- (1.) THIS is a writ application by Ramdeo under Article 226 of the Constitution against an order of the Board of Revenue dated the 27th August, 1963, by which it modified the decree of the Additional Commissioner, Jaipur No. 1, dated the 12th February, 1960, and held that the petitioner before us, who was respondent there, be ejected from or certain agricultural holding, though a direction was further given that the ejectment be given effect to subject to the requirements of S. 184 (1) of the Rajasthan Tenancy Act, 1955 (No. 3 of 1955, hereinafter called the Act ).
(2.) THE material facts are these. On the 4th October, 1957, the contesting respondent Umdaram, whom we shall hereafter refer to as the only respondent in the case, instituted a suit, out of which this writ petition arises, against Ramdeo petitioner before us on the footing that the former was a 'maurusi' tenant of Khasra No. 298 measuring 8 Bighas and 11 Biswas in village Banad which was admittedly held in Biswedari right by Bhanwar Singh and Bahadar Singh and which land had been let out by him to Ramdeo for a period of three years commencing from Samwat year 2011 and that the latter had failed to pay rent for Samwat years 2012 and 2013 and had further refused to vacate the land even though his lease had come to an end. THE respondent, therefore, prayed that the petiti-oner be ejected and also for the recovery of a certain sum as arrears of rent. The trial court decreed the respondent's suit holding that the petitioner had become a trespasser after his lease had expired. The petitioner then preferred a first appeal before the Additional Commissioner Jaipur. That court held that the petitioner was not a trespasser and could not be ejected as such and that the only remedy open to the respondent was to proceed under sec. 180 of the Act. It also modified the decree passed by the trial court as to the quantum of the rent due from the petitioner to the respondent but that is not the subject-matter of dispute before us and, therefore, we need not go into the details of that controversy. The respondent then went in second appeal to the Board of Revenue. A Division Bench of the Board having posed the question whether a person holding agricultural land under a lease for a fixed period was a tenant or a trespasser in the event of his retaining possession after the expiry of the period of the lease referred it to its Full Bench. The Full Bench held that such a person was not a trespasser and would, on the expiry of the lease, continue to be a tenant from year to year. When the case came back before the Division Bench, the respondent made an application for permission to amend his plaint on the 29th September, 1961, to the effect that the petitioner was liable to be ejected under S. 180 (b) of the Act as his lease had expired and he was only a tenant from year to year thereafter and that the respondent required the land for his personal cultivation, and, consequently, the petitioner be ordered to be ejected. In the alternative, it was also prayed that if the aforesaid amendment be not allowed, then the relief under sec. 180 (b) be granted to him by invoking the aid of S. 209 of the Act. By its order dated the 10th December, 1962, the Division Bench of the Board rejected the prayer for amendment on the ground that if the amendment prayed for was allowed on the basis of the respondent's requirement of personal cultivation of the land in question, that would completely change the nature of his suit. As for the alternative prayer under Sec. 209 of the Act, the learned members observed that the grant of such relief stood in need of further consideration, and the question for decision was and would be whether there was any obstacle against the grant of such relief under S. 19 of the Act which confers Khatedari rights on sub-tenants under certain circumstances, and, therefore, they proceeded to call for certain further information about the minimum and maximum areas prescribed under S. 180 of the Act to see how the same would compare with the area of the land in dispute. It may also be pointed out in this connection that the learned Members repelled the contention of the petitioner that he had never obtained his lease from the respondent and they affirmed the finding arrived at by both courts below that the suit land had been leased out to the petitioner by the respondent for a period of three years ending with Samwat year 2013 and the same had expired. By its subsequent order dated the 27th August, 1963, another bench of the Board, after hearing learned counsel for the parties, found that the petitioner had not acquired any Khatedari rights in suit land and that his status was in no case better than that of a mere sub-tenant, and that being so, they found that there was no obstacle to his ejectment being ordered under S. 180 (b) of the Act and consequently acting under S. 309 of the Act, they ordered that the petitioner be ejected. It is against this order that the petitioner has come up in writ to this Court. The petitioner has raised numerous grounds in his writ application, but his learned counsel confined his attack to the following points - (1) As a result of the coming into force of the Rajasthan Zamindari and Biswedari Abolition Act, 1959 (Act No. 8 of 1959, hereinafter called the Abolition Act) and the notification dated the 28th December, 1959, published in the Rajasthan Rajpatra of the same date, by which January 15, 1960, was appointed as the date for the abolition and acquisition of all Zamindari and Biswedari estates throughout Rajasthan and for the vesting of such estates in the State Government, the respondent's appeal before the Board of Revenue had abated vide Section 5 (1) read with rule 5 of the Rules made under the Abolition Act, and in any case that appeal could not be proceeded with in the absence of the State having