- (1.) SHANKERLAL defendant appellant has filed this second appeal against the judgment and decree of the Revenue Appellate Authority, Kota dated 8. 4. 1963.
(2.) BRIEFLY the facts of the case are that Kishanlal plaintiff respondent claiming himself to be the pantidar 'upkrishak' of Khasra number 183 situated in village Roopaheda, Tehsil Khanpur, Distt. Jhalawar and admitting that one Radhakishan was his Khatedar filed a suit on 17. 5. 61 u/sec. 183 of the Rajasthan Tenancy Act against Shankerlal defendant appellant for ejectment as trespasser. The defendant appellant pleaded that he was the purchaser of the Khatedari rights in land from one Radhakishan Khatedar on 10. 5. 61 and denied having committed any trespass. He also pleaded that plaintiff had no locus standi to file the present suit. The trial court held that the plaintiff was not a 'pantidar' or partner in cultivation of the disputed holding with the Khatedar Radha Kishen but was a sub-tenant. It further held that under the definition of the expression 'tenant' in sec. 5 sub-sec. 43 of the Rajasthan Tenancy Act, sub-tenant is included and as such when he was displaced by the defendant appellant he was entitled to maintain a suit against the appellant. In the first appeal filed by the defendant appellant it was held that no partnership existed between the plaintiff respondent and Radha Kishan Khatedar, but the plaintiff respondent was a subtenant of Radha Kishen and he was wrongfully ejected by the defendant appellant. The first appellate Court therefore upheld the judgment of the trial Court. The counsel for the appellant raised two contentions before us. Firstly, that the trial court failed to decide the issue No. 2 relating to the maintainability of a suit by the plaintiff respondent properly and the appellate court has not given any finding on that point of law. The second, contention was that the plaintiff respondent had himself admitted that he was a Pantidar and there is nothing on record to show that he was the sub-tenant of the Khatedar. The counsel for the respondent cited R. R. D. 1959 page 149 and pleaded that the intention of the parties must be seen whether the relationship between the persons was that of a Khatedar or a partner. In this case the respondent was actually a sub-tenant and not a partner. He paid rent in kind by delivering half the produce of the land. He further pleaded that this question of fact that the respondent was a partner has been decided by the two Courts and this concurrent finding cannot be disturbed by the second appellate court. We have considered the arguments advanced from both sides and perused the record. There is no doubt that the two courts below have concurrently held that the plaintiff respondent was not a partner of Radha Kishan Khatedar, but was his sub-tenant. We have first to decide whether the finding of the two courts on the question of fact that the plaintiff respondent was a sub-tenant and not partner is final or it could be examined in the second appellate court on the ground that finding of the Court below was perverse. The counsel for the appellant has drawn our attention to the pleadings as well as the evidence on record in which the stand taken by the plaintiff respondent was that he was a pantidar or a partner and not a tenant. In para 1 of the plaint the appellant has stated that he has been in possession of the suit land as a pantidar 'upkrishak'. The respondent on the other hand in his written statement had denied the plaintiff's claim. In the statement made by the plaintiff Kishna he has clearly stated that he had been cultivating the land for the last 12 years on Panti. This has been corroborated by Beeralal and Kanhaiyalal witnesses. Radha Kishan D. W. 3 Khatedar has been produced on behalf of the respondent ; he has also clearly stated that he never got the land cultivated on panti from Kishna. The entries in the Khasra Girdawari clearly indicate that he land has been held by the respondent on panti basis, as a pantidar. It is in the face of this strong evidence that the two courts have come to the conclusion that the plaintiff respondent was not a pantidar but a sub-tenant. To our mind this finding of the two courts below on the question of fact on the status of the plaintiff respondent was clearly perverse and against the evidence on record. The counsel for the respondent by citing R. R. D. 1959 page 149 urged before us that since the respondent cultivated the land and paid half the produce by way of cash rent he was clearly a tenant and not a pantidar. It was on this basis that in R. R. D. 1949 page 149 (Parbhati vs. Kishorilal) it was laid down that, where there was a disparity in the contribution of the partners in agricultural operations, it should be presumed that the agreement was made only to camouflage the agreement of tenancy by giving it a colour of partnership The learned Members further observed that for partnership there must be a joint pooling of common resources like bullocks, manure, physical labour finances and eventually distribution of the produce. This notion of the learned Members who interpreted the term partnership, in our opinion is against the authoritative definition given in the Indian Partnership Act, 1932. The Chapter II of Indian Partnership Act, 1932 defines partnership as follows: - "4. Partnership - Is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Persons who have entered into partnership with one another are called individually, "partners" and collectively "a firm" and the name under which their business is carried on is called the "firm name". "5. The relation of the partnership arises from contract and not from status. " Thus it is clear, that partnership relation is established by a contract between the partners. The only ingredient required for constitution or partnership under