- (1.) SRI Narain Defendant appellant has filed this second appeal against the judgment and decree of the Revenue Appellate Authority, Jaipur dated 27. 1. 62 rejecting his first appeal. Briefly the facts of the case are that Shrimati Goran filed a suit for possession against SRI Narain defendant appellant who had forcibly occupied the suit land. The following table shows her relationship to the two Khatedar tenants, namely Mangilal and Baldeo, who died heirless as under: Jai Narain Gopal Mangilal (Mst. Rambha) Goran Daughter Baldeo Goria
(2.) RAMBHA died in Svt. 2014, Mangilal in Smt. 1997, Baldeo died in Svt. 2010 and Goria died in Svt. 1995. The plaintiff respondents' further allegations were that the suit land was wrongly mutated in favour of the defendant appellant as a result of which he forcibly occupied the holding. She claimed that she was the daughter of Jainarain and sister of Mangilal, son of Jai Narain, who died in Svt. 1997 and was succeeded by his wife Mst. RAMBHA. Gopal the brother or her father Jainarain had two sons Baldeo and Goria. They both died issueless, the latter in Svt. 1995 and the former in Svt. 2010. RAMBHA also died in Svt. 2014. Thus she was the only heir left in the family and was thus entitled to succeed to the Khatedari lands of Mangilal and Baldeo. The defendant appellant Sri Narain denied the respondent's claim and even refused to accept her as the real sister of Mangilal and daughter of Jai Narain but admitted the geneological table as given by the respondent and claimed the suit land on the basis that he was the adopted son of Mst. RAMBHA and Baldeo and cultivated the land for the last 15 years and thus acquired Khatedari rights under sec. 15 of the Rajasthan Tenancy Act. The trial court framed the issues and tried the suit and decreed the plaintiff respondent's claim and in an appeal filed by the defendant appellant the decree of the trial court was confirmed. It is against this concurrent finding on facts of the two subordinate courts that the unsuccessful defendant appellant has filed this second appeal. The counsel for the parties were heard and the record of the case was examined. We now deal with the various contentions raised by the counsel for the appellant and the respondent and our decisions thereon. The first contention of the learned counsel for the appellant was that the plaintiff's suit was resisted in the trial Court by the appellant on the ground that he was the adopted son of the Khatedar tenant, namely Baldeo & Rambha who died issueless. This plea of adoption raised a question of proprietory right and it was not open to the revenue courts to decide this question of status and the same should have been decided by the civil court. The decision of the revenue court on this point was without jurisdiction and thus illegal. He pointed out that under sec. 239 of the Rajasthan Tenancy Act if a question of proprietory right in respect of land forming the subject matter of such proceeding or suit is raised and such a question has not been previously determined by a Civil Court of competent jurisdiction, the Revenue Court shall frame an issue and refer the matter to the Civil Court for decision. He, therefore, argued that the question of adoption was clearly a question of title and proprietory right and the same should have been referred by the Revenue Court to the Civil Court for decision. In support he cited I. L. R. Rajasthan Page 776, RLW 1952, Revenue Supplement, p. 50, A. I. R. 1955 NUC Rajasthan, page 1049. The learned counsel for the respondent's reply was that in the present suit, no proprietory rights were claimed by any parties. Only tenancy rights were claimed by the respondent on the basis of succession and by the appellant on the basis of adoption. This plea of adoption and succession was purely ancillary and incidental to the tenancy and no reference was at all necessary by the Revenue Courts to the Civil Courts. Sec. 239 of the Rajasthan Tenancy Act contemplates the question of reference of proprietory rights of estate holders or Jagirdars and not tenancy rights of the Khatedars. Khatedari right, he pointed out is not a proprietory right but only a tenancy right. In support he cited a note on Bilgrami Revenue Law Third Edition at page 393, A. I. R. 1927 Allahabad, page 780 wherein it was held that on the basis of sec. 95 of the Agra Act corresponding to sec. 239 of the Rajasthan Tenancy Act, that a claim for adoption is not a matter for decision by a Civil Court, RRD 1960 page 138 wherein it was held that Khatedari rights are not proprietary rights, ILR 6 Rajasthan page 323. The High Court interpreting the provisions of sec. 36 of the Revenue Courts Procedure and Jurisdiction Act (the same language of which was incorporated in sec. 239 of the Rajasthan Tenancy Act) came to the conclusion that the question of status ancillary to tenancy has to be decided by revenue courts and not civil courts. ILR 11 Rajasthan page No. 746 it was held that Bapadari right is not a proprietory right and really a tenancy right. AIR 1921 Allahabad page 250 and 290, ILR 11 Rajasthan 1222 it was held that Khadam in Mewar is a tenancy right and not a proprietory right. He therefore pointed out that the contention of the learned counsel for the appellant was clearly untenable. We have considered the arguments advanced by the learned counsel on both sides and examined the authorities cited by them. We are unable to agree with the contention of the counsel for the appellant that a question of proprietary right was involved in the present suit between the parties. Both parties claim the suit lands, held by the last deceased owners in their Khatedari rights. On the basis of the various authorities cited by the learned counsel for the