- (1.) THIS second appeal has been filed by the plaintiff whose suit for declaration of occupancy rights under the provisions of the Bharatpur State Revenue Code was decreed by the S.D.O. Bharatpur, but was dismissed in appeal by the Additional Commissioner, Jaipur.
(2.) WE have heard the learned counsel appearing for the parties and have examined the record as well. As laid down in sec. 131 of the Bharatpur State Revenue Code a tenant who has continuously occupied the land for 12 years without a written lease is entitled to occupancy rights. In the naqsha Kasht barah sala from Svt.1997 to Svt. 2008, the appellant has been shown as being in possession of the land in dispute as a non occupancy tenant. The defendants contested the claim on the ground that the plaintiffs' possession was in the capacity of a Supurdgar and Quabiz and not as a tenant. The trial court found as a fact that the appellant was in possession as a tenant and that the subsequent abscondence of the proprietor which led to the supardgi of the appellant did not terminate the tenancy or the tenancy rights of the appellant. He, therefore, repelled the contention put forth by the respondents. In appeal, however the learned Additional Commissioner relying upon sec. 130 of the Bharatpur State Revenue Code held that tenancy rights could not accrue in favour of the appellant. Hence this second appeal. The evidence produced by the parties makes it perfectly clear that Kamal, father of the plaintiff, had completed 14 years continuous possession over the land in dispute, excluding 2 khasra numbers 412, and 413 only in, Svt. 1995 as can be easily gathered from the certified copy of the jamabandi of that year. This would mean that Kamal was in possession in Svt. year 1981 and onwards. The circumstances that led to the supardgi of this land with Kamal may be gathered from a certified copy of a mutation sanctioned by the Tehsildar Bharatpur on 10-6-42. It appears that file No. 12/187 biswat was started by the Tehsil on 4-9-39 upon the desertion of Malkan and Duleh Ram proprietors. The Deputy Collector directed that the deserting owners be regarded as Ghair Hazirs and Kamal as Quabiz on the understanding that the owners shall, on return, after settlement of accounts, be entitled to the recovery of their land. As apparent from this mutation on change was intended to be introduced in the then existing tenancy rights nor was it introduced by the Tehsildar in the columns intended for kashtkars which were left blank. The learned Additional Commissioner has observed that "from the statement of Kamal referred to above it appears that he became a transferee of the said land near about Svt. year 1989. Evidently, therefore, the respondent had not acquired occupancy rights up to the time the said haquiyat was transferred to him for management by the absentees." The learned Additional Commissioner has obviously failed to appreciate the true implications of this mutation. The proprietors prior to their desertion had admitted Kamal to the tenancy of the land in dispute. When they deserted Kamal was evidently the tenant of the land. Upon desertion the Tehsil made a temporary arrangement for the payment of land revenue which is payable by the land owner in accordance with the provisions contained in sec 124 of the Bharatpur State Revenue Code It cannot mean that this management amounted to a deprivation of the tenancy rights, which were then existing in favour of Kamal. It simply means that Kamal was temporarily made responsible for the payment of land revenue assessed upon the land to the State Government. In other words Kamal after the supurdgi continued to occupy double status. He was primarily a tenant of the land and secondarily by virtue of temporary arrangement he was made responsible for payment of land revenue. This additional responsibility that was placed upon him cannot be allowed to deprive him of his tenancy rights which continued unaffected or unaltered. Section 130 relates to a private transfer and has to be read in conjunction with sec. 129 of the Code. If a land owner being unable to manage his land owing to service etc. desires to make it over to other! person he should make an application to the Deputy Collector for sanction. In case of private transfer if the transferor dies within the period of transfer his heirs are to be bound by the conditions of transfer. They are entitled to recovery of possession on the expiry of such period. The transferee shall obtain no right of occupancy in the land nor shall any claim regarding loss of compensation for improvements made by him can be entertained unless a condition to that effect has been made at the time of transfer. No such private transfer came into existence in the present case. It was a simple case of desertion by owners and what is more important is the fact that at the time of desertion the appellants father was in possession of the land as a non-occupancy tenant. The rights of a tenant and his land-holder are entirely distinct from one another. The learned Additional Commissioner was, therefore, wrong in holding that the appellant was not eligible to acquire occupancy rights. The learned counsel for the respondent pointed out that in the Naqsha Kasht Barah Sala filed by the appellant along with his plaint some entries in the name of other persons in some years are made against some khasra numbers. This is not of much significance for the obvious reason that in Svt. 1995 the appellant had completed his 12 years continuous and was in possession at the time of the institution of the suit as well. We would, therefore, allow this appeal, set aside the decree of the lower appellate court and restore that of the trial court.;