- (1.) THIS is an application in revision under sec. 10 (2) of the Rajasthan (Protection of Tenants) Ordinance, 1949, against an order of the S. D.O. Bayana dated 30.11.54 refusing to grant protection to the applicant under sec. 7 of the Ordinance.
(2.) I have heard the counsel for the parties and have also examined the record of the case. The main contention of the applicant is that he was admitted to tenancy in Svt. 2009 by the opposite party No. 3, Shivkant, and that in the following year i.e. Svt. 2009 he was accepted as a tenant by the opposite party No. I and 2 and as such the opposite party had no right to dispossess him of his tenancy. It is clear from the record that the opposite party No. 1 and 2, Moola and Sravan, filed a suit for declaration of occupancy rights against the opposite party No. 3, Shivkant, as early as 1st March, 1951. Subsequently in 1952 an amendment was sought in the plaint to the effect that Moola and Sarvan had been dispossessed of the land in dispute by Shivkant and should therefore, be put back in possession. This Suit for declaration of occupancy rights and recovery of possession was decreed on 8.1.53. In execution of this decree Moola and Sarvan were put back in possession of filed No- 185 on 9.5.53 and of filed No. 386 on 26.2.54. It is also clear from the record that actual possession by ploughing the land on the spot was delivered to the opposite party No. 1 and 2. The present applicant filed an application for recovery of possession of the same land under sec. 7 of the Rajasthan (Protection of Tenants) Ordinance alleging that he had been dispossessed by opposite party on 6.6.54. The trial court found that the applicant was not dispossessed on 6.6.54 as alleged by him but that since the actual possession of the land has been transferred to the opposite party Moola and Sarvan on 26.2.54, his application computed from that date was beyond the prescribed limitation of three months. The S.D.O. therefore, dismissed the application. Hence this revision. It is an admitted fact that the applicant was admitted as a tenant of the land in dispute in Svt.2009 when the suit of the opposite party No. 1 and 2 which Was filed in Svt. 2007 against the opposite party No. 3 was still pending. It is therefore, clear that the applicant was not admitted as a sub tenant of Moola and Sarvan but as a sub-tenant of Shivkant. When a decree for recovery of possession was passed against Shivkant, the latter as well as those who claimed their interest through him were bound by the decree. The applicant claims his possession only under a title created by the defendant subsequent to the institution of the suit and therefore, the opposite party No. 1 and 2 were entitled to be put in actual possession by removing, the person bound by the decree, (including those claiming interest through him) and refusing to vacate the property. The applicant, however alleged that he had been accepted as a tenant by the opposite party No. 1 and 2 in Svt. 2010 and had paid rent to them. He failed to substantiate this plea. He produce only a receipt for payment of rent direct to the Government but no receipt for payment to the opposite party Moola and Sarvan was produced by him as originally claimed. No doubt the applicant's name appears in the girdavari of Svt. 2010 in respect of the land in dispute, but the entries in the gasht girdavari do not carry any presumption of truth with them like the annual record and in the face of overwhelming evidence, to the contrary the lower court was justified in not placing much reliance on them. To establish a tenancy two conditions must concur, viz. (1) a right to enter upon and possess the land and (2) an entry into possession. It is upon the entry and not before that the person possessing the first essential becomes a tenant. Thus the test whether having the right to enter upon and possess a particular land as tenant he has or has not actually entered into possession in pursuance of that right. This entry can be either direct or through a tenant including a sub-tenant. A person who fails to satisfy either of these conditions does not come under the definition of a tenant. For attracting the provisions of sec. 7 of the Rajasthan (Protection of Tenants) Ordinance, an applicant must prove that he was in possession of the land in dispute as a tenant and had been dispossessed thereof within three months next preceding of the filing of his application. As the applicant could not prove that he was a tenant in possession immediately before the alleged dispossession nor could be prove that dispossession had actually taken place on 6.6.54 as alleged by him, the lower court was justified in rejecting his request for reinstatement. There is thus no force in this revision which is hereby rejected.;