respondent specially RRD 1960 page 130, ILR 6 Rajasthan page 323 and ILR 11 Rajasthan page 1222 we are clearly of the opinion that a Khatedari right is not a proprietary right because Khatedar is never considered to be a proprietor. Sec. 239 of the Rajasthan Tenancy Act contemplates a dispute of proprietary right between the estate holders or Jagirdars. They were the proprietors of the land before the Jagir resumptions and after that the State alone is the proprietor of the land. However, in reply to the argument advanced by the learned counsel for the respondent the learned counsel for the appellant argued on the basis of ILR 6 Rajasthan page 323 in which the Madras case of Peri Kameswar Rao versus Peri Jagannadha Sastry, A. I. R. 1941 Madras 405 was referred to that the present suit in which the question of adoption was agitated was not a matter ancillary to the tenancy and this point should have been decided by the civil court because Rambha was never in possession of the suit land, only the appellant was in possession. In the first instance we do not agree with the learned counsel for the appellant that the appellant was in possession of the suit land. It is the concurrent finding of the two courts that he only came into possession of the suit land forcibly after the mutation was made in his favour and Goran the respondent plaintiff throughout with Rambha remained in possession. Therefore the Madras ruling cannot apply to this case. The concensus of opinion of all the courts including the Rajasthan High Court has been that in dispute with regard to tenancy matters if a question of status or title is agitated the revenue courts have full jurisdiction to decide such matters. Therefore this contention of the learned counsel for the appellant has no force. The second contention of the counsel for the appellant was that when Baldeo died in 1953 the provisions of Jaipur Revenue Code sec. 17 would apply and sister could not succeed to her brother. Goran clearly could not succeed to Baldeo. At the same time when Rambha died in 1957, she could not be succeeded by Mst. . Goran and the personal law of succession for agricultural tenancies as incorporated in the Jaipur Tenancy Act would apply and in support he cited RRD 1960 page 169, RRD 1961 page 57. The learned counsel for the respondent's reply was that when Baldeo died and succession opened in 1953 the Hindu Law which was the personal law of the parties applied to this case. The Hindu Law was based on customs and statutory law. If the custom has been regulated by statutory law, that law would prevail and not the custom. He therefore pointed out that Hindu Law Inheritance Amendment Act of 1929 enabled the sister to succeed as a heir, there being no other mail heir she was a preferential heir to Baldeo. When Rambha died in 1957 the Rajasthan Tenancy Act sec. 40 regulated the succession to the tenancies in accordance with the personal law of the deceased. Here the personal law meant the Hindu Law. The Hindu Succession Act had already come into force and Shrimati Goran was the only female heir to succeed in preference to all others. Sec. 4 of the Hindu Succession Act, as far as agricultural tenancies was concerned permitted the States to make necessary legislation to prevent fragmentation of holdings etc. and to regulate the succession with regard to agricultural tenancies. The Jaipur Law therefore did not debar Mst. Goran to succeed as there was no other male heir to succeed Mst. Rambha. Sec. 40 thus by implication also abrogated the Jaipur Tenancy Succession Act. The question before us is what law would govern the succession of tenancy when Baldeo and Rambha died. Both parties being Hindu, clearly the Hindu Law of Succession applies to this case, which is the personal law of the parties. As rightly pointed out by the learned counsel for the respondent, the Hindu Law is governed by custom and statutes and where the custom and statutes are at variance the statute prevails and to that extent the law based on custom stands abrogated. When Baldeo died according to the Hindu Law of Inheritance Amendment Act of 1929 i. e. Mst. Goran was the original heir and similarly when Rambha died Mst. Goran was the only sole survivor to succeed, there being no male heirs left and we are therefore inclined to hold that Mst. Goran was the only successor to both the Khatedari tenancies at the time of their death. It was urged on behalf of the learned counsel for the appellant that the appellant's succession to the holdings vacated by Baldeo and Mst. Rambha was complete and final as a result of orders in mutation proceedings in his favour. The trial Court wrongly gave under weightage to the oral testimony of the respondent's witnesses in preference to the revenue record as incorporated in the mutation proceedings. The order in the mutations would only be set aside on appeal and till then they were final. To this argument the learned counsel for the respondent's reply was that mutation proceedings do not determine the rights of the parties. It is purely a fiscal enquiry which enters the party in revenue record as found in possession. Sec. 125 (3) of the land Revenue Act contemplates a summary enquiry in a matter of dispute regarding entries in the record of rights on the basis of possession and the Land Record Officer has only to satisfy himself that which party was in possession and he has to decide the dispute accordingly. This however does not debar any person from establishing his right to the property in any revenue or civil court having jurisdiction. Therefore the learned counsel for the respondent argued that this suit on behalf of the respondent is actually against the mutation order and challenges its validity. In support as cited ILR 