been made a party and without a notice of such appeal to the Collector and consequently the decision of the Board stood completely vitiated by this error of jurisdiction. (2) Again, as a result of the Abolition Act, the land in question which admittedly belonged to the Biswedars had vested in the State and then the petitioner became a Khatedar tenant of the same as he had started paying land revenue to the State himself and the State had also received it from him and consequently the order of the Board ejecting the petitioner from such land was manifestly illegal and inoperative. It was also contended in this connection that in any case the order of the Board directing the ejectment of the petitioner from the land in question would not be capable of being executed and, therefore, it should be set aside. (3) The Board had by its order dated the 10th December, 1962, dismissed the respondent's application for amendment of his plaint for relief on the ground that he required it for purposes of his personal cultivation under sec. 180 (b) (this seems to be obviously an error for sec. 180 (c)) and yet granted the same relief namely ejectment under sec. 209 of the Act and in so doing it is contended that it fell into a manifest error of law. (4) In any case, the Board committed gross and palpable errors of law in giving relief under sec. 209 of the Act for the following reasons - (a) The Board should, before granting the relief under sec. 209, have framed necessary issue or issues and then disposed of the application for grant of relief under that section. It is further contended in this connection that the petitioner had made an application drawing the attention of the Board to the necessity of framing issues on the 7th March, 1963. (b) The relief under sec. 180 (b) had become barred by time and was, therefore, not capable of being granted, and on that ground also the application under sec. 209 should have been rejected. (c) It was further contended that an application for ejectment under sec. 180 must be made between the first day of July and 30th day of September and not otherwise as provided under sec. 181 of the Act and that the respondent's suit, assuming it to be an application for the purpose of sec. 180, was filed not within this period of time but on the 4th October, 1957. We now proceed to dispose of the above contentions ad seriatim. Re. 1 - It is correct that the Abolition Act was made for the abolition and acquisition of the right, title and interest in an estate held by Zarnindars and Biswedars in this State and the object of the Act was to establish direct relationship between the tiller of the land and the State by doing away with the Biswedars or the Zamindars who used to be the middle-men between the two in the old state of things. This Act was brought into force from the 1st November, 1959, as a result of the notification of the State Government dated the 21st October, 1959, published in the Rajasthan Rajpatra of the same date. By sec. 4 of the Act, it was provided that the State Government may, by notification in the Official Gazette, appoint a date for the abolition and acquisition of any class of such estates and for their vesting in the State Government. As already stated, by notification dated the 28th December, 1959, all such estates stood abolished and became vested in the State Government. Sec. 5 (1) of the Abolition Act which was retrospectively amended by sec. 2 of the Rajasthan Act No. 35 of 1960 (published in the Rajasthan Gazette, Extraordinary, dated the 29th September, 1960) reads as follows: - " (1) Subject to any rules made in this behalf, all suits and proceedings affecting such estate, in which, because of the same having vested in the State Government, the latter will be a necessary party, pending in any court, civil or revenue, at the date of vesting, and all proceedings consequent upon any decree or order passed in any such suit or proceeding before such date, shall not be proceeded with till on an application made in that behalf, the State Government is made a party thereto. " Turning to the Rules now, rule 5 in so far as it is material for our present purpose reads as follows : - "suits and proceedings affecting abolished estates: - (1) In ail suits and proceedings by or against the Biswedar or Zamindar affecting his estate that has vested in the State Government by a notification issued under sec. 4 of the Act in which, because of such vesting, the State Government will be a necessary party that were pending in any court, civil or revenue, at the date of vesting, and in all proceedings consequent upon any decree or order passed in any such suit or proceeding before the said date, the court shall give a notice to the Collector (in whose district such estate was situated) regarding the pendency of the said suit or proceeding. (2), If an application is made in that behalf by any party to such suit or proceeding or by the Collector, the court, after notice to other parties, shall cause the State Government to be made a party and shall proceed with the suit or the proceeding as the case may be. The State Government so made a party may make any defence appropriate to its character on account of the vesting of the estate in it. (3) Where, within the time limited hereunder, no application is made under sub-rule (2) the suit or proceeding shall abate as regards the reliefs for or against the Biswedar's or Zamin-dar's estate that has vested in the State Government. (4 ). . . . . . . . . . . . . . . (5) Where a question arises as to whether a State Government is or is not the necessary party, such question shall be determined by the court. (6 ). . . . . . . . . . . . . . . (7 ). . . . . . . . . . . . . . . (8) In the application of this rule to appeals and revisions etc. , so far as may be, the word 'suit" shall be held to include an appeal or a revision or a