- (1.) THIS is an appeal from a judgment and decree dated 18th July, 1956 of the Divisional Commissioner, Kotah, which confirmed a judgment and decree dated 29. 9. 1955 of the S. D. O. Chhabra restoring possession of the land in suit to the plaintiff who is now respondent before us, and declining to award him compensation for the loss which was occasioned to him through its wrongful use and occupation.
(2.) WE have heard the learned counsel appearing for the parties and have also examined the record. The material facts of the case may be briefly stated as follows. Seth Krishana Kumar respondent brought a suit in the court of the S. D. O. Chhabra against Kana and Ram Kishan, who have not been impleaded a party to the appeal before us, under items 10 and 12 of Group 'b' schdl. 1 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 on 4. 5. 1954 alleging that he had purchased the land comprised of Khasra Nos 1034/25, and 1104. 26-30, measuring 10 bighas, 3 biswas situated at village Kohni by a registered sale-deed dated 15th June, 1952 from one Devlal. He had instituted a suit against the under in the court of the S. D. O. Chhabra for the possession of the land in question on 28. 6. 1953. His suit was decreed on 14. 10. 1953 and possession of the land was delivered to him in execution of an ex party decree by the Tehsil on 26. 10. 1953. The defendants took possession of the land forcibly on 28. 10. 1953 The defendants cultivated wheat in 6 bighas and dhania in 4 bighas and enjoyed the profit accruing from the land. He prayed that the possession of the land in suit be restored to him and he be awarded compensation to the tune of Rs. 200/- for the loss which he had suffered through wrongful use and occupation of the land by the defendants. Kana and Ram Kishan, defendants resisted the claim of the plaintiff on the ground that as the land in suit was not in the possession of Devlal he could not sell it to another. They also contended that the decree obtained by the plaintiff against Devlal was not valid and proper. They further pleaded that so long as the Rajasthan (Protection of Tenants) Ordinance was in force they could not be ejected from the land in suit. They also alleged that the plaintiff had not impleaded a necessary party and the suit was, therefore, bad on account of non-joinder. Subsequently Ram Gopal, appellant, submitted an application to the S. D. O. pointing out that as he was a necessary party to the suit he should be impleaded in it. His request was allowed and he was brought on the record as a defendant. In his written statement he alleged that as he had been in possession of the land for a long time he could not be evicted from it under the Rajasthan (Frotection of Tenants) Ordinance, 1949. He pointed out that Kana and Ram Kishan had been erroneously entered sub tenants of the land by the Patwari. After framing several issues arising from the pleadings of the parties the learned S. D. O. decreed the claim of the plaintiff so far as possession over the land in suit was concerned and declined to allow him compensation for the reason that the plaintiff had not substantiated his contention that he had suffered any loss by adducing cogent evidence on the point. Aggrieved by the decision of the learned S. D. O. Ramgopal, defendant and Jamnalal 1odged an appeal in the court of the learned Commissioner, Kotah After traversing the arguments which were raised before him on behalf of the appellants the learned Commissioner held that there was hardly any ground for interfering with the decision of the learned S. D. O. In reaching the decision on the matter the learned Commissioner was influenced, to a considerable extent by the circumstance that on 28 10-1953 the plaintiff was in lawful possesion of the land in dispute. On that date when the defendants occupied the land they did so without any lawful authority. They were trespassers and the trial court had rightly ordered their ejectment from the land in dispute. Seth Jamnalal and Ramgopal have filed an appeal against the decision of the learned Commissioner in the Board impugning its legality and propriety on several grounds. It was contended on behalf of the appellants that the decree which the respondent had obtained against Devlal was not binding on them and could not affect their rights in the land. They had been cultivating the land as sub-tenants of Devlal for the last five years and they could not be ejected from it in execution of a decree against Devlal It was further contended that the courts below had erred in drawing inferences from facts, which were neither reasonable nor warranted by them. It was also urged that both the courts had failed to give effect to the entries in the khasra teep which ran in favour of the appellants for five years. It was alleged that as the transaction of sale did not culminate in a mutation it could not be given effect to. On behalf of the respondent it was urged that after the possession of the land had been delivered to him by the Tehsildar the appellants were not justified in taking the law into their own hands and with the help of others trespassing upon the land in question. As they had done so without lawful authority they were trespassers and had been rightly ejected from the land by the trial court. For a proper decision of the crucial point involved for determination in this appeal it is necessary to deal with the contentions of the parties at some length. Before we proceed to do so we think it necessary to refer to the provisions of Order 21, Rule 36 which have a material bearing on the point which falls for determination in this appeal. These provisions run as follows : "where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum, or other customary mode, at some convenient place, the substance of the decree in regard to the property. " This rule applies only to a case where the property is in the exclusive possession of the person who is not bound by the decree and who is entitled to remain in possession. The question which arises in the present case is whether the giving of possession in execution of an ex parte decree against Devlal would terminate the possession of Kana and Ramkishan who were recorded as sub-tenants of the land in dispute in Svt. year 2010. It is significant to note that the appellants who according to entries in the khasra girdawari were recorded as sub-tenants of the land in dispute in Svt. year 2008 and 2009, had apparently lost possession over it in the Svt. year 2010. If they had been cultivating it as sub-tenants in partnership with Kana and Ramkishan, as they allege, their names would not have been omitted from the entry in the khasra girdawari pertaining to Svt. year 2010. When the ex parte decree was executed Kana who was admittedly in possession of the land in dispute either as a sub-tenant or without authority did not raise any objection to the delivery of possession to the decree-holder On the contrary he appended his signature to the dakhalnama in token of his having acquiesced in the proceedings which were carried out by the official who was entrusted with the execution of the warrant for the delivery