1956 P. C. p. 100 where mutation was not considered to be a judicial proceeding but only a fiscal one and only permitted a person found in possession to be recorded as a tenant. RRD 1956 page 182 and page 259 it is held that mutation is not a final settlement or title. RRD 1957 page 38 states that entry of mutation does not create any title. AIR 1956 Supreme Court page 325 is an authority for saying that record of right only rests on presumption of title. All mutation proceedings could be challenged in a declaratory suit under sec. 88 of the Rajasthan Tenancy Act and a plaintiff is entitled to establish his right on merits. We are entirely in agreement on this matter with the learned counsel for the respondent and there is no force in the contention of the learned counsel for the appellant that a mutation order is a final order and if not challenged in appeal it cannot be challenged by any declaratory suit. In our opinion mutation order could always be challenged by a separate declaratory suit on merit because the mutation order is only an order under a summary enquiry and is never final and could be challenged any time. It does not prevent the parties from agitating the matter in a proper declaratory suit under sec. 88 Rajasthan Tenancy Act read with sec. 125 Rajasthan Revenue Act. Fourthly it was argued by the learned counsel for the appellant that from the Smt. year 2011 to 2014 the appellant was recorded as a sub tenant and he acquired Khatedari rights under sec. 19 of the Rajasthan Tenancy Act. This matter was never examined by the lower Courts. It is question or law that should have been looked into by both the subordinate courts. The learned counsel for the respondent's reply in this respect was that tenancy is a creature of contract and unless relationship of the landlord and tenant is proved a person cannot be accepted and admitted as a tenant. It was not the case of the appellant that he was at any time a tenant to the Khatedari holding of Baldeo and Smt. Rambha and it is a finding of fact by both the Courts that as long as Mst. Rambha and Baldeo lived they cultivated the suit land. The appellant only managed to occupy the land as a trespasser. Clearly the appellant was not a tenant and could not have acquired Khatedari rights under sec. 15 of the Tenancy Act and neither was he a sub tenant under sec. 19 of the Rajasthan Tenancy Act and could not have acquired any Khatedari rights. Further, sec. 19 proviso read with sec. 46 of the Tenancy Act restricts sub-letting and Rambha being a widow, a person claiming himself to be a sub-tenant cannot acquire any Khatedari rights under sec. 19. We are entirely in agreement with the reply given by the learned counsel for the respondent and are inclined to hold that there is nothing on record to hold that the appellant was ever adjudged as a tenant or subtenant and consequently he could not have acquired any Khatedari rights. It is the concurrent finding of the two courts that he was never a tenant or a sub-tenant. But he claimed succession to the holding through adoption which he failed to prove. Therefore, this argument of the learned counsel for the appellant also has no weight. Finally the learned counsel for the appellant argued that both courts misread the evidence on record in holding that Mst. Goran was the daughter of Jai Narain. It is clear from her own statement in cross examination that she was not able to give the name of her own husband. The veracity of her statement was questionable. The counsel for the respondent's reply was that this was a court of second appeal and the appellant has not made out any case of the subordinate courts misreading the evidence on record. On the contrary they fully examined the evidence on record and after doing so they have come to a right conclusion that Mst. Goran was the daughter of Jai Narain. We have perused the record from which it is clear that on the basis of the testimony of old persons like Mst. Goran herself aged 80 years, Rampal aged 70 years and Dula aged 70 years it has been held by the subordinate Courts that Mst. Goran was the daughter of Jai Narain and real sister of Shri Mangi Lal. In view of these findings we concur with the argument of the learned counsel for the respondent that the question of mis-reading of evidence by the subordinate courts does not arise. At the conclusion of the arguments the learned counsel for the respondent prayed that respondent was an old lady and was unnecessarily harrassed by the appellant by prolonged litigation and she should be compensated by an award of penalty against the appellant adjudged trespasser under sec. 183 of the Rajasthan Tenancy Act at a certain suitable multiple of the annual rent in addition to the costs of the suit. We have considered the request made by the learned counsel for the respondent and we do feel that the respondent an old lady has no doubt suffered an agony of prolonged litigation in the three courts. The appellant has been clearly held by all the three courts as a trespasser and the respondent is clearly entitled not only to the costs of the suit of all the three courts but to a penalty. In our opinion it would fully meet the ends of justice by imposing a penalty on the appellant of ten times the annual rent payable on the holding from the date of trespass to the date the possession is handed over to the respondent and the payment of the same to the respondent. The appeal of the appellant is therefore rejected and the decree and judgment of the two subordinate courts is confirmed and we further direct that the respondent is entitled to the cost of the suit for all the three courts as well as the penalty rent of ten times the annual rent of the holding for which he was in unlawful possession. . ;