- (1.) BHEEV Singh plaintiff appellant filed this appeal against Banke Singh and 5 other respondents against the judgment and decree of the Additional Commissioner, Jodhpur dated 28. 3. 1963. Briefly, the facts of the case are that Laxman Singh father of the present appellant filed a suit alleging that khasra No. 246, 246/1 and 246/2 consisting of 62 bighas and 9 biswas and situated in village Tiloda Tehsil Jalore popularly known as Bera Gundiwala was his Khudkasht land. He was the jagirdar of that village. The plaintiff got this land cultivated through the system known as Bhawlies. In Smt. 2005 the defendants respondents were cultivating the land as his Bhawlies alongwith his own Bhawli when the settlement operations commenced. The names of the Bhawlies were also unnecessarily entered in the record of rights as khatedars. The land in dispute was continuously cultivated for many years by the plaintiff jagirdar. Out of the defendant-respondents Lal Singh and Bhoor Singh only contested the plaintiff's suit and ex parte proceedings were taken against the rest of the defendants. They pleaded that the 'bera gundiwala' was their ancestral holding and it was constructed by them and they were paying rent to the plaintiff and were in continuous possession of the suit land. The trial court decreed the plaintiff-appellant's suit, but in an appeal preferred by Bhoor Singh alone, the Additional Commissioner, Jodhpur modified the decree of the trial Court by declaring 5/8th of the disputed land as the plaintiff appellant's khudkasht and 3/8th as the khatedari land of the respondents Bhag Singh, Bhoor Singh, Khem Singh, and Lal Singh. He further held that Bhoor Singh appellant could alone file this appeal on his behalf as well as for the benefit of the defendants respondents. It is against this judgment and decree that this second appeal has been filed.
(2.) THE only contention raised by the counsel for the appellant was that the finding of the first appellate Court that Bhoor Singh was in possession of the suit land as tenant was perverse. He was never in possession of the suit land after Smt. 2006 whereas the appellant has proved his possession by khasra girdawari and the statement of other witnesses. From Smt. 2008 onward that he alone was in possession of the suit land. THE counsel for the respondent's reply was that no sufficient evidence on record shows that Bhoor Singh was in possession of the land as tenant in possession and in Smt. 2012 Bhoor Singh's possession was also recorded in the khasra girdawari. THE other witnesses of Bhoor Singh have testified on oath that Bhomia and Purohit cultivated the suit land and Thakur never cultivated. In view of the above, we have considered the arguments advanced from both sides and perused the record. It is an admitted fact that the plaintiff's father Laxman Singh was the jagirdar of the suit land. The defendants admit that the land was cultivated through the system of Bhawlies. There is nothing on record to show the manner in which the system worked in that area. It is also an admitted fact from the khasra girdawaries that the plaintiff appellant Laxman Singh put one of his Bhawalies for the cultivation of this land and from time to time admitted other persons as Bhawlies to this land. We made an attempt at the time of the arguments to know what exactly was the system of Bhawlies and we were informed that this system consisted of a number of persons getting together to pooling their bullocks power and other sources for cultivation of the land. It means they cultivated the land as posting. The produce of this land was shared between the co-tenants in accordance with the capital contribution of each person, after paying tent to the landholder. It is an admitted fact that the plaintiff appellant was also one of the persons of receive share in the cultivation of this land. The question for determination by the subordinate Courts, was whether the land in dispute was the khudkasht or the 'sir' land of the plaintiff appellant. The burden of proving that this was so clearly rested on the plaintiff appellant. The trial court had considered the evidence produced by the plaintiff appellant in discharge of his burden, on the basis of the entries in the khasra girdawari as well as other witnesses. Achalsingh Patwari has clearly deposed that in Smt. 2008 this land was cultivated by Laxmansingh plaintiff and Samel, Kalla, Hansa and Bhoor Singh. He has further deposed that Bheev Singh's name does not appear in khasra girdawari in Smt. 2009 and 2010. In Smt. 2011 no girdawari was conducted but in Smt. 2012 plaintiff's cultivation above has been shown. In Smt. 2013 the entry in the khasra girdawari with regard to the suit land shows that it was lying fallow (Parat), but this entry was scored out and then certain names entered. The plaintiff himself also supported his case by saying that the land in dispute was his khudkasht. Amba, Prabhu and other witnesses corroborated the evidence of the plaintiff that the land was his khudkasht. The respondent Bhoorsingh on the other hand could not rebutt this evidence and the trial court did not accept this evidence on behalf of the respondent Bhoorsingh as sufficient to rebut the proof adduced by the plaintiff appellant. He has given three reasons for discarding the evidence led in rebuttal on behalf of the respondents. First reason was that the defendant admitted that the land was cultivated on Bhawali system. The defendant did not produce the best evidence of those Bhawalidars who cultivated the land in support of the tenancy. The second reason was that the defendant's witnesses were mostly all Rajput Bhomiyas. The receipt filed by the defendants did not support that they paid rent to the plaintiff appellant. The first appellate Court at the time of hearing the appeal did not consider this finding of fact by the trial Court in a proper legal manner and by a process of reasoning which cannot be considered rational rejected this finding of fact by the trial Court, that the land in dispute was in cultivation of the plaintiff appellant as his khudkasht and that the defendants rebuttal evidence fully established tenancy. There is nothing on record to show that the defendant Bhoor Singh was ever admitted by the plaintiff appellant as landlord to the tenancy clearly lay on the defendant. The fact of Bhawlies cultivation is admitted by them. Thus we see no reason to disbelieve the finding of fact recorded by the trial Court that the land in dispute was the khudkasht land of the plaintiff appellant during the period when the Marwar Tenancy Act, 1949 came into force. The plaintiff appellant being the land-holder could keep certain areas of land as his khudkasht or sir land which meant under sec. 5 of the aforesaid Act, land cultivated by the londlord at the commencement of that Act. Sec. 5 of the same Act defines khudkasht "as including land cultivated by his dependants or servants or by hired labour. " There is then sufficient evidence on record to show that the land was cultivated by the landholder when the settlement operations commenced. During the record operations the plaintiff himself was found to be one of Bhawalidars alongwith other respondents. Some of them have surrendered their lands subsequently but the defendants Bhawalidars some-how or other contested in the present suit that they cultivated the land although the girdawari entries are not in their favour nor they have been able to discharge their burden of proving that they were sub-tenants of the land in question. Sec. 7 of the Marwar Tenancy Act, 1949 clearly lays down that no khatedari rights could accrue in 'sir' land until such right in the land are extinguished. Sec. 7 (a) empowers a Deputy Commissioner to declare a tenant to be a khatedar of a 'sir' land if it was found that the landlord was in the habit of letting out his land and he may fix the rent payable for the land. No such declaration under sec. 7 (a) was sought by the respondents in order to become a khatedar. Therefore, at the time when the settlement operations commenced the land in dispute was clearly a khudkasht or 'sir' land of the appellant and the respondent had not acquired any khatedari right. It was therefore illegal on the part of the settlement Officer incharge of Record Operations to enter the name of all the Bhawalidars as the khatedars, alongwith the plaintiff appellant of the suit land. A landlord cannot at the same time be styled as a khatedar tenant. The entry therein, on the face of it was incorrect and illegal. For the reasons stated above we accept the appeal of the appellant, set aside the judgment and decree of the first appellate Court and confirm the decree passed by the trial Court. .;