- (1.) THIS second revenue appeal has been instituted under sec. 224 of the Rajasthan Tenancy Act, 1955 against the judgment and decree of the Revenue Appellate Authority, Bikaner dated 19-7 68. The respondent ( plaintiff) instituted a suit under sec. 183 of the Rajasthan Tenancy Act, 1955 against the appellant (defendant) in the court of Sub-Divisional Officer, Nohar. He alleged that khasra No. 20 measuring 9 bighas 16 biswas situated in the jungle of village Dhani Charnan was in his khatedari which he has been cultivating since samvat year 2007. A mutation of khatedari was also filed with the plaint. It was further averred that the appellant (defendant) had forcibly occupied the disputed land in samvat year 2016 as a trespasser. He produced copy of khasra girdawari for the period samvat 2012 to 2016 (Ex. P/2) and copy of mutation (Ex. P/3) in support of his suit. In his written statement the appellant (defendant) admitted that the disputed land was situated in the jungle of village Dhani Charnan and that he has obtained this land from the jagirdar of the village approximately 13 years ago and he has been continuously cultivating it and paying rent to the jagirdar in the first instance and after him to the State Govt. He claimed that the disputed land was in his possession in samvat year 2012 and so he automatically gained khatedari rights thereon under sec. 15 of the Rajasthan Tenancy Act, 1955. He averred that the respondent (plaintiff; had never cultivated the suit land nor he had any possession thereon. He further revealed that the appellant (defendant) had instituted a declaratory suit in respect of the disputed land against the respondent (plaintiff) which is pending in the court for decision. The learned Assistant Collector, Nohar framed 3 issues and took over evidence in respect of both the contesting parties. Pyrelal P. W. 1), Gangadhar (P. W. 2), Bhagirath (P. W. 3), Durgaram (P. W. 4), Kuberdan (P. W. 5) have been examined for the plaintiff and deed of agreement dated 21-7-56 (Ex. P/l) copy of khasra girdawari for samvat 2012 to 2016 (Ex. P/2) and copy of mutation No. 78 decided on 9-10-57 (Ex. P/3) have been produced in support the plaintiff's suit while the defendant has produced Kasi (D. W. I) Chandru son of Lalu (D. W. 2), Balu (D. W. 3) Chandru son of Bakhtawar Singh (D. W. 4) and Sukhdan (D. W. 5 ). The Sub-Divisional Officer, Nohar by his judgment and decree dated 12-12-67 decreed the plaintiff's suit and ordered for the ejectment of the defendant from the land in dispute. In the first appeal against this judgment the learned Revenue Appellate Authority, Bikaner by his judgment dated 19-7-68 rejected the appeal and confirmed the order of the lower court. A second appeal has arisen against the last appellate order
(2.) WE have carefully perused the record of the two lower courts and heard the able and lengthy arguments of the learned counsels for both the parties, It has been urged before us that the following two conditions are essential before a suit can succeed under sec. 183 of the Rajasthan Tenancy Act, 1955 - (i) There should be a trespasser with possession on suit land without lawful authority; and (ii) the suit must be brought by a person entitled to admit the trespasser as tenant. Thus in the present dispute the most important point for determination before the trial court was who was the khatedar of the disputed land and whether the opposite party was a trespasser or not. It has been argued that no record of right has been produced to substantiate the claim of Bhagirath plaintiff that he had taken the suit land from the erstwhile jagirdar and that he was in khatedari of this land and, therefore, entitled to give it for cultivation to anybody else Merely khasra girdawari (Ex. P/2) and mutation (Ex. P/3) have been produced. There is however, statement of Kuberdan former jagirdar (P. W. 5) in favour of the plaintiff that the suit land was allowed by his father in samvat year 2007 to Bhagirath plaintiff. But no written patta granted by the jagirdar has been produced. It may also be recorded at this stage that Kuberdan admits that his father was jagirdar of l/3rd share while the 2/3rd share belonged to Sukhdan and Tulsidan, jagirdars but his father was the manager of the lands. Oral evidence produced by the plaintiff is not of much consequence except the statement of Kuberdan (P. W. 5) who is former jagirdar's son. His father is reported to be dead. The title to an agricultural land cannot be properly sustained on the basis of a mutation and entries in khasra girdawaris which do not constitute a "record of right" and consequently presumption of truth that normally attaches to a record of right cannot be applied in this case. In 1966 R. R. D. 105, it was so held and the parties were asked to produce settlement record or copy of jamabandi in a suit under sec. 183 of the Rajasthan Tenancy Act to prove their right over the disputed land. Almost similar view was held in 1966 R. R. D. 393. In 1969 R. R. D. 390, a suit for possession under sec. 183 of the Rajasthan Tenancy Act on mere mutation proceedings was considered to be patently incorrect. We roust, therefore, hold that in the instant case the respondent (plaintiff J has failed to establish his title of khatedar over suit land before the trial court in his suit under sec. 183 of the Rajasthan Tenancy Act by producing the settlement record or another record of right. He has, however, produced Kuberdan (P. W. 5) in the trial court whose testimony has not been properly weighed by the two subordinate courts and we will discuss it hereafter. It is an admitted fact that the suit land was a jagir and that there were 3 co-sharers of it-viz. Bhurdan, Sukhdan and Tulsidan in equal shares. Kuberdan son of Bhurdan former jagirdar (P. W. 5) has testified to this fact in his statement dated 9-3 65. Kuberdan has emphatically stated that his father had given the suit land for cultivation to Bhagirath plaintiff in samvat year 2007. He further claims that his father was the manager of the jagir of land but there is no evidence to this effect. On the contrary we find that Sukhdan co-sharer jagirdar (D. W. 5) has been examined on behalf of Kasiram, a defendant and he has in his statement dated 9-11-66 stated that the land in dispute was never given for cultivation to Bhagirath plaintiff by Bhurdan. If he would have done so he would