- (1.) THIS is a second appeal against the decree of the Revenue Appellate Authority, Bikaner, dated the 12th November, 1963, whereby the appellants' first appeal against the dismissal of their suit by the Sub-Divisional Officer, Rajgarh, was rejected.
(2.) THE facts are that the appellants had brought a suit for the ejectment of respondent as trespasser from khasra number 132 in village Rohi Ludi Chhaju. THEy alleged that the trespass had taken place in Samvat 2008. THE respondent claimed to be a sub-tenant of the suit land and denied liability to ejectment. THE trial court held that the appellants were recorded khatedars, and that the respondent was in possession as a sub-tenant under the appellants. THE suit as brought under sec. 183 of the Rajasthan Tenancy Act, 1955, was dismissed. THE appellants preferred their first appeal in the court of the Revenue Appellate Authority. , Bikaner, who concurred in the findings of the trial court. THE learned Revenue Appellate Authority further held that the respondent had become a khatedar tenant by operation of law, that is by virtue of the provisions of sec. 19 of the Rajasthan Tenancy Act. THE basis for this observation by the Revenue Appellate Authority was that the respondent stood recorded as sub-tenant of Fatta, that is Fateh Chand, father of the appellants, in the jamabandi for the period 2011 to 2014 Samwat. The learned counsel for the appellants has frankly stated that the respondent is a sub-tenant and not a trespasser. However, he has urged that the respondent be ejected as a ghair khatedar tenant under sec. 180 (1) (b) of the Rajasthan Tenancy Act. To this end he has also filed an application for relief under sec. 209 of the Tenancy Act. His argument is that undoubtedly certain sub-tenants recorded in the jamabandi in force during Samvat 2012 became khatedar tenants, but that such tenants had to satisfy the conditions laid down under sec. 19 of the Tenancy Act. These conditions are that khatedari will accrue only in such part of the land held by the sub-tenant as does not exceed the minimum area prescribed by the State Government for the purpose of clause (a) of sub-sec. (1) of sec. 180 or exceeds the maximum area from which a sub-tenant is liable to ejectment under clause (d) of sub-sec. (1) of sec. 180 of the Tenancy Act. This means that there is no unrestricted accrual of khatedari rights under sec. 19 of the Act, and the conditions regarding area have to be satisfied. There is force in the contention of the learned counsel for the appellants that there must be a proper enquiry regarding the area limits before the respondent is held to have become a khatedar tenant under sec. 19 of the Tenancy Act. No such enquiry has been held in this case, and the observation of the learned Revenue Appellate Authority that the respondent has become a khatedar tenant is without any legal basis. The prayer made by the appellants that the respondent be ejected as a sub-tenant would depend on whether the respondent has attained the status of a khatedar tenant under sec. 19 in the whole or any part of the suit land or not. Since an enquiry in this matter has yet to be made, we accept this appeal and remand this case to the trial court with the direction that an enquiry be made as aforesaid. In case it is found that the respondent has become a khatedar tenant in the whole or part of the land in dispute, he shall not be ejected from the whole or such part of the said land. If, however, the result of the enquiry is that no khatedari rights have accrued to the respondent, he shall be ejected under the provisions of sec. 180 (1) (b) of the Rajasthan Tenancy Act. The acceptance of this appeal in the above terms is subject to the condition that the appellants shall pay Rs. 50/- to the respondent by way of cost, since the application for relief under sec. 180 (1) (b) has been made belatedly and has caused harassment and inconvenience to the respondent. .;