- (1.) THIS is an application of one Madholal under Art. 226 of the Constitution of India.
(2.) THE opposite party Kalyan filed a suit in the court of the sub-Divisional Officer, Kota for ejectment against Madholal on the allegation that the defendant was a trespasser. THE sub-Divisional Officer granted a decree for ejectment of Madholal on the 26th of May, 1958. THE said decree was confirmed in appeal by the Commissioner, Kota Division, on the 3rd of June, 1959 and by the Board of Revenue in second appeal on the 11th of February, 1960. THE defendant again applied for review but he did not succeed and the Board of Revenue by its order dated the 14th of July, 1960 dismissed the review petition. Madholal has now come to this Court, and it is urged by his learned counsel that his client is a 'zaili' as defined under sec. 69 of circular No. 3 of the then Kotah State, and by judgment of this court in Ramnath Vs. Laxmichand (l) it has been held that a 'zaili' is a sub-tenant and is entitled to protection under the Tenants Protection Act. It is thus prayed that the petitioner was entitled to continue in possession and was not liable to be ejected. The Board of Revenue in its judgment dated the 11th of February, 1960, mentioned the facts of the case as noted below - The suit land belonged to one Deva the maternal-grand-father of the respondent (Kalyan ). Deva, it appears, had no son of his own and so brought up both appellant and the respondent, and got entered in his own life time through a regular mutation as per Kotah law on the subject (to which unit the case relates) his lands separately in the names of both the parties. The suit land was got entered in the khata of the respondent (Kalyan) on 1st of February, 1947. The respondent was a minor at that time and land continued to be managed on his behalf by Deva himself until he died in Samvat year 2013. They all lived together till then and land was also cultivated similarly. The land was, however, entered in the revenue records in the khata of the respondent with the appellant as 'zaili' on death of Deva. The Board of Revenue on the aforesaid facts held that even though Madho-lal was described as a 'zaili' in the gasht girdawari records, he was virtually not subtenant. In this view, the Board held that he was a trespasser and upheld the decrees of the courts below for his ejectment. In this application, the counsel for Madholal has laid much stress on the fact of the entry in gasht girdawari describing him as a 'zaili Reliance is placed on the judgment of this Court in Ramnath's case (1 ). It maybe noted that on the whole a 'zaili' may be sub-tenant and even though the definition of the term 'zaili' in sec. 69 of Circular No. 3 is very wide, it is seldom that a trespasser may come within the purview of the term. However the marginal noting to sec. 77 may have been taken note of by the officer in making the entries in the gasht girdawari in the instant case and if so the entry of Zaili may not disclose the status of a sub-tenant even though he may have been styled a Zaili. The facts of the case as mentioned in the judgment of the Board of Revenue are clear and they leave no room for any doubt that Madholal entered into the cultivation of the land during the minority of Kalyan while living with him and cultivating the land on his behalf as a member of his family more as his agent and manager of the property than as a sub-tenant. The entry in gasht girdawari in view of these circumstances, has no meaning and it cannot be regarded as giving Madholal the status of sub-tenant. It is for these facts the Board of Revenue has tried to distinguish between the case of 'zailis' who may be sub-tenants and those who may under peculiar circumstances not be entitled to such a status. This court has no doubt, observed in Ramnath's case (l) that a 'zaili' is ordinarily a sub-tenant, but having regard to the peculiar facts of this case, even though he may have been described as a 'zaili' in fact he is not and the term has not been used correctly in his case. Madholal obviously was a trespasser when he tried to cultivate the land in defiance of the tenant and he became a trespasser on that account. The Board of Revenue appears to have been quite right in thinking, under the peculiar circumstances of the case, that Madholal even though entered as a 'zaili' was not a cultivator of that type entitled to the rights of a sub-tenant. The petition fails and is dismissed with costs. .;