- (1.) THIS is an appeal filed by the unsuccessful plaintiffs in both the lower courts. The brief facts of the case are as follows - Beera and Koka sons of Narayan filed a suit for declaration under sec. 101 of Jaipur Tenancy Act on 8-8-50 in the court of Sub-Divisional Officer, Jaipur. The plaintiffs pleaded that their father was in cultivation of the suit land and had expired in the year 1937 when they were minors. Their mother Bhaga executed a sale deed in favour of Fakruddin on 22-2-41 which she was not entitled to execute. Inspite of this sale deed the plaintiffs had been in continuous possession. They therefore prayed that they be declared as khatedar tenants of land and further prayed that the sale deed be held void and the mutation proceedings held illegal. The defendants denied the claim and pleaded that he had been put in possession through the above mentioned sale deed and further pleaded that a suitable amount had been spent on the improvement of the said land which had never been objected to by the plaintiffs. Afterwards Mst. Bhaga was also impleaded as party who pleaded that she had borrowed money in connection with the marriage of her son Heera and she affixed the thumb impression on the deed on the sole assurance of the defendant and under the bonafide belief that no mischief will be played on her.
(2.) AFTER proper enquiry the trial court held that the defendant is the recorded khatedar tenant of the suit land and the plaintiffs are the sub-tenants of the defendant. The suit was ultimately dismissed. The plaintiffs went in appeal before the learned Revenue Appellate Authority, Jaipur who also rejected the appeal. They have now come up in this second appeal before us. We have heard the arguments advanced by the learned counsel appearing on behalf of the parties. The main plea advanced on behalf of the plaintiffs is that the said sale, if any, was void under the then prevailing law of the Jaipur Chakbandi Rules. They had been in continuous possession of the land. Even if they are treated as sub-tenants then the Khatedari rights have already accrued to them through the amendment to sec. 19 of the Rajasthan Tenancy Act. The contention of the respondent defendant is that he had been put in possession of the property through a valid sale deed and as such he had been in possession for a very long period. The plaintiff had been admitted after a period of about 8 years as subtenants in the year 1944 and then in the year 1946 and lastly in the year 1949. Mst. Bhagga and Beera had accepted the relinquishment of their possession several times in their respective statements during the proceedings of sale, mutation at the time of executing the lease deed. They are now estopped to allege otherwise. The defendant further pleaded that they had no heritable rights over the suit land as per provisions of the then prevailing tenancy laws of Jaipur State. Though the Jaipur State Chakbandi rules have no legal force now but they had the force of law at that time. Let us therefore see what rights they had bestowed on the tenants. According to the provisions of sec. 4 of the Jaipur Chakbandi Rules it is laid down that after the death of a tenant the heir could retain possession for 5 years and at the end of 4th year the Tehsildar should report the matter to the Nazim either to confirm the right of tenancy on the heir or to auction out the culti-vatory rights. It is borne out from the records and which has not been denied by by any party that neither the land was taken away from the heirs of the deceased as per provisions of law by the Revenue Department to the defendant. As per provisions of sec. 24 of the Jaipur Chakbandi Rules no tenant had any right to sell out the land. It therefore clearly shows that neither the defendant was in lawful possession of the disputed land nor the plaintiffs were recorded as Khatedars of the land after the death of their father. The contention of the plaintiff that they were minors when the sale deed was executed is therefore of no avail as they are not applicable to the present case. All the citations therefore advanced by the learned counsel of the plaintiff and those of the defendant in rebuttal are of little value. From 1937 to 1944 the recorded entries in the Khasra as per statement of the Office Kanungo stand in favour of the plaintiffs but the plaintiff Heera had admitted himself that the suit laid remained in cultivating possession with Brijlal for six years after the death of his father and then for 2 more years with Bheru and Mangal. From the year 1944 the plaintiffs have been in continuous cultivatory possession of the land but the mutation in favour of the defendant had been effected by the then Tehsildar Jaipur in the year 1940 on the basis of a registered sale deed. The entries in the Khasra Girdawari are still in favour of the plaintiffs. The plaintiffs took the land on lease from the defendant in which no period of lease was specifically mentioned. On 12-10-44 vide Ex. D. 35 the deed was renewed 12-12-46 raising the lease money from Rs. 50/- to Rs. 100/- and the lease period was specified for 5 years only. In the meantime Koka who was the younger brother of Heera separated himself and another agreement Ex. D. 8 was executed between Heera and Fakruddin on 7-8-49 with the condition that the executor Heera will remain in possession as long as he continues to pay the lease amount and honours the conditions of the said lease deed. No time limit was provided for handing back the possession of the land to the defendant. Therefore it is amply borne out from the records that Heera and Koka remained in cultivatory possession of the land since 1944. The defendant respondent has frankly admitted that the plaintiffs are his subtenants and the learned counsel for the appellant has pleaded before us that as they have been held to be sub-tenant of the disputed land and they have been in cultivatory possession since 1944 they have acquired Khatedari rights by virtue of sec. 19 of the Tenancy Act and no formal pleading is necessary as required vide sec. 19 (2) of the Act. The learned counsel for the respondent-defendant pleaded that since the plaintiffs