- (1.) THIS is an appeal against an appellate order of the Additional Commissioner, Udaipur, dated 11.2.1954 in a case relating to allotment of land.
(2.) THE respondents counsel Shri Chaturbhuj Sharma did not put in appearance before us to day and hence the case was heard ex parte.
(3.) THE facts of the case have been set out at length in the judgment of the Board dated 22.9.1951 (case No. 4 of Svt. 2007 -08, District Bhilwara, Chhoga vs. Nathu) whereby the order of the Commissioner, Udaipur, dated 28.6.1951 was set aside and the case was remanded to him for further enquiry on the following three points: - - (i) Whether the fields in question remained un -cultivated without sufficient reasons for three years; (ii) Whether cash rent was assessed for these fields and that it was not paid for three years continually; and (iii) Whether there was any other law or custom in the covenanting Shahpura Stated according to which holdings for non -cultivation for three years could be auctioned if so, a complete report about it may be sent for. The learned Additional Commissioner after making reference to the Tehsil Shahpura has held that "the appellant failed to prove that sufficient reasons prevented him from cultivating the land for three years". As for the second point he has observed that "the cash rent was not assessed for these fields and rent was paid in kind. But it is apparent from the reports that no rent was paid for the lands in question". As for the third point he has observed that "the report of the revenue officers, Quanungo, Tehsildar and the S.D.O. are to the effect that there has been a custom in the covenanting State of Shahpura according to which holdings for non -cultivation for three years or more revert to the State and they can be auctioned". With these observations he dismissed the appeal hence this second appeal. On the last date of hearing the Tehsildar and the S.D.O. were required to submit to the Board all such cases wherein lands may have reverted to the Government for non -cultivation for three years. It has now been reported by them that no such can be produced. In the absence of any specific cases wherein the custom alleged may have been recognized or modified we cannot legally hold that such custom ever existed in the erstwhile Shahpura State. Reliance is, however, placed on a printed patta form granted to the opposite -party and it is argued that similar conditions may deemed to have governed the appellants case. It appears that this argument was deemed by the Board to contain some substance and a further enquiry was directed to be held on these lines. Condition No. 9 of the patta lays down that "a tenant or his heirs so long as they cultivate the land and pay rent shall not liable to ejectment." If, however, the rent is not paid for three years then the tenant shall be liable to ejectment". Condition No. 5 provides that "when the land is not cultivated in ordinary years without sufficient cause then rent at bila prevail nikhati rates will become payable". It clearly lays down that if the tenant fails to cultivate the land he shall be liable to pay rent at the aforesaid rate which must be assessed and demanded from him. It has been reported clearly by the Tehsildar that no such assessment was ever made and consequently no demands were made against the appellant. It has also been found as a fact that the appellants possession over the land in dispute has been continuing for about a decade. Under these circumstances we feel that the S.D.O. Shahpura was not justified in auctioning the land and sanctioning the sale thereof in favour of the respondent. We would, therefore allow this appeal, set aside the order of the lower courts and direct that auction proceedings taken out by the Tehsildar and the S.D.O. Shahpura shall be set aside. It will be open to the Tehsildar concerned to take steps for the realisation of the rents that may have become due against the appellant in the light of the observations made above.;