the law is that the persons must agree to share the profits of business. The observations of the learned Members who constituted the Division Bench that partnership enterprise can arise only from joint pooling of resources is absolutely erroneous and contrary to the provisions of the Indian Partnership Act, 1932. According to the law of Partnership one partner may merely provide the finances and the other may do the entire physical or managerial works and still it would be a good partnership in law. It is, therefore, not understood from where the learned Members derived that concept of partnership. We do not subscribe to the view taken by the learned Members of the Board who delivered the judgment of Prabhati vs. Kishorilal reported in R. R. D. 1959 page 149, where the contracting parties have clearly intended that relationship between them should be that of partners and not of landlord and tenants. It was not open for anyone else to interpret the agreement in writing otherwise. It is only in the absence of the contract expressed in writing to the contrary that an inference can be raised whether the relationship between the contracting parties was that of a partner or of a sub-tenant. The observation made by the learned Members, that in order to constitute partnership there should be pooling of common resources and where there was a huge disparity of pooled resources no partnership existed is absolutely unwarranted by any law. In another case in R. R. D. 1944, page 527 'saji'or partnership also has been distinguished from co-tenancy and this ruling has been referred to in Prabhati vs. Kishorilal. In case of Prabhati vs. Kishorilal when the words 'saji' has been clearly found entered in the" 'kabuliyat' the parties clearly intended that their contractual relation should be that of partners and not that of sub-tenant. When that contract was reduced in writing the question of enforcing a different relationship from what was actually stated in the deed of agreement was clearly uncalled for. Thus to our mind the ruling of the above does not help us to decide the case by holding that the relationship between the parties were that of a co-tenant and a Khatedar and not that of partners. We are clear in our mind that from the evidence on record the finding of the two courts on the mixed question of fact and law that the plaintiff respondent was a subtenant was clearly wrong and perverse. A partner cannot acquire any tenancy right against a knatedar and he is clearly not entitled to maintain a suit for ejectment of a trespasser under sec. 183 of the Rajasthan Tenancy Act. Even presuming that the plaintiff respondent was a Subtenant then again he was not in a position to maintain a suit for ejectment of trespasser under sec. 183 of the Rajasthan Tenancy Act. Before any tenant could maintain such a suit under section 183 of the Act, it must be shown that he was a person entitled to admit the trespasser as tenant. Sec. 183 of the Act runs as follows: 183. Ejectment of certain trespassers - (1) Notwithstanding anything to the contrary in any provision of this Act, a trespasser who has taken or retained possession of any land without lawful authority should be liable to ejectment subject to the provision contained in sub-sec. (2), on the suit of the person or persons entitled to admit him as tenant, and shall be further liable to pay as penalty for each agricultural year, during the whole or any part whereof he has been in such possession, a sum which may extend to fifteen times the annual rent. " A sub-tenant is an inferior holder of land to Khatedar tenant or a tenant-in-chief. He has no transferable right and as such he cannot admit any other person as a tenant to the land sublet to him. Sec. 45 of the Act prohibits a sub-tenant to sub-let the whole or any part of his holding except in circumstances mentioned in sec. 46. Thus the plaintiff respondent as sub-tenant was clearly not a tenant who could admit a trespasser as a tenant in the holding in question and therefore he was not legally entitled to file the present suit. The trial Court, as argued by the counsel for the appellant clearly committed an error of law in holding that the sub-tenant u/s. 5 sub-sec. 43 of the Act was a tenant within the meaning of sec. 183. This interpretation of the trial court is clearly against the provision contained in sec. 183, wherein the opening words "notwithstanding anything to the contrary to any provision of this Act" clearly indicate that the tenant in sec. 183 would not include a sub-tenant because he is clearly prohibited from subletting a trespasser as a tenant in the holding. It was also argued by the counsel for the respondent that since the respondent was in possession of the land as a sub-tenant for a long time, he obviously acquired Khatedari rights under the Act. There is nothing on record to show that this plea that the respondent as a sub-tenant ever acquired Khatedari rights against Radha Kishan, the original Khatedar and therefore this argument of the counsel for the respondent is of no substance. The appellate court did not give any finding on this question of law whether the suit by the plaintiff respondent was maintainable or not. In our opinion it is clear that even assuming that the plaintiff respondent was sub-tenant he was clearly not in a position to maintain a suit against the trespassers for the reasons stated above. Therefore the suit of the plaintiff respondent must fail on the ground that he was not a sub-tenant in the first instance but a partner and secondly assuming that he was a sub-tenant, he was not in a position to maintain a suit under sec. 183 of the Rajasthan Tenancy Act. We, therefore, accept the appeal of the appellant, set aside the judgments and decrees of the courts below and dismiss the plaintiff respondents suit with costs. .;