have admitted that they have not yet been recorded as sub-tenants therefore the the provisions or sec. 19 sub-sec. (2) is mandatory and they will have to apply for declaration of their rights within limitation. Therefore the important point is whether in absence of any formal request as required vide sub-sec. (2) of sec. 19 Khatedari rights can accrue to the plaintiffs or not. This is admitted that the plaintiffs are not entered as sub-tenants. The plain was filed under sec. 101 of the Jaipur Tenancy Art of 1945 which requires that any person claiming to be a tenant and desiring to be declared as tenant will have to file a proper suit. Similarly sub-sec. (2) of sec. 19 of the Rajasthan Tenancy Act requires that each tenant who was not entered but was sub-tenant claiming that the rights mentioned in sec. 19 (1) of the Act accrued to him should apply for it within the prescribed period. Going through these two provisions carefully there is no doubt that both the provisions of law have the same substance barring the point of limitation and proper court fee. Any person claiming declaration under sec. 10 of the Jaipur Tenancy Act need not apply afresh under the Rajasthan Tenancy Act, when the suit was pending and the rights of the applicants have not been affected by the new law i. e. the Rajasthan Tenancy Act. Mere change of law keeping the rights in tact does not debar a plaintiff to get relief. Under these circumstaces, in our opinion, the plaintiffs need not apply afresh in addition to their suit under the provisions of sub-sec. (2) of sec. 19. The benefit which they are legally entitled to must be given to them. In face of the admitted position of the sub-tenant they deserve to be declared the Khatedar tenants. We therefore allow the appeal and decree the suit and declare the plaintiffs Khatedar tenants of the suit land. Cost will be easy. Shri Gajendra Singh - I concur with the conclusion arrived at in the decision of this second appeal with my learned brother, but on entirely different grounds. The facts in this case are admitted that the suit land was in the cultivation of one Narain who died in year 1936. He was survived by his two sons Hira and Koka and his widow Shrimati Bhagga. The suit land was sold by a registered sale deed to the defendant Fakruddin in February, 1941 by Shrimati Bhagga and the land was mutated in his name, but the plaintiffs continued to remain in possession of the suit lands as tenants and this was the position on 8-5-1950 when the present declaratory suit was filed. It is, therefore important to consider whether the sale of the suit land by Shrimati Bhagga transferred any interest in the land to Fakruddin defendant. In this connection one has to examine the rights and liabilities of the parties to the sale transaction with reference to the tenancy law in force then. It is not denied that under the Chackbandi rules when Narain held this tenancy of the suit land the tenancy was no doubt heritable up to 5 years after the death of the last holder. Thereafter it has either to be taken over on application by heirs of the deceased or else the Nazim who had the power to transfer the land to other person. Thus after Narain's death the suit land continued to remain in possession of his heirs undisturbed upto 1941. Under the Chackbandi rules no tenant had any rights to alienate the holding in any manner. It means the tenants under the Chackbandi rules had no transferable rights. Clearly, therefore when Shrimati Bhagga executed a sale deed in favour of Fakruddin defendant she was incapable of passing any title to the defendant Fakruddin as she had no transferable or saleable rights. Consequently Fakruddin did not acquire any title by sale of the land and was thus not in a position even to create sub-lease of the suit land alleged to have been sold to him. Thus the sale transaction made no change in the status of Hira, Koka and Bhagga who continued to remain in possession of the land in question. Jaipur Tenancy Act came into force in 1945 which recognises 3 classes of tenants namely: - 1. Pattadar, 2. Khatedar and 3. Gair Khatedar tenants. The Pattadar tenants' rights were heritable but he had no power to transfer the land except to agriculturists or a co-sharer. Transfer to a non-agricultrist was prohibited. Fakruddin was apparently a non-agriculturist and no land could be sold to him even after 1945. It is not the case of the plaintiff appellants or that of the defendant that the plaintiffs were the pattadar tenants of the land and therefore no sale could be made by them under the Jaipur Tenancy Act. A Khatedar tenant under the Jaipur Tenancy Act had heritable right but only a restricted right of transfer by way of usufructuary mortgage or ordinary mortgage without possession. Here again plaintiffs are not even Khatedar tenants and they could not even mortgage. Leaving aside their right to sell the property in order to become a Khatedar tenant under sec. 8 of the Jaipur Tenancy Act, a person who was a tenant of the land at the commencement of this Act became the Khatedar tenant. Apparently the plaintiff has not received any formal Parcha of that Khatedari tenancy under sub-sec. (2) of sec. 8 of the Jaipur Tenancy Act and therefore the status of the plaintiff being a Khatedar tenant is completely ruled out. They could at the most be Gair Khatedar tenants having heritable but no transferable rights. Thus at the time when the suit was filed the plaintiffs were merely Gair Khatedar tenants in 1950 but it was not possible for them to convey the suit land to the defendant Fakruddin by its sale as they had no such right to transfer the land under the then prevailing Jaipur Tenancy Act, 1945. While the suit continued Rajasthan Tenancy Act came into force in 1955 and the plaintiffs clearly being Gair Khatedar tenants of the suit land, in my opinion, they acquired Khatedari rights under sec. 15 of the Rajasthan Tenancy Act and they are entiled to be declared as such in the present suit. Sec. 19 of the Rajasthan Tenancy Act has no application whatsoever.
(3.) THUS I agree with my learned brother that the appeal be allowed and the suit of the plaintiff be decreed. .;