- (1.) THIS is a revision under sec. 84 of the Rajasthan Land Revenue Act, 1956 against the order of the Additional Collector, Ajmer dated 13. 1. 62.
(2.) BRIEFLY the facts are that the applicant was allotted 555 bighas and 8 biswas of agricultural land by the Government of Rajasthan in village Sarnad, tehsil Arain by a lease dated 22. 7. 52 in connection with the Grow More Food Campaign. The lease was for a period of 5 years and is alleged to have expired in 1957. The Tehsildar Arain issued a notice to the applicant on or about 30. 3. 60 to vacate the land and when he did not vacate the Tehsildar took proceedings under sec. 91 of the Rajasthan Land Revenue Act. After issue of notice to the applicant on 14. 5. 60 the Tehsildar passed an order on 16. 6. 60 for the eviction of the applicant from the land in question. This order was challenged by the applicant before the Additional Collector, Ajmer who on 21. 7. 60 accepted the appeal of the applicant, set aside the order of the Tehsildar and remanded the case back to the Tehsildar for further enquiry according to law. The Tehsildar registered the case in his court on 19. 8. 60 and ordered to issue a notice to the applicant for compliance on 30. 8. 60. When the applicant did not appear on fixed date, the Tehsildar passed an order on 31. 8. 60 that the applicant should be evicted from the suit land within a week. On 20. 5. 61 the Tehsildar issued a notice to the appellant to vacate the suit land within a week. The applicant again went in appeal before the Additional Collector Ajmer. Along with the appeal an application under sec. 5 of the Indian Limitation Act was also filed with an affidavit to condone the delay in presenting the appeal after the period of limitation. The learned Additional Collector rejected the application under sec. 6 of the Indian Limitation Act and also the appeal holding that it was filed after the period of limitation and consequently it was barred by time. This application for revision has been submitted by the applicant against the above orders of the learned Additional Collector. The applicant's contention is that he did not have any intimation of the date of hearing on his application dated 1. 9. 60 which was heard in his absence and that he came to know of the orders passed on it only on or about 24. 5. 61 when he was asked to hand over possession or the land in pursuance of the order passed against him on 31. 6. 60. He added that he filed a reply to that notice on 9. 5. 61 in which he had stated that he had already filed a reply on 31. 6. 60 containing objections as provided under sec. 91 (4) (b) (ii) of the Rajasthan Land Revenue Act and that his application may first be decided but that the order was communicated to the applicant in respect of the objection filed by him. He further stated that no action was taken by the Tehsildar nor any reply was received by him and that he for the first time learnt on or about 12. 7. 61 that certain notices to his workers etc. were given by the Tehsildar in connection with the lands in dispute under sec. 91 of the Rajasthan Land Revenue Act and consequently he filed the appeal on 9. 8. 61 after obtaining copies on 20. 7. 61. He therefore contested that the applicant had no notice of the order dated 31. 2. 60 and that the subsequent orders passed were without disposing of the objections filed by him and that therefore his application under sec. 5 of the Limitation Act should not have been dismissed by the learned Additional Collector as also the appeal filed on account of its being barred by limitation. He further contended that the entire proceedings before "the Tehsildar and the learned Additional Collector were mis-conceived. He argued that the land had been allotted to him under a lease dated 22. 7. 52 and that consequently he was a tenant and that he could be evicted only under the provisions of sec. 161 of the Rajasthan Tenancy Act and not under sec. 91 of the Rajasthan Land Revenue Act. He, therefore, submitted that since the entire proceedings were ah initio illegal and without jurisdiction the orders of the learned Additional Collector and Tehsildar be set aside. The application was contested by the learned counsel for the Government. He argued that the revision was incompetent since a second appeal against the orders of the Additional Collector lay before the Revenue Appellate Authority under sec. 76 of the Rajasthan Land Revenue Act and that the application should consequently be dismissed as its acceptance would deprive the Government of one forum of appeal before a competent court. He also pointed out that the legal objections raised by the learned counsel for the applicant about the proceedings against him being under the Rajasthan Land Revenue Act and the Rajasthan Tenancy Act should have been raised either in the proceedings before the Tehsildar or before the learned Collector and that therefore he cannot now be permitted to raise that argument. He further argued that the status of the applicant was that of a Theka-dar or Ijardar and that under sub-sec. (43) of sec. 5 of the Rajasthan Tenancy Act the applicant did not come under the definition of the "tenant". He also referred to condition No. 2 of the lease wherein it is stated that the land had been given to the applicant as theka and that the applicant himself in his reply to the notice had admitted that he was a thekadar and therefore could not claim to be lessees. We have heard the counsel for the parties and have also carefully examined the record. We are not here going into the merits of the decision of the learned Additional Collector dismissing the application under sec. 5 of the Indian Limitation Act and the appeal before him in consequence, in view of the legal aspect that is being discussed. We have seen the lease deed in which the term "theka" has been used immediately followed by the term "lease". This has occurred twice. Not only that, in condition No. 2 of the deed it is also provided that on the expiry of the period prescribed the applicant would be given Khatedari rights ever the land. Sub-sec. (18) of sec. 5 of the Rajasthan Tenancy Act gives the definition of a "theka" as below. "ijara or theka" shall mean a farm or lease granted for the collection of rent, the area to which an ijara or theka relates shall be called the "ijara or theka area" and an "ijaradar" or "thekadar" shall mean the person to whom an ijara or theka is granted. " It is nobody's case that the land was allotted to the applicant merely for collection of rents. Even the! learned Govt. Advocate had to concede this. It is, therefore, clear that the document has to be interpreted as a lease and once it is so interpreted the applicant has to be treated as a tenant and any proceedings to evict from the land should be taken in accordance with the provisions of the Rajasthan Tenancy Act and not as a trespasser under the Rajasthan Land Revenue Act. The provision for the grant of Khatedari rights after the expiry of the prescribed period also indicates that the document was a lease deed and not a theka, as it would be farfetched interpretation, if Knatedari rights are also to be granted over a theka area where the thekadar is only given the right to collect rent. The learned counsel for the Govt. submitted that this aspect of the matter could have been raised by the applicant before the Revenue Appellate Authority to whom a second appeal lay under the orders of the Additional Collector. This is true, but once the revision has been entertained by the Board and the question involved is about the jurisdiction of the subordinate courts in the proceedings it is not necessary or proper to reject the revision only on the ground that a second appeal should have been preferred before the competent authority in accordance with the law. Particularly so in view of the tact that the entire proceedings before the Tehsildar and Additional Collector were misconceived as the proceedings were taken under the Rajasthan Land Revenue Act and a second appeal in respect of those proceedings before the Revenue Appellate Authority was not called for when the very basis of those proceedings is challenged in the revision. We, therefore, overrule the Government Advocate's objection in order not to prolong litigation unnecessarily, which will be a harassment to the parties. In view of our above observations and finding that the proceeding should have been taken under the Rajasthan Tenancy Act for eviction of a tenant we hold that the present proceedings before the Tehsildar Arain and the Additional Collector Ajmer which were under the Rajasthan Land Revenue Act were illegal and consequ-ently the Tehsildar and the learned Additional Collector learned jurisdiction ab initio. We, therefore, do not find it necessary to go into the merits of the application under sec. 5 which was submitted by the applicant before the Additional Collector along with his appeal and we accept this revision and set aside the orders of both the lower courts and vacate the notices issued to the applicant under sec. 91 of the Rajasthan Land Revenue Act. .;