- (1.) APPEALS Nos. 23 and 37 of 1957 arise out of an appellate decree of the Additional Commissioner, Jaipur and will be disposed of by this judgment.
(2.) PUT briefly the facts are that Shri Narain Dass manager of the temple of Shri Sitaramji Maharaj situated in Balwari Tehsil Rewari brought a suit against Mula and three others for recovery of rent for Svt. year 2008, 2009 and 2010 amounting to Rs. 1289/8/- and ejectment from Khasra Nos. 413 and 412 of village Mehtavas on the basis of a Kabuliyat alleged to have been executed on Jeth Badi 12, Svt. 2008. It was averred in the plaint that the defendants were admitted as tenants of the land in dispute through the kabuliyat referred to above, that they agreed to pay 67 Mds. grain as annual rent, that the defendants made defaults in payment of rent for all the three Svt. years 2008 to 2010, that the plaintiff was entitled to get Rs. 856/- as arrears of rent for Svt. 2008 and Rs. 433/8/- for Svt. years 2009 and 2010 that the provisions of the Rajasthan (Protection of Tenants) Ordinance, 1949 were not applicable to the case and that the defendants were liable to be ejected from the holding besides being liable to pay the arrears of rent as claimed. Mula defendant contested this claim with the plea that the rents were not in arrears, that the tenancy was not created in Svt. 2008 but was of an old standing, that the claim as stated in the plaint was untenable in view of the provisions of the Rajasthan Agricultural Rents Control Act and Produce Rent Regulation Act, that on 23 6-56 the parties mutually adjusted their claims whereby the loan outstanding against the plaintiff and the arrears of rent were agreed to be mutually wiping off one another and that rent for Svt. 2010 (Rs. 184/) was deposited in the tehsil treasury. The trial court framed the following issues in the suit; - (1) Did the defendants cultivate the land in Svt. 2008 on a rent of 67 Mds. of grain? Were Durjan and Ghisa also joint in this cultivation? (2) Did the defendants not pay Rs. 1289/8/- to the plaintiff? (3) Did the plaintiff after the institution of the suit agreed on 23. 6. 54 to the adjustment of a loan of Rs. 640/ outstanding against him and did he execute a document clearing the dues. (4) Did the defendants deposit Rs. 184/- in the State Treasury? and (5) To what relief is the plaintiff entitled The plaintiff produced the Kabuliyat Ex, P. 1, a copy of Khasra Girdawari for Svt. 2005 (Ex. P. 2) and a copy of the Khasra Girdawari for Svt. 2008, 2009 and 2010 (Ex. P. 3) Jaimal Singh, Mata Deen, Mohan and Fateh Singh were examined as oral witnesses by the plaintiff The defendant produced the document alleged to have been executed by the plaintiff on 23-6 54, (Ex, D 1 ). Chander and Devkaran besides Mula himself were examined as witnesses for the defendants. The trial court decided all the issues against the defendants and decreed the plaintiffs suit for arrears of rent and ejectment. Mula went up in appeal before the learned Additional Commissioner who held that the document Ex. D. 1 was binding upon the parties as it represented the mutual adjustment, and that the parties were prepared to abide by its terms. He accordingly allowed the appeal in part and modified the trial courts decree in the manner that the portion relating to arrears of rent was set aside and that directing ejectment was confirmed. Both the parties have filed separate appeals before us. Appeal No. 23 has been filed by Mula and his prayer is that the suit brought by the plaintiff deserves to be dismissed with costs. Appeal No. 37 has been filed by Mahant Shri Narain Dass on behalf of the temple and the prayer is that the decree passed against the defendant should include the arrears amounting to Rs. 1289/8/- as well. As both the appeals give rise to common questions of law and fact they will be determined by this Judgment. We have heard the learned counsel for the parties and have examined the record as well. As pointed out above, the suit for arrears of rent and ejectment was instituted on 5. 6. 54 i. e. on a date when the Rajasthan (Protection of Tenants) Ordinance was in force. Ejectment was sought on the ground that rent for the last three years had fallen in arrears and that the defendant had deliberately neglected to pay the same. We may refer to sec. 4 of the Ordinance in this connection which lays down that during the period the Ordinance is in force no tenant shall be liable to ejectment from his holding on any ground whatsoever except those mentioned in the section itself. These grounds relate to a sale of the holding in accordance with law for the time being in force in execution of a decree for the recovery of arrears of rent and to an act or omission detrimental to the land in that holding or inconsistent with the purpose for which it was let Obviously the present suit for ejectment was not based on either of these two grounds and hence the prayer for ejectment was clearly untenable in the face of this express provision of law. The trial court decreed the suit on 8. 7. 55. On this date as well the Ordinance was in force and hence the decree in as much as it related to ejectment was clearly wrong. The appeal by the lower appellate court was decided on 3. 4. 57 i. e. on a date after the enforcement of the Rajasthan Tenancy Act, 1955. Sec 206 (1) of the Act clearly provides that all suits, cases, appeals, etc. relating to matters dealt with in this Act and pending before a revenue court on the coming into force of this Act shall be deemed to have commenced under this Act and shall be tried, heard and determined in the manner prescribed by or under this Act. Mula's appeal was pending before the lower appellate court when the Rajasthan Tenancy Act came into force on 15-10 55 and hence it should have been determined in accordance with the provisions of this Act. Sec 16. lays down that no tenant shall be ejected from his holding otherwise than in accordance with the provisions of this Act, Sec, 4 of the Act may also be referred to in this connection which lays down that every agreement whether made before or after the commencement of this Act which purports or would operate to restrict a tenant