- (1.) THESE are four writ petitions under Article 226 of the Constitution of India and are directed against the judgments of the Revenue Board whereby the revision applications arising out of proceedings relating to preparation of record of rights in respect of certain lands, in the course of settlement operations, were dismissed. As the writ petitions are more or less of identical nature and common questions of law are raised therein, it will be convenient to dispose them of together.
(2.) WE may mention the facts as contained in writ petition No. 101/61 for the purpose of appreciating the points that arise for consideration before us. The petitioner Hussain Beg was a co-sharer muafidar in village Makbara, Tehsil Toda Bhim, district Sawai Madhopur. The land of Khasra No. 25 which is in dispute measures 4 bighas and 12 biswas and covers two fields. In the revenue records these fields were entered as 'makbuza Panodar' Jagirdar. In September, 1913 when Settlement operations were going on, the name of one Bhagwatilal was entered as a person in possession as mortgagee. It is the case of the petitioner that there were fruit trees on the boundries of the two fields and they were planted by Bhagwatilal and Kishorilal or their ancestors, and out of the produce of the trees the petitioner used to take 1/3 share whereas 2/3 share was retained by Bhagwati Lal and Kishori Lal. Bhagwati Lal and Kishori Lal or their ancestors are said to have planted these trees some 30 years ago. Sometime later, the petitioner had pledged the right to take 1/3 share of the produce with Bhagwati Lal and Kishorilal but that pledge was, according to the petitioner, redeemed in due course. On or about 3. 8. 50, respondent No. 4 Chhotey Khan is said to have purchased the trees on the land from Kishorilal and accordingly Chhotey Khan became liable to give 1/3 share of the produce of the trees to the petitioner. Chhotey Khan, op the other hand, claimed that the 1/3 share of the petitioner in the produce of the trees continued to be pledged with him, but regarding the existence or the redemption of the pledge there is no dispute before us. It is averred by the petitioner that as the trees were located on the boundaries of the fields he used to cultivate the remaining vacant space of the land and also used to take its natural produce such as grass or 'pala' (bush leaves ). During the course of settlement operations respondent No. 4 Chhotey Khan applied before the revenue officials for entering his name as Khatedar in the record and on 13. 9. 53 the Assistant Settlement Officer passed an order for entering his name in the record as a Khatedar tenant. On 14. 9. 53, the entered a caveat before the Assistant Settlement Officer whereby he questioned the correctness of the entry in favour of respondent No. 4 Chhotey Khan and prayed that his name be removed from the record and the petitioner be recorded as a Khatedar tenant instead, inasmuch as the land was the Knudkasht of the petitioner. This dispute was enquired into by the Assistant Settlement Officer-cum-Assistant Record Officer, Kota, who after taking the evidence of both the parties came to the conclusion that there was no ground for modifying the entry already made. He held that the trees belonged to respondent No. 4, who had been paying 1/3 share of the produce thereof to the petitioner and therefore, his status was that of a Khatedar tenant. The learned Assistant Settlement Officer took note of the fact that there were 76 big trees on the land out of which 70 were mango trees and 6 were pipali 'jamun' 'neem' etc. Further there were 26 pits made ready for planting more trees therein out of which there were 18 saplings still in existence. The Assistant Settlement Officer also held that "the contention of the non-applicant (present petitioner) that they did cultivation in this land was untenable. It was further observed by him that "the land was 'banjar' and has been recorded as such He also observed that even if the muafidars be doing some scratching of the ground and growing some fodder, the holding will still be held to be a grove land. In these circumstances he ordered that the land should continue to be entered in the khata of respondent No. 4. He examined in this behalf the provisions of sec. 44 (3) of the Jaipur Tenancy Act and held that "as mango trees were planted on the land rent was chargeable on the land and not on the basis of trees. " In the end he directed that the rent be fixed according to the class of the soil. He repelled the suggestion of the petitioner that respondent No. 4 Chhotey Khan had interest only in trees, but had no interest in the land except that of growing trees thereon. He did not accept the suggestion that the possession of respondent No. 4 was only that of a licensee. Against the order of the Assistant Settlement Officer, the petitioner went up in appeal to the Additional Collector, Sawai Madhopur, who affirmed the judgment of the Assistant Settlement Officer and dismissed the appeal. The petitioner then went in revision to the Board of Revenue for Rajasthan at Ajmer. The case was heard by a bench of the Board consisting of Sarvashri Kanwar Bahadur and R. N. Hawa, members. Shri Kanwar Bahadur held that the respondent No. 4-Chhotey Khan was entitled to get a 'parcha' wherein he should be entered as a Khatedar and consequently the revision petition was directed to be dismissed. The other learned member Shri R. N. Hawa, however, dissented and came to the conclusion that the petitioner was the Khudkasht holder of the land and was, therefore, entitled to be recorded as a Khatedar tenant. Accordingly, he was of the view that the revision was fit to be accepted and the disputed land should be ordered to be made in the name of the petitioner by striking out the name of respondent No. 4 Chhotey Khan. The two members also differed regarding the effect of the resumption of the muafi land in the meantime on 29. 