- (1.) THE facts giving rise to the filing of this revision petition by numerous petitioners are that the petitioners are admittedly sub-tenants of the respondents Mst. Aphia and Mst. Saphia. On their claiming that they have acquired khatedari rights in pursuance of Sec. 19 of the Rajasthan Tenancy Act mutations were being ordered by the Tehsildar, Tonk, by transferring the khatedari rights to the petitioners. THE respondents filed an objection petition that by virtue of sec. 46 of the Rajasthan Tenancy Act, no khatedari rights could be acquired against them. THE Tehsildar summarily rejected the application on 14. 4. 60 against which an appeal was preferred before the Collector, Tonk who by order dated 24. 6. 60 accepted the appeal of the respondents, quashed the order of the Tehsildar and issued directions that after making enquiries under the provisions of sec. 46 of the Rajasthan Tenancy Act, relating to the rights of the respondents the Tehsildar should pass fresh orders. Accordingly the Tehsildar on remand tried the case and came to the conclusion that the two lady respondents were separated women from their husbands and were incapable of cultivating the land personally, rejected the mutation proceedings made in favour of the petitioner. Aggrieved by this order the present petitioner Chheetar, Kishna, Ramnath and 11 others filed an appeal before the Collector Tonk who by the impugned order rejected their appeal, hence this revision.
(2.) THE counsel for the petitioner raised many contentions against the impugned order. His first contention was that the two respondents cannot be considered as separated wives from their husbands. This has neither been proved nor it has been established before the subordinate Courts that the two women respondents were judicially separated from their husbands. Before a woman can claim, that the law does not impose any restriction on sub-letting within sec. 46 of the Rajasthan Tenancy Act she has to establish that she was separated from her husband in a judicial manner. No enquiry by the lower Court seems to have been done, that those two ladies were judicially separated within the meaning of the Muslim Law. Secondly, there is no thing on record to show that these two women were suffering from physical disability or infirmity and were persons incapable of cultivating the holding as a reason thereof within the meaning of the aforesaid section. This physical disability as laid down in R. R. D. 1942 p. 427 must exist at the time of the sub-letting and not at a later date. THE provisions in the U. P. Tenancy Act are similar to those of the Rajasthan Tenancy Act as contained in sec. 45 and 46. Thirdly, the counsel contended that there is nothing to show that the mutation orders were sanctioned by the Tehsildar after due enquiry from the interested parties. Separate orders of mutations should have been passed by the Tehsildar in each case instead of treating the cases of all the tenants into one order. The counsel for the respondents also conceded that as far as the mutation orders were concerned which were made by the Tehsildar were not made after hearing the respondents' case. In fact it was by chance that the respondents came to know of these matters and they filed the objection for these mutations being made in favour of the sub-tenants granting khatedari rights over the respondent's land. Yet the Tehsildar wrongly rejected their applications. But he, however, pointed out that there are number of sub-tenants and if the respondents are called upon to fight each individual case it will cast a heavy burden on the respondents and therefore he prayed that on remand the cases should be consolidated as far as the question of deciding the benefits of sec. 46 of the Rajasthan Tenancy Act are concerned. Further the sub-tenants who have already given their consent that they would not acquire khatedari rights against the respondents no enquiry should be instituted. I have considered the arguments advanced from both sides and examined the record. It is clear from the record that the Tehsildar started mutation proceedings relating to the lands belonging to the respondents for transferring khatedari rights in favour of the petitioners and others without even giving notice to the respondents. Before the status of a tenant can be altered an agreement of all the parties or the decree or an order of a Court is necessary. There can be third manner on which the mutation could be ordered is by operation of law. No doubt sec. 19 confers khatedari rights on sub-tenants who were entered in the record of right on the date the Rajasthan Tenancy Act came into force i. e. on 15. 10. 1955. Thus by operation of law all such classes of tenants are entitled to claim this right, but at the time of granting this right it is imperative and natural justice demands that the person affected by such right, should be given the opportunity of being heard and putting up his case before the transfer of khatedari rights could be made in favour of such persons who are entitled to khatedari rights by operation of law. The respondents have alleged that because of their separation from their husbands and their physical disability and infirmity they were entitled to retain the khatedari rights and no sub-tenants could acquire such rights against them. This aspect of the case was not at all examined by the Tehsildar in a judicial manner and orders were passed ex parte against them. Naturally and rightly these orders were set aside by the Collector in the impugned order. But it is evident that the full enquiry relating to the conditions under which respondents could respondent could retain their khatedari rights under sec. 46 of the Rajasthan Tenancy Act has not been fully enquired into by the Tehsildar in the presence of interested parties i. e. the sub-tenants. Further as rightly contended by the counsel for the appellant any disability attaching to a person falling under sec. 46 of the Rajasthan Tenancy Act must exist at the time when the Rajasthan Tenancy Act came into force i. e. on 15. 10. 55 and not subsequently. As there was no law of such nature prior to the Rajasthan Tenancy Act it cannot be said that this disability as pointed out in R. D. 1942 page 407 must exist at the time of sub-letting unless of course the Tonk Revenue Law had a separate provision which needs further examination. It is also clear that in this case number of tenants have been grouped together and orders have been passed in one single case. Separate orders have been passed in one single case. Separate orders should have been passed by this Tehsildar as rightly contended by the counsel for the petitioner, but the question which are common against all the sub-tenants that is the question of separation of the respondents from their husbands and physical disability or infirmity should be jointly enquired into and for that purpose the cases should have been consolidated. From these reasons I find that the order of the the subordinate Courts is patently erroneous and illegal and deserves to be set aside. I, therefore, accept the revision petition of the petitioner, set aside the impugned order of the Collector, Tonk as well as of the Tehsildar, Tonk rejecting the applications of the respondents for enquiry before granting khatedari rights to the petitioner sub-tenants as well as his previous order regarding actual grant of khatedari rights, through mutations to the petitioners and direct that a further enquiry should be made in the manner suggested above between the parties and after hearing them the Tehsildar should pass fresh orders. .;