from interfering or exercising any right conferred on or secured to him by this Act shall be void to that extent. We will now proceed to determine the validity or otherwise of the decision of the learned Additional commissioner. It has been observed by the lower appellate court that the document Ex. D. 1 was submitted on the date when the issues were struck by the lower court and hence the trial court instead of taking further proceedings should have first asked the parties concerned about it and then decreed the suit in terms of the compromise. It can also be gathered from the judgment of the lower appellate court that the appellant's counsel raised no objection to the compromise. The learned Additional Commissioner has, however, not considered as to whe-ther the so called compromise Ex. D. 1 had any legal effect or not. O. 23 R. 3 C. P. C. has also been referred to in this connection. The essential ingredient of this provi-sion is that where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, the court may order such agreement or compromise to be recorded and may pass a decree in accordance therewith. In the first place, the plaintiff never cared to refer to this compra-mise or to seek any decree in terms thereof in the trial court. It was the defendant who brought it to the notice of the court in support of the plea that the amount of arrears had been adjusted against a loan which was due to the defendant from the plaintiff. It would thus appear that this document was not claimed by any of the parties to the suit to provide any basis for ejectment or compromise in that behalf. Secondly even if this objection be ignored it is incumbent upon the court to examine as to whether the adjustment was through a lawful agreement or not. We have gone through this document Ex. P. 1 and find that none of the defendants was a party to it, for it does not bear the signatures of any one of them It is a document executed by Mahant Narain Dass and the main portion of it recites the facts that the accounts between the parties have been squared up and that their disputes had come to an amicable settlement. There is also a recital in this document that the Kudi cultivated by the defendant will be given up. It appears to be highly probable that the consideration for the adjustment of the accounts was the factor that Mula would relinquish his tenancy rights and the validity of this consideration is to be examined by us. As the procedure for ejectment for arrears of rent is provided in Secs. 169 to 174 of the Act, we may refer to it briefly. Whenever rent is in arrears for two years or for a longer period, the Tehsildar may on the application of the land holder issue a notice to such tenant calling upon him within 30 days of the service of the notice to pay the amount of the arrear or to admit or contest the same. If the tenant does not appear or if he admits the arrear the Tehsildar shall pass an order directing him to pay such arrear. If the tenant contests the claim the notice on payment of the proper court fee shall be deemed to be a suit for arrears of rent, and the court on finding the amount due from the tenant shall pass a decree directing him to pay such amount into the court. If the tenant fails to pay the amount as ordered by the Tehsildar or as decreed by the court by the 31st of May next falling the expiry of the period of one year from the date of the passing of such order or decree, the tenant shall be ejected thereafter. A decree, for arrears of rent passed in a suit may be executed in addition to any other mode of execution permissible under the law by ejectment of the tenant from his holding. Provided that no tenant shall be liable to ejectment unless recourse has been had to all other modes of execution and the decree has not been completely satisfied by any such mode within two years from the date of such decree. The learned Additional Commissioner overlooked these mandatory provisions of law while deciding the appeal. Any agreement entered into before or after the passing of the Tenancy Act purporting to deprive the tenant of the right secured to him by the Act is void to that extent. The so. called compromise alleged to have been entered into between the parties on 23. 6. 55 ought to be viewed in this context. It clearly deprives the tenant of the right secured to him by the Act i. e. it amounted to his ejectment in default of arrears of rent without allowing him the period referred to above by the provisions of the Act. We therefore come to the conclusion that the compromise of 23. 6. 54, even if it be deemed to have been arrived at between the parties, cannot be regarded as a lawful agreement or adjustment of the dispute and hence cannot be given a binding effect. The fact as to whether Mula's counsel gave his consent before the Additional Commissioner or not is not of much significance in view of this finding for no amount of consent can validate a thing which is otherwise illegal, Mula's appeal therefore deserves to be allowed inasmuch as it relates to his ejectment. As regards the appeal filed by Mahant Shri Narain we may observe that the learned Commissioner decided the appeal which was filed before him without coming to this question at all. The trial court had recorded a finding to the effect that the plaintiff was entitled to Rs. 1289/8/ -. The learned Additional Commissioner when going into the propriety of this finding decided the appeal with reference to the terms of the compromise which we have held untenable. Naturally, therefore, the appeal deserved to be remanded to the Additional Commissioner with the direction that the question as regards the amount of rent, if any, deserves to be examined with reference to the evidence led by the parties. We therefore allow these appeals, set asite the decree of the lower appellate court and remand the case back to it with the direction that the appeal filed before it be reheard and determined afresh in the light of the observations made above as regards the amount of arrears, if any, due to the plaintiff from the defendants. The plaintiff's prayer for ejectment of the defendants from the land in dispute shall stand rejected. . ;