10. 54, by virtue of Rajasthan Land Reforms and Resumption of Jagir Act (Act No. VI), 1952. Shri Kanwar Bahadur held that with the resumption of muafi land the right, title and interest of the petitioner therein came to an end and consequently he could not maintain an application for correction of entries in the record of rights. On the other hand, Shri R. N. Hawa held that the resumption of the muafi cannot put an end to the rights of the petitioner as a Khudkasht holder and he was entitled to maintain the petition. The matter then went before the Chairman of the Board, Shri Shyamlal, as a third member. The learned Chairman agreed to the view taken by Shri Kanwar Bahadur and the result was that on the basis of the majority opinion the revision was rejected by the Board. The petitioner has strenuously challenged before us the majority view of the Board and has placed reliance on the opinion recorded by Shri R. N. Hawa. It has been urged before us that no specific findings have been given by the revenue authorities including the Board regarding the cultivatory possession, over the said fields, of the parties. It is further urged that it has been wrongly held by the Revenue Board, merely on the basis of the existence of the trees, that the respondent No. 4 was in possession of the field. It has also been urged that the learned Chairman has not dealt with the matter properly, as he did not express in clear terms any opinion on the point on which the other two learned members differed namely, that according to one member Shri Kanwar Bahadur the respondent No. 1, could be held to be in possession of the holding as he was in possession of the trees, whereas according to the other learned member Shri R. N. Hawa, this could not be so, as there was evidence regarding the cultivatory possession by the petitioner over the land where trees were not growing. It was then argued in the alternative that the revenue authorities were clearly in error in applying the provisions of the Jaipur Tenancy Act to a grove land. If the land in dispute were held to be a grove land as was done by Shri Kanwar Bahadur then the definition of the term 'land' as given in the Jaipur Tenancy Act would not cover a grove land according to the petitioner with the result that there could be no tenancy rights in favour of the respondent No. 4 over the grove land and the only right that the respondent No. 4 could claim would be in respect of a share in the produce of the trees; the right, title and interest in the land itself remaining with the petitioner. According to the petitioner the revenue authorities had exceeded their jurisdiction when they resorted to the provisions of the Jaipur Tenancy Act in ordering the entries in favour of the respondent No. 4, specially when they came to the conclusion that it was grove land. As regards the grove lands, it is contended, the provisions of the general law would apply and the provisions of the Jaipur Tenancy Act would not apply. It is, therefore, prayed that as the revenue authorities had dealt with the case on a mistaken view of law and had not determined the question about the cultivatory possession over the fields, the judgments be quashed and the case be sent back for proper proceedings in the light of the correct position of law which should be laid down by this Court. The writ petitions are opposed by the respondents and it is urged by them that this Court should decline to deal with the matter in exercise of its extraordinary jurisdiction under Art. 226 of the Constitution as the matters regarding entries in the record of rights are disposed of by a summary inquiry and such making of entries does not result in final determination of the rights of the parties who are still free to get them determined through the agency of revenue courts, by a suit. As regards the plea that the petitioner was in cultivatory possession of the land it is urged that it is for the first time in this Court that the petitioners aver that all the trees are located on the boundaries of the field and the space within the boundaries is available for cultivation and was accordingly cultivated by the petitioners. The respondents also join issue on the question of the applicability of the provisions of the Jaipur Tenancy Act to grove lands. It is contended by them that the definition of the term land' is not exhaustive and on a proper consideration of the scheme of the Act the term 'land' can be taken to include grove land as well. It is further