of possession. Delivery of possession in execution of the decree has not the effect of dispossessing a third person (not a party to the suit) who was previously in possession and was not: present when the delivery took place, but it will be operative as an ouster or dispossession of the third person if it takes place in his presence and adversely to his claim without any protest from him. If any authority is needed for the proposition set out above it will be found in 27 Madras 262 (270) D. B. ). In this connection we may also refer to 36 AIR 1949 Privy Council 124 wherein it was laid down that where the property was in the occupation of tenant of the judgment-debtor a symbolical delivery of possession under Order 21, Rule 36 effectively terminated the possession of the judgment-debtor and his tenant. In the case before their lordships of the Privy Council on a date which had not been definitely determined, but which was between the passing of the ex parte decree and the dismissal of the application by the plaintiff to set aside such decree, the plaintiff had granted to defendant No. 1 an oral monthly tenancy of the property in suit i. e. plot No. 2192 at a rent of Rs. 30/- p. m. As the tenancy was created during the pendency of the litigation it was hit by sec. 52 of the Transfer of Property Act which embodies the doctrine of lis pendes. The principle on which the doctrine rests is explained in the leading case of Bellamy vs. Sabine where Turner L. J. , said : - "it is as I think, a doctrine common to the Courts both of law and equity, and rests as I apprehend, upon this foundation that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail. The Plaintiff would be liable in every case to be defeated by the defendants alienating before the judgment or decreet, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceedings. " (1857) I/de G & J 566, 578, 584. The Privy Council decision referred to a previous decision of the Board in Thakur Shri Radha Krishna Chanderji vs. Ram Bahadur, AIR 1917 Privy Council 197. In that case their Lordship of the Privy Council observed as follows : - "in the High Court and before their Lordships it was further argued that symbolical possession would not avail against the defendants, but that only actual dispossession would interrupt their adverse possession. The High Court, following a decision of the Full Bench in Jugobundhu Mukerji vs. Ramchandra Bysack (J), held that symbolical possession availed to dispossess the defendants sufficiently, because they were parties to the proceeding in which it was ordered and given. This decision is one of long standing and has been followed for many years. Their Lordships see no reason to question it or to hold that this rule of procedure should now be altered. " In the present case if Kana and Ramkishan had stepped into possession of the land during the pendency of the litigation between Krishna Kumar respondent and Devlal apparently as sub-tenants of the latter then their case would be hit by the doctrine of lis pendes as enacted by sec. 52 of the Transfer of Property Act and rights of Kana and Ramkishan would be subservient to the rights of the parties to the litigation. Even if we proceed on the assumption in the present case that Kana and Kishan had started cultivating the land in dispute without any contractual arrangement with Devlal prior to the commencement of the litigation between him and Krishna Kumar the fact remains, as we have pointed out above, that Kana did not raise any objection to the delivery of possession in execution of the ex parte decree against Devlal and the delivery will be operative as in ouster or dispossession of Kana and Ramkishan from the land in dispute. It would also show that as Krishna Kumar baa lawfully stepped into possession of the land in dispute he could not be dispossessed from it ex parte in pursuance of a lawful authority. As the applicants with the help of Kana and Ramkishan had taken forcible possession of the land without any justification they were rightly treated as trespassers by the trial court and were liable to ejectment at the instance of Krishna Kumar. With these observations, which we hope would clear the ground, we advert to the arguments raised before us by the parties. Dealing with the first contention raised on behalf of the appellants we think it pertinent to point out that the appellants were not in possession of the land in dispute in Svt. 2010 as is clear from the entry recorded in the khasra teep pertaining to that year. If they were in possession of the land in dispute prior to that year they had either surrendered possession of it to Devlal or to Kana and Ramkishan and had faded out of the picture completely. They had no locus standi to call in question the proceedings which were carried out for the delivery of possession to Krishna Kumar in execution of the decree which he had obtained against Devlal. The contention is obviously devoid of substance. The second contention is equally untenable. The courts below had drawn inferences from facts, which cannot be dubbed as unreasonable or unwarranted. The case hinged on the point whether possession had been actual by delivered to Krishna Kumar in execution of the decree. If he had obtained it lawfully it could not be subsequently disturbed in an unlawful manner, as was rightly pointed out by the learned Commissioner. We cannot accept the third contention because the relevant entry in the khasra teep pertaining to Svt. 2010, which was the crucial year, runs against the appellants and indicates beyond any manner of doubt that they had lost possession over the land in dispute earlier. So far as the fast contention is concerned it obviously overlooks the circumstance that mutation proceedings though they are declared to be a judicial matter as defined by sec. 23 of the Rajasthan Land Revenue Act, 1956 are not intended to be judicial proceedings in which title to and proprietory right in immovable property are determined. They are much more in the nature of fiscal enquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of property may be put into occupation of them with greater confidence that the revenue for them will be paid. As held by their Lordships of the Privy Council in AIR 1940 (P. C.) page 29, such proceedings cannot be regarded as a final adjudication upon the rights of the parties in the land and are subject to a determination of such rights by a competent civil court. Turning to the contention raised on behalf of the respondent we may point out that there is a great deal of substance in it. The appellants, as we have observed above had completely faded out of the picture in Svt. 2010. Persons who were in possession of the land in dispute had been dispossessed from it in execution of the ex parte decree and had not raised any protest against it The appellants with the help of Kana and Ramkishan were not justified in trespassing upon the land subsequently in an unlawful manner. Taking these facts into consideration we are clearly of opinion that the courts below had come to a right decision in the matter. We uphold their decision and dismiss the appeal. . ;