- (1.) THIS is a revision application under Sec. 10(2) of the Rajasthan (Protection of Tenants) Ordinance, 1949, against an order of the S. D. O. Sironj, dated 13-4-55, granting protection to the opposite party under Sec. 7 of the Ordinance.
(2.) WE have heard the learned counsel appearing for the parties and have examined the record as well. The opposite party applied before the lower court for reinstatement under Sec. 7 of the Ordinance with the allegations that the land in dispute (Khasra No. 328, village Bagroda, Tehsil Sironj) is in the Khatedari of Ikram Ali (applicant) that Narain Singh has been cultivating the same as a sub-tenant since a decade and that on 5-11-54 he was dispossessed wrongfully. This claim was denied by the applicant and it was pleaded by him that the opposite party had never been in possession of the land in dispute, that the opposite party trespassed wrongfully on the land in August, 1954, that an action for criminal trespass was brought against him in the Panchayat Court which resulted in the conviction of the opposite party and that thereafter possession was duly transferred to him under orders of the Panchayat. The lower court after recording the evidence of the parties came to the conclusion that the opposite party was dispossessed wrongfully and hence reinstatement was granted to him. We have carefully perused the judgment of the learned lower court. It is apparent therefrom that the lower court allowed itself to be influenced by the consideration that as the Patwari was suspected of manipulations in the case the plea of the applicant deserved outright rejection. This is evidently a wrong approach to the case. The Patwari may or may not be guilty of undesirable activities. But the applicant can by no stretch of imagination be held responsible for the doings of the Patwari or can be suspected of being party to it unless it could be so established by clear evidence. In fact the lower court almost omitted to examine as to whether the opposite party had been able to establish his case or not and appears to have been under the impression that the actions of the Patwari were enough to warrant a finding in favour of the opposite party. There can be no logical sequence between these two unconnected facts. We have therefore to examine for ourselves the evidence to determine the point at issue, There are certain outstanding features of the case which are beyond the scope of any controversy. It has been admitted by the opposite party that the entries in the revenue record do not at all support his case. The opposite party is now here shown as being a sub-tenant of the land in dispute. In fact his name does not at all appear in any of the preceding year. No patta that may have been granted to him has been produced by the opposite party in the case. Similarly, no rent receipt has been produced by him. It is also admitted that the opposite party was tried for criminal trespass by the Panchayat court in respect of the land in dispute and was convicted by it. No satisfactory explanation has been offered as to why opposite party did not take any steps for his name being recorded in the Gasht Girdawari nor has any satisfactory evidence been adduced by the opposite party as regards his admission to sub-tenancy by the applicant. The oral evidence led by him is also open to serious objection. Daryab Singh has stated that a Panchayat was held in the matter and that its proceedings were reduced to writing and that the document was handed over to Ram Narain. Strangely enough, neither Ram Narain is produced in the case nor the document which was alleged to have been written in the Panchayat. This evidence can hardly discharge the burden of proof that lay heavily on the opposite party. We have purposely kept the evidence of the two Patwaris for the last. Azizullah was examined by the opposite party and Kamalud did by the applicant. Azizullah has stated that the name of the opposite party has no where been entered as a Shikmi in the Khasra. The explanation for the commission offered by him is that in case of parat fields entries about Shikmi are not made. This is hardly correct. The instructions of the Land Records Department are to the contrary. Kamaluddin Patwari has clearly stated that the entries about Shikmis are made as they facilitate the realisation of rent. Receipt Ex. P. 1 was issued by Kamaluddin Patwari in respect of this land wherein Narain Singh opposite party appears as a payer. As is clear from the statement of Kamaluddin, Narain Singh himself stated that he was liable to pay rent for the land and on this account he realised the rent from him. Subsequently it seems he realised his mistake and thereafter collected the amount from the person legally entitled to pay. The act of the Patwari is certainly objectionable but it may be due either to sheer ignorance or deliberate mischief. Even if it proceeded from mischief it would evidently be to help the opposite parly and certainly not the applicant. For this action of the Patwari the applicant can hardly be penalised nor can any inference adverse to him be drawn in the case. Thus the result is that there is hardly any evidence on record on the basis of which the opposite party can be held to be a subtenant of the land in dispute. The order of the lower court is therefore clearly untenable and against the evidence on record. We would, therefore, allow the application, set aside the order of the lower court and direct that the application for reinstatement presented before it by the opposite party shall stand rejected.;