have told him and necessary entry would have been made in the record of the jagir which has since been deposited with the Tehsil after resumption. He has also pointed out that both the contesting parties have separate lands. Thus a conflict has arisen from the statement of co-sharers of a jagir who were entitled to give their lands for cultivation i. e. they were entitled to create tenancy when jagir existed. When such was the position before the trial court the matter ought to have been probed further and all available former jagirdars of the land ought to have been examined to determine the real fact. The point for determination was whether the suit land was given by the jagirdars in tenancy to the plaintiff or defendant and if so when and whether the tenancy has continued to remain in cultivatory possession thereof until the year 1955 when the Rajasthan Tenancy Act came into force. We find that the trial court has not mentioned the evidence of Kuberdan (P. W. 5) and Sukhdan (D. W. 5) in its judgment. It has not applied its mind to the contrary statements given by them. The learned Revenue Appellate Authority, Bikaner has merely referred to Kuberdan's testimony but he has failed to weigh the effect of the evidence of Sukhdan before arriving at his conclusions in favour of the plaintiff. It has been strongly argued before us that both the trial court and the first appellate court have not properly marshalled and weighed the evidence to determine correctly the points in issue and hence their judgments deserve to be set aside. Much has been argued about the failure of Kashiram defendant to prove his counter-claim as enunciated by him in his written statement. It has, however, been pointed out that plaintiff must stand on his own evidence to prove his suit. He cannot take advantage of the shortcomings of the defendant (A I. R. 1965 S. C. 1506 and 1969 M. L. J. 222 ). This is a correct position. In the instant case the defendant has also failed to prove that he got the land from the jagirdars and that he has been continuously cultivating it until the promulgation of the Rajasthan Tenancy Act in 1955 He has not established his khatedari right over the land by producing any record of right. The oral evidence produced by him in support of his claim does not carry him too far. As we have pointed out earlier the plaintiff's claim has not been fully substantiated and the enquiry has not been thorough and so we need not look into the counter-claim of the defendant. The learned counsel for the respondent has pointed out certain interesting facts about the suit land. Balu (D W. 3) got a suit for ejectment in respect of disputed land against Bhagirath plaintiff which went up to the Board of Revenue and it was decided on 27-1-65 in the Revenue Appeal No. 12/1963 (Ganganagar ). The judgment of the Board of Revenue was produced by the plaintiff before the trial court in the present dispute on 26-12-66, It has not been touched by the trial court in its judgment but it has been considered by the Revenue Appellate Authority, Bikaner in its appellate judgment. We find that Balu claimed khatedari rights over khasra No. 20-9 bighas 16 biswas in village Dhani Charnan Tehsil Nohar. His suit was dismissed by Sub-Divisional Officer, Nohar on 21-6-62 but the Revenue Appellate Authority, Bikaner reversed the judgment. The second appeal was heard ex-parte by the Board of Revenue which was filed by Bhagirath and it was accepted and the order of the Revenue Appellate Authority was set aside. In this dispute Bhagirath had claimed that he cultivated the disputed land in samvat 2012 and sublet it to Balu in samvat 2013. It has been contended before us that by producing deed of agreement dated 21-7-56 (Ex. P/l) that Bhaguram or Bhagirath has tried to show that some land was given for cultivation to Kashiram for samvat 2013. These two contrary positions in respect of the same land for the same year is not understandable since execution of this document (Ex. P/l) has been denied by Kashiram in his statement (D. W. 1) and it has not been fully established by attesting witnesses. We need not dilate over this controversial point. Moreover we need not enter into such detailed appreciations of evidence in second appeal unless the matter falls within the purview of sub-sec. 2 (iv) of Sec. 224 of the Raj. Tenancy Act, 1955 which is apparently not the position in the present case. It has also been attempted during the course of arguments to establish that there is variance between the pleadings of the plaintiff and the evidence produced and that the two subordinate courts have tried to make a new case for the plaintiff. The subordinate courts have not drawn up their judgments issue wise and there has not been correct decision in respect of different points for determination as held in 1963 RLW. 316, 1964 R. R. D. 139 and 1970 R. R. D. 379. We have carefully perused the evidence as well as the judgments of the two subordinate courts. They have not considered all the evidence tendered before them as pointed out already and they have not applied their mind fully by calling upon the parties concerned to produce all possible evidence in respect of their title before arriving at a proper conclusion. The examination of evidence in the two subordinate courts has not been detailed but perfunctory and we have already pointed out glaring instances of lack of evidence or misappreciation. Here is a case that both the trial court and first appellate court have come to same conclusions but their concurrent findings had to be looked into further because the essential ingredients for success of a suit under sec. 183 of the Rajasthan Tenancy Act, 1955 have not been fully established and important lacunae have been left in the examination (1968 R. R. D. 30 ). On the basis of evidence tendered in the present dispute we are not in a clear position to determine whether the appellant (defendant) or the respondent (plaintiff) were in actual enjoyment of khatedari rights of the suit land when the Rajasthan Tenancy Act, 1955 came into force and who is the trespasser, for want of real evidence in respect of this point. We, therefore, accept this second appeal and set aside the judgments and decrees of the two lower courts and remand the case for further enquiry and proper decision in respect of the main points in issue. Both parties to bear their own cost. . ;