiate the tenancy rights of the appellant. On the other hand the tenancy rights of the respondent are indicated over the disputed holding at the time of filing the suit for dispossession of the respondent. It is the primary duty of the plaintiff to establish his title and possession in respect of a land before he can claim for relief therefor. If the case of defendant has certain lacunae, the plaintiff cannot take their advantages in order to succeed in his suit. (A. I. R. 1965 Supreme Court 1506 and 1967 Madras Law Journal 222 ). In the instant case the appellant had to prove his tenancy rights over the disputed holding and that he was in possession thereof before claiming ejectment of the opposite party therefrom. The existence of tenancy right over certain land and their infringement are the first prerequisites necessary for the grant of a temporary injunction (1957 R. R. D. 68 ). Unfortunately this condition has not been observed by the original court before granting injunction and the first appellate court was correct in setting aside the order of the lower court in this respect. Certain rent receipts (Ex. D to Ex. D. 3) have been produced by the defendant in this case which are in his name rather than that of the plaintiff. In khasra girdawari defendant has been recorded as cultivator of the disputed holding. This evidence indicates possession of! the respondent (defendant) over disputed holding as a tenant and he could not be easily ejected therefrom except by following the provision contained in Chapter XI of the Act. The proceedings before the first appellate court further indicate that the appellant was the maufidar of the disputed holding and that his rights as land holder were resumed by the Government of Rajasthan. After resumption of such rights what title remained with the appellant over the disputed land is a moot point about which no evidence is available on record. The learned Revenue Appellate Authority, Udaipur wanted to probe into this matter further by remanding the case to the lower court. It has been urged before us that there were no valid grounds for remanding this case because the appellant (plaintiff) had miserably failed to establish his title and possession over the disputed land in the original court and further enquiry in this matter was not called for. The respondent (defendant) who was in a rightful possession of the disputed land as a tenant could not be dispossessed by a land holder easily. The suit filed by the appellant (plaintiff) ha-1 failed initially. When sec. 15 of the Act came into operation the respondent (defendant) was a tenant of disputed holding on the basis of evidence tendered before the original court. In the circumstances this second appeal fails and is hereby dismissed along with costs to the respondent. ;