argued that the matter could properly be dealt with by the revenue officers, as the petitioner himself approached them with the case that he was in cultivatory possession of the fields and on his own showing the holding is an agricultural one and this could properly be taken note of in preparing the record of rights and issuing 'pachas' on the basis thereof. Before we deal with the points raised by the petitioner it will be convenient to mention the relevant statutory provisions. In respect of the tenancies in Jagir areas and for the rights of the tenants therein in the former Jaipur State there was the Jaipur State Grants Land Tenures Act, 1947, hereinafter to be referred as the '1947 Act' for brevity. Sec. 4 (2) of 1947 Act provides that the terms 'agriculturist', land' and 'rent' (omitting terms which are not applicable) shall have the same meaning as provided in the Jaipur Tenancy Act, 1945, hereinafter to be referred for brevity as the '1945 Act'. The term 'tenant' has been defined in 1947 Act to mean the person by whom rent is, but for a contract, express or implied would be payable and except when the contrary intention appears includes a sub-tenant. This definition of the term 'tenant' is almost the same as that given in the 1945 Act with this difference that the 1945 Act excludes an ijaredar from the purview of the definition, whereas 1947 Act does not so exclude it. The term 'agriculturist' has been defined in sec. 4 of the 1945 Act to mean any person whose livelihood is derived wholly or mainly from cultivation of the soil by himself or with the aid of his own family or hired labour.
(3.) THE term 'land' has been defined in this Act to mean land which is let or held for agricultural purposes. The term 'rent' has been defined to mean whatever is, in cash or kind, or partly in cash and partly in kind, payable on account of the use or occupation of land or on account of any right in land and includes 'sayar'. The present dispute about the making of entries and issuing of 'parcha' arose during the course of settlement operations while preparing the record of rights and it will be material to consider the effect of secs. 57, 58 and 59 of the 1947 Act and, therefore, they too are reproduced below: "sec. 57. Determination of class of tenant - (I) case of any dispute respecting the class of tenure of any tenant, the record officer shall decide according to the principles laid down in Chapter II. (2) In the trial of disputes under this section, the record officer shall observe the procedure prescribed for the trial of suits under this Act. Sec. 58. Procedure when rent payable is disputed - In case of any dispute regarding the rent payable by any tenant, the record officer shall not decide the dispute, but shall record, as payable for the year in which the record of rights is framed, the rent payable for the previous year, unless it has been enchanced or abated by a decree order or agreement under this Act. In Sec. 59. Settlement of disputes as to entries in record of rights - (1) All other disputes regarding entries in the record of rights shall be decided on the basis of possession. (2) If in the course of inquiry into a dispute under this section the record officer is unable to satisfy himself as to which party is in possession, he shall ascertain by summary inquiry who is the person best entitled and shall put such person in possession. (3) No order as to possession passed under this section shall debar any person from establishing his right in any revenue court having jurisdiction. " It has been urged by the petitioner that as the respondent No. 4 had only a right to the produce of the trees and had no right in or over the land the revenue officers were in error in making an entry in the record that the respondent No. 4 was a Khatedar tenant. It was emphasised that the definition of the term 'land' as given in the 1945 Act is limited to land which is let or held for agricultural purposes or for purposes subservient thereto, and will not include a grove land. Reliance was placed on Kesho Prasad Singh vs. Shiva Prasad Ojha in this behalf (1 ). It was pointed out in that case that the definition of the term 'land' in the Agra Tenancy Act of 1901 did not cover grove land with the result that the period of limitation for suits provided under sec. 179 of the Agra Tenancy Act was not applicable to suits for possession of grove lands and the limitation thereof would be governed by the general law of limitation. The matter that directly arose for determination in that case was whether a decree in a suit filed by one of the reversioners for setting aside an alienation by the Hindu window was not only binding on the reversioner who brought the suit, but also bound the whole body of reversioners because the reversioner who brings the suit does so in a representative capacity for the protection of the estate. No reversioner can be thought to claim through another, but as the reversioner who brings the suit does so in a representative character, the decision in the suit would be res judicata against all the reversioners. We could not look into the previsions of sec. 179 of the Agra Tenancy Act, 1901, as the parties could not lay their hands on it. ;