- (1.) THIS second appeal has been filed against the order of the learned Revenue Appellate Authority, Kota, rejecting the appeal of the defendant appellant against the judgment and decree of the Asstt. Collector, Dholpur, dated 15. 5. 63, whereby the learned Asstt. Collector had decreed the suit of the plaintiff-respondent for the ejectment of the defendant-appellant from Khasra Nos/ 1952/2 and 197 in village Seroli.
(2.) IT was alleged by the plaintiff-respondent that one Gokul was the Bandobasti tenant of the aforesaid Khasra Numbers. He died in Smt. year 2015 leaving behind the plaintiff-respondent who was the uncle of the deceased to succeed to his estate. In due course of time, mutation was also effected in his favour. The defendant had, however, forcibly taken possession of the disputed fields. IT was, therefore, prayed that he should be ejected. In reply, the defendant stated that he had been in the cultivatory possession of the fields as sub-tenant of Gokul who being an old man was not in a position to cultivate the field personally since Smt. year 2014. After framing the necessary issues and recording evidence, the trial court came to the conclusion that according to the revenue records, the plaintiff-respondent was the Khatedar tenant of the disputed fields. It also held that the defendant was entered as a sub-tenant in respect of the disputed lands in Smt. years 2014, 2015 and 2016, having been admitted into the land by Gokul deceased a sub-tenant. As Gokul died in Smt. year 2015, the tenancy had come to an end in Smt. year 2017 under sec. 46 (2) of the Rajasthan Tenancy Act. Since the plaintiff had never sub-let the land to the tenant nor had he accepted rent, it followed the plaintiff had not acknowledged the subsistence of the sub-tenancy and the tenancy rights of the defendant therein stood extinguished in Smt. year 2017. He was, therefore, held to be a trespasser and the suit was decreed in favour of the plaintiff. Having felt aggrieved by this order, the defendant-appellant filed an appeal before the learned Revenue Appellate Authority. The appellant attacked the order of the trial Court,on the ground that the plaintiff had not been able to establish that he was the successor of Gokul. He also contended that in a previous suit which had been dismissed the question of the succession of Gokul had been raised and the same could not be reagitated. It was also asserted that the mutation proceedings were not binding on the defendant appellant. It was, further, averred that the defendant-appellant having been admitted as a sub-tenant, he could not be held to be a trespasser under sec. 46 (2) of the Rajasthan Tenancy Act. The learned Revenue Appellate Authority repelled the contentions raised by the appellant on the ground that the land had been mutated in favour of the plaintiff after the demise of Gokul. It was open to the defendant-appellant to have the same set aside by due process of law if he seriously contended the mutation order. The land stood in the Khatedari of the plaintiff at present and so long as this was the position the onus to establish his rival claim heavily rested on the defendant-appellant. The previous suit referred to by the defendant-appellant in which the question of succession is alleged to have been raised was not dismissed on mentis and, therefore, the plea of res judicata could not be raised by the defendant-appellant in this case. The previous Khatedar Gokul had leased the land to the defendant in Smt. year 2014. Gokul's death in Smt. year 2015 was not disputed. Under the circumstances sec. 46 (2) of the Rajasthan Tenancy Act would come into play and the rights of the lessee would stand extinguished after the lapse of two years from the demise of Gokul. Under the circumstances, the learned Revenue Appellate Authority rejected the appeal. Having felt aggrieved by this order, the defendant-appellant has come up in second appeal. A second appeal against the concurrent finding of fact is admissible only on legal grounds or on the ground of misreading of evidence. The learned counsel for the appellant has again contended that the plaintiff has no locus standi to file the suit. He questions the right of the plaintiff to succeed to the estate of Gokul. To our mind, this argument can be of no avail to the defendant-appellant in view of the concurrent finding of the courts below. The title of the defendant-appellant flows admittedly from the lease made by Gokul in his favour before his demise. This does not entitle him to question the proprietory title of the plaintiff who has after the demise of Gokul secured the mutation of the land also in his favour. It is true that mutation proceedings do not confer a proprietory title. They are in the nature of a fiscal arrangement to determine from which party the rent should be received by the State. They can certainly be questioned in a competent civil or revenue Court having jurisdiction under sec. 125 (3) of the Rajasthan Land Revenue Act. Nevertheless, the defendant-appellant whose claim is based on the creation of the lease by the previous Khatedar cannot be allowed to question the proprietory title of the successor of the deceased Khatedar. The other argument of the learned counsel for the appellant has of course considerable weight. It has been urged by him that the appellant having been admitted lawfully to the tenancy of the land by Gokual, could not be declared as a trespasser. At worst his status would be that of a tenant holding over and he could not, therefore, be ejected under sec. 183 of the Rajasthan Tenancy Act. It has, further been urged that no prayer having been made by the plaintiff-respondent under sec. 209 of the Rajasthan Tenancy Act, the defendant-appellant could also not be ejected under sec. 180 (l) (b) of the aforesaid Act. While we appreciate the argument of the learned counsel for the appellant that the defendant-appellant being a tenant holding over cannot be ejected under sec. 183 of the Rajasthan Tenancy Act, we are not prepared to accept his contention that the appellant cannot be ejected under sec. 180 (1) (b) of the aforesaid Act in the absence of a formal application under sec. 209 of the Rajasthan Act. A prayer has now been made at the bar by the learned counsel for the plaintiff-respondent who requests that relief may be granted under sec. 180 (l) (b) as he concedes that the case does not attract sec. 183 of the Rajasthan Tenancy Act. It is well settled law that where facts of the case are not dubious and the material on record is sufficient to establish the claim of the plaintiff, appropriate relief should be awarded instead of prolonging the litigation, notwithstanding that such relief has not been asked for in the plaint. The evidence in this case admits of no doubt and is sufficient to establish that the right and title of the defendant-appellant stands extinguished in the land in dispute by the operation of sec. 46 (2) of the Rajasthan Tenancy Act. Under the circumstances, we accept the appeal of the appellant and set aside the impugned decree which was made under sec. 183 of the Rajasthan Tenancy Act. In our opinion, the plaintiff is entitled to relief under sec. 180 (l) (b) and we, therefore, decree the suit accordingly in favour of the plaintiff-respondent. . ;