- (1.) THIS is a revision application under sec. 10 (2) of the Rajasthan (Protection of Tenants) Ordinance, No. IX of 1949, against an order S.D.O. Banswara, dated 31.8.54 refusing protection to the applicant under sec. 7 of the Ordinance.
(2.) THE applicant, Shri Mangla filed an application in the lower court against Maharawal Chandra Veer Singh of Banswara and 13 others, opposite party, with the allegations that he had been in the cultivatory possession of the land known as gumball, hutariya and umripari tukri of bagichi dailab pichhorba as a tenant of the Maharaval Sahib since a number of years; that the said Maharaval sahib and the other non-applicants prevented him from sowing the last crop, and wrongfully dispossessed him from this land. He therefore, prayed for reinstatement under sec. 7 of the Ordinance. The opposite party, Shri Maharaval Sahib of Banswara contested the claim on the following grounds: - (i) that the Ordinance was not applicable to the land in dispute which exclu-sivcly belonged to him as his private property. (ii) that he had employed the applicant as one of his hired servants to look after the palace gardens and allowed him half the produce of the land in lieu of wages, and that no relationship of a landlord and tenant ever existed between the parties. (iii) that the land in question was not an agricultural land as defined in the Rajasthan (Protection of Tenants) Ordinance, but was land appurtenant to the palaces and other buildings within the fourwalls of compound. It was therefore, urged before the trial court that as the Rajasthan (Protection of Tenants) Ordinance, 1949, was not applicable to such lands, the application should be dismissed. The S.D.O. after making necessary enquiries observed that the land in question was proved to have been included in the private property of the Maharawal Sahib of Banswara and that further from the oral and documentary evidence produced by the parties it was clear that the applicant was employed by the non-applicant as a hired servant to whom half the produce of the land was given in lieu of wages. He therefore, held that as the relationship of a tenant and landlord was not established and that the land in question was the private property of the opposite party, the applicant could not get any relief under sec. 7 of the Ordinance and accordingly he dismissed the application. Hence this revision. We have heard the learned counsel for the parties and have gone through the record as well. The first point involved for determination in the case is as to whether the land in dispute being included in the bagichi dailab which has been recognised by the Central Government to be the private property of Shri Maharawal Sahib. Banswara, is beyond the ambit of the Ordinance or not. Reliance has been placed in this connection on a decision of the Orissa High Court reported in A.I.R. 1954 Orissa Page 101: - The learned Chief Justice observed that: - "If I am right so far in my interpretations of the two Acts the conclusion must follow that the provisions of the Orissa Tenants Protection Act are inapplicable to the private lands of the petitioner. The adjudication of any such dispute concerning such land should be left to the special machinery set up under the Orissa Act 4 of 1950. The special Dy. Collector was, therefore, in error in calling upon the petitioner to restore possession of the lands to the opposite party and to show cause why he should not be fined." The two Acts referred to above are the Orissa Protection of Tenants Ordinance and the Orissa Merged States (Laws) Act 4 of 1950. While examining the various provisions of these Acts his Lordship was further pleased to observe as below: - "It will now be convenient to refer to the provisions of the Orissa Tenants Protection Act and see how far they are applicable to the merged State of Khandapara. The Act purports to provide temporary protection to certain classes of tenants in the Province of Orissa. This object has to be borne in mind in interpreting sec. 2 which defines the term 'tenant' to whom the Act would be applicable. Sec. 3 of the Act declares that a person who was cultivating any land us tenant on 1.9.1947 shall not be liable to eviction and shall be entitled to continue to have the right to cultivate such land. I have already pointed out earlier that the State of Khandapara became merged in the province on 1.9.1949 under the States Merger (Governor's Provinces Order 1949). It would be anomalous to hold that the Orissa State Legislature purported to legislate extra territorially in respect of an area which did not form part of the Orissa Province till 1.8.1949 and gave protection to tenants in such areas with effect from 1.9.1947. The argument adduced by the opposite parties that the State Legislature being competent to enact laws with retrospective effect, sec. 3 Orissa Tenants Protection Act should be held to have come into force in the merged State of Khandarpara from 1.9.47, the date from which the Act is deemed to have operated, appears to me to be fantastic and deserves no consideration whatsoever. On the other hand, the circumstances that led to the passing of the subsequent amending Act, namely, the Orissa Tenants Protection (Amendment) Act, 1951 (Orissa Act 17 of 1951) would indicate that the Legislature realised its mistake and made the Tenants Protection Act applicable only from the date of merger, namely, 1.8.1949." After a further examination of certain provisions of the 1951 Amendment Act his Lordship observed: - "These provisions make it absolutely clear that the Orissa Tenants Protection Act applies to the merged State areas only with effect from 1.8.1949 and that so far as the State of Khandapara is concerned any special law or custom prevailing therein has to be taken into consideration before the Act is applied." It would thus be clear from this judgment that the Orissa Protection of Tenants Act 1948 extended protection to tenants who were cultivating any land on 1.9.1947 in the Province of Orissa and as the State of Khandapara merged with Orissa on 1.8.1949 the Ordinance was held applicable to the area only with effect from the date. In view of a special provision contained in sub-sec. 5 of sec. 1 of the Amendment Act, 1951 any special law or custom prevailing therein had to be taken into consideration before the Act was applied. These factors are conspicuous by their absence in the present case. The Covenant of the United State of Rajasthan published in the Rajasthan Gazette Extraordinary dated 14.1.1950 may be examined in this connection. Art. VI runs as follows: - "(1) The Raj Pramukh of the former Rajasthan State shall make over the administration of that State on the seventh day of April, 1949,to the Raj Pramukh of the United State under this Covenant. (2) The Ruler of each new Covenanting State shall not later than the