- (1.) THIS appeal under sec. 224, Rajasthan Tenancy Act has been filed on 21-1-71, against the decree and judgment of the Revenue Appellate Authority, Jaipur bearing the date 30-12-70. Mool Chand and Jagdish, to be hereafter called the respondents filed an application under sec. 20, Rajasthan Tenancy Act for compensation on the allegation that Panna the present appellant, to be hereafter called the appellant, was the respondents' sub tenant as held by the learned Additional Commissioner, Jaipur in the judgment pronounced on 25-2-59, and had acquired khatedari rights in this land depriving the respondents of their khatedari rights. The respondents claimed Rs. 2,068. 24 as compensation for their khatedari rights in respect of the land of which the appellant was a sub-tenant. The application was filed in the Court of Sub-Division Officer, Neem-ka-thanna. The learned S. D. O. after recording evidence and hearing the parties decreed the respondent's claim. The appellant aggrieved by the above order preferred an appeal in the Court of the Revenue Appellate Authority, Jaipur and the learned Revenue Appellate Authority holding, like the learned S. D. O. , that the requirements of S. 20 made out, upheld the orders of the court of first instance and dismissed the appeal. The appellant has, therefore, come in this second appeal.
(2.) WE have heard learned counsel for the parties and examined the record. The judgments of the lawer Courts have been attacked before us on the ground that there was no case for award of compensation under sec. 20 because the respondent was not a khatedar tenant and because khatedari rights had not accrued to the appellant on the ground of his being a sub-tenant. The court of first instance held that the decision of the learned Additional Commissioner, in a matter inter partes, that the appellant was a sub-tenant of the respondents was sufficient to show that the appellant was a sub-tenant and further that in this view of the matter, Sec. 19 (l ). (b) becomes relevant and under this provision of law Panna, the appellant acquired khatedari rights in respect of this land. The relevant portion of Sec. 20 is reproduced below : - "20. Submission of claims for compensation: - (1) Every person claiming compensation on account of the accrual of rights in improvements (other than wells and other irrigation works) existing on, and of khatedari rights in respect of the land held from him by his tenant of Khudkasht or sub-tenant shall submit a detailed statement of his claims for such compensation to the Sub-Divisional Officer in the prescribed form and in the prescribed manner. " On a perusal of this section it will be at once noticed that a claim for compensation under sec. 20 can be sustained if (1) the claimant had khatedari rights and has been deprived of these rights and (2) if the sub-tenant has acquired khatedari rights in respect of the land from the claimant because he is sub-tenant. To establish a claim for compensation under sec. 20 the respondent should have proved that he was a khatedar tenant of this land i. e. had khatedari rights m respect of this land. He can be eligible for compensation only if he had khatedari rights. If the claimant did not have lost any khatedari rights he cannot ask to be compensated for khatedari rights. He can claim compensation for such rights as he had and lost as a result of operation of law in favour of his sub-tenant and the compensation payable would be covered by sec. 20 if these rights were those of a khatedar. The determination of the question whether the respondent had khatedari rights is, important and we are sorry to note that the two Courts below did not apply their mind to this aspect of the case. From the decision of the learned Additional Commissioner which seems to have formed the basis of the decision of the two Courts, it is apparent that the respondent was an 'izaredar'. The judgment does not say that the respondent was a khatedar tenant of this land. He is not recorded as a khatedar tenant annual registers and there is nothing to show that he had acquired khatedari rights. On behalf of the appellant it was stated and correctly that an 'izaredar' is not a tenant within the meaning of the Rajasthan Tenancy Act because Sec. 5 (43) which defines the word "tenant" for the purposes of the Act specifically excludes an 'izaredar' from the classification of "tenant". One who is not a tenant cannot naturally be a khatedar tenant and hence the respondent who was an 'izaredar' and not a tenant was not a khatedar-tenant. He did not have any khatedari rights in respect of the land in dispute and was not, therefore, deprived of any khatedari rights The provisions of sec. 20 are, therefore, of no avail to him for claiming compensation. The appellant and the respondent were apparently parties to the proceedings which culminated in the judgment pronounced by the learned Additional Commissioner, Jaipur on 25-2-59. It was a suit for recovery of rent and the suit was decreed on the finding that the defendant (the present appellant) was a sub-tenant of the plaintiffs (the present respondents) who were the 'izaredars'. The issues framed in that case are not before us. The judgment of the court of first instance in the rent-suit is also not on record. In the absence of these documents it is not possible to say whether the parties were at issue on the question that their relationship was of a khatedar-tenant and sub-tenant but from the decision of the learned Additional Commissioner it is clear that the respondents were not held khatedar-tenants. The decision does hold that the appellant was a sub-tentant of the 'izaredar' and this finding is, in our opinion, binding by the principles of res judicata on the parties and the two Courts were within their rights in holding that the appellant was a sub-tenant of the 'izaredar' but since as held above an 'izaredar' is not a tenant this finding does not authorise the award of compensation to the 'izaredar' for loss of khatedari rights. In applying Sec. 19 (1) (b) the lower Court has, in our opinion fallen in error. On a perusal of sec. 19 (1) (b) and sub-sec. (2) of sec. 19 it will be observed that a tenant of khudkasht or sub-tenant shall not be regarded to have become the khatedar-tenant of his holding or part, as the case may be, until he has obtained the declaration envisaged by the sub section. In a case falling under clause (b) of sub sec. (1) of sec. 12 the tenant of khudkasht or sub-tenant is required within two years, of the appointed date, to apply to the Assistant Collector, having jurisdiction, for a declaration that such rights had accrued to him and if he has not obtained the declaration in the manner prescribed, he shall not be regarded to have become a khatedar-tenant. There is nothing to show that the appellant had applied in the prescribed manner and hence it cannot be said that he has acquired khatedari rights under sec. 19 (1) (b ). Since he has not acquired khatedari rights from the respondent because of the fact that he was a sub-tenant the respondent could not claim compensation from him under sec. 20 of the Rajasthan Tenancy Act. The decree and judgment of the lower Court awarding compensation under sec. 20, of the Act to the respondent is, in this view of the matter, not justified and hence the appeal is accepted and the decisions of the lower courts are vacated and the respondents' application under sec. 20 is rejected. . ;