seventh day of April, 1949, make over the administration of his State to the Raj Pramukh and thereupon : - (a) all rights, authority and jurisdiction belonging to the Ruler which appertain of are incidental to the Government of the Covenanting States shall vest in the United State and shall thereafter be exercisable only as provided by this Covenant or by the Constitution to be framed thereunder ; (b) all duties and obligations of the Ruler pertaining or incidental to the Government of the Covenanting State shall devolve on the United State and shall be dischargad by it ; and (c) all the assets and liabilities of the Covenanting State shall be the assets and liabilities of the United State. (3) When id pursuance of any such agreement of integration as is referred to in clause (b) of paragraph (1) of Art. II the administration of any other State is handed over to the Raj Pramukh, the provisions of clauses (a), (b) and (c) of paragraph (2) of this article shall apply in relation to such State as they apply in relation to a Covenanting State." The next article to be examined is Art. X : - "(1) There shall be formed, as soon as practicable, a Constituent Assembly in such manner as the Raj Pramukh may, in consultation with the Government of India in the States Ministry, prescribe. (2) It Shall be the duty of the said Assembly to frame a Constitution for the United State within the framework of this Covenant and the Constitution of India, and providing for a government responsible to the legislature. (3) Until a Constitution so framed comes into operation after receiving the assent of the Raj Pramukh, the legislative authority of the United State shall vest in the Raj Pramukh who may make and promulgate. Ordinances for the peace and good government of the State or any part thereof, and any Ordinance so made shall have the like force of law as an Act passed by the legislature of the United State;, The Rajasthan (Protection of Tenants) Ordinance, No. IX of 1949, was promulgated by His Highness the Raj Pramukh on the 21st day of June, 1949. As Stated in the preamble,, this enactment was to make provisions for the protection of tenants in Rajasthan from ejectment or dispossession from their holdings and hence it was made applicable to the whole of Rajasthan. It would thus be clear that when the Ordinance was promulgated by His Highness the Raj Pramukh in the exercise of the legislative authority of the United State vested in him, Banswara was as much a part and parcel of the State as any other covenanting Unit. The Ordinance was made explicitly for the State in its entirety. The relied upon by the opposite party is, therefore, not applicable to the present case and we hold that the Rajasthan (Protection of Tenants) Ordinance is applicable to the land in dispute. The only class of lands exempted from the provisions of the said Ordinance are (i) lands belonging to persons who are in military employment of the Government or (ii) lands belonging to persons who were discharged from military employment of the Government after the corning into force of the Ordinance. The land in dispute does not come within anyone of the aforesaid exemptions and therefore, even if it is the private property of the non applicant, the provisions of the Ordinance shall apply to it. The other contention is as to whether the applicant is to be treated as a servant or tenant. The term 'tenant' has been defined in the Ordinance as meaning "a person by whom rent is payable, or would be payable but for a contract express or implied". The opening sentences of the document relied upon by the opposite party runs as follows : - "I, Ninama Mangra son of Bhagji, Bhil resident of Bari Dailab, do hereby present the document containing an agreement in the office of the Private Secretary that I agree to cultivate all the fields of bagichi Dailab which is the private property of the Ruler for one year only. After deducting the seed one moiety of produce of rabi and kharif crops will be deposited. The harvest shall be reaped after informing the employees of the palace." No two interpretations of this portion can be possible. The only inference is that by an act of the parties the applicant was admitted as a tenant of the land in dispute and was made liable to pay half the produce on account of" rent as agreed upon between the parties. In the latter part of the agreement it is also mentioned that the applicant's brother was employed in badal mahal and that the applicant would also be rendering service along with him, but instead of getting any salary he would be taking only half produce of the fields referred to above. The real intention of the parties is to looked into while interpreting the contents of the document. Two things emerge clearly from the agreement. The applicant was admitted as a tenant for one year and was to arrange himself for seed and manure. He was permitted to retain one half of the produce, the other half was to be paid as rent. It is true the penultimate paragraph of the agreement the words chakri and tankha were used. But the real intention of the parties is to be gathered from the entire text and some solitary words torn from the context can hardly give any indication of the real intention of the parties. We are, therefore, clearly of the opinion that the conditions agreed upon between the parties evidently created relationship of a land-holder and a tenant and the plea put up by the opposite party is, therefore, untenable. This brings us to the last point involved in the case. The contention raised by the opposite party is that the land in question being land appurtenant to the palace buildings standing in the bagichi cannot come within the ambit of the Ordinance. The term 'land' defined in the Ordinance excludes abadi land or land for the time being occupied by buildings or land appurtenant to buildings. The provisions of the U. P. Tenancy Act are also similar on the point. The word appurtenant thereto has not been defined anywhere. Shri Iqbal Ahmad J. held that this term has been used in India in a secondary sense as equivalent to such phrase as 'usually enjoyed with.' It means something adjunct to or the integral part of the holding. The material on record, however, is inadequate for definite finding on this point. It is not at all clear as to what is the entire area of the Dailab bagichi, what proportion is occupied by the building and how much area is under cultivation ? In the absence of this information we find ourselves unable to adjudicate on this point. We would, therefore, allow this revision, set aside the order of the lower court and remand the case back to it with the direction that the question as to whether the land in dispute can be regarded as appurtenant to the buildings or not, be enquired into and the case be decided afresh in the light of the observations made above. ;