reference. (9 ). . . . . . . . . . . . . . . (10 ). . . . . . . . . . . . . . . (11) All suits and proceedings that have been stayed in accordance with, clause (1) of sub-sec. (2) of section 5 of 'he Act as it stood prior to the 4th of July, 1960, and abated in accordance with rule 5 of these rules as it stood prior to this amendment shall be revived, suo moto or otherwise by the court, whereupon the provisions of sub-rules (1) to (10) shall be applicable. " Reading rule 5 (1) with sec. 5 (1) and to which sec. 5 has been made expressly subject it clearly appears to us that it is only suits and proceedings which have been instituted by or against a Biswedar or a Zamindar affecting his estate which would fall within the mischief of the Act. Those suits and proceedings, therefore, to which a Biswedar or a Zamindar is not a party, and where the dispute happens to be between the tenant of the Biswedar and his sub-tenant or any other person would not be covered by the Act. The present is a case of the latter description, inasmuch as the dispute here was not one to which the Biswedar was a party either as a plaintiff or a delendant but the dispute was between the respondent who claimed to be a Maurusi tenant front the Biswedar and the petitioner who, according to the respondent, was no more than a sub-tenant under a fixed lease which had expired. In these circumstances, we have no hesitation in holding that sec. 5 of the Abolition Act or the rules made under that Act were not attracted in this case and that the contention of the petitioner that the respondent's appeal before the Board had abated under the provisions of the Abolition Act or that the same could not be proceeded with in the absence of the State having been impleaded therein is without any substance. We are definitely of the opinion that the State was not a necessary party tot eh appeal, and, therefore, it need not have been impleaded nor a notice to the Collector need have gone in that behalf and the order of the Board cannot be held in law to have been vitiated on account of any such procedural error. Re. 2- The contention of the petitioner before us is that as soon as the Biswedar's right, title or interest in the suit land had vested in the State, he automatically became a Khatedar tenant thereof as he had started paying land revenue to the State on his own account, and the latter had also issued a receipt to him in that behalf, and, consequently, the Board had no jurisdiction to eject him from the said land. We are afraid, we see no force in this contention either. By sec. 5 which deals with the consequences of abolition made under the provisions of Sec. 4 of the Abolition Act, it is provided that all rents and cesses in respect of any holdings in such estate for any period after the date of vesting, which, but for such vesting, would have been payable to the Zamindar or Biswedar, shall vest in and be payable to the State Government, and any payment made in contravention of this clause shall not be a valid discharge of the person liable to pay the same. The effect of this clause, in our opinion, clearly is that the rent which was in the old scheme of things payable by the respondent to the Biswedar was, after the date of vesting, to be payable to the State Government and that any payment after the date of such vesting to the Biswedar shall not be considered as a valid discharge of the respondent's liability to pay the same to the state. This provision does not help the petitioner in any way, and we do not see any warrant for holding that on account of anything contained therein the petitioner became a Khatedar tenant in his own right. The position became still clearer under Sec. 30 of the Abolition Act, which reads as follows : - "subject to the provision of Sec. 15, 15a, 15b and 16 of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955) every tenant in an estate, other than a tenant of Khudkasht or a subtenant, shall, as from the date of vestign, be the Khatedar tenant of the land comprised in his holding unless he has acquried Khatedari rights therein before such date, and shall, as from the date of vesting, pay to the State Government, until rents are settled in accor dance with the provisions of the Rajasthan Land Revenue Act, 1956 (Rajasthan Act 15 of 1956 ). by way of rent therefor the same amount as he had been paying to the Zamindar or Biswedar immediately before such date but not exceeding twice the land revenue payable in respect thereof. " thereof" By this provision, as soon as the land in question got vested in the State, the respondent became a Khatedar tenant thereof and he was required to pay to the State Government the pre-existing rent as prescribed under the section until it is otherwise settled in accordance with the provisions of the Rajasthan Land Revenue Act, 1956. The position, therefore,was that after this land was vested in the State, it was the respondent who became the Khatedar tenant thereof and not the petitioner. We may point out in this connection that it is the concurrent finding of all the tribunals below that the respondent was the tenant-in-chief of the land in question. Admittedly sees. 15a. 15 B and 16 to which Sec. 30 is inter alia subject have no application in this case. Not can the petitioner be held entitled to the benefit of sec. 15 in this case which applies to a person who, at the commencement of the Act, was a tenant of the land otherwise than as a sub-tenant. The mere circumstance that the petitioner had started paying land-revenue to the State could not, in our opinion, improve his position, for anybody could do so on behalf of the Khatedar tenant. It may be further mentioned here that learned counsel in support of his submission in this connection relies on the receipt Ex. 1 which was passed to him by the Patwari in lieu of the rent paid by him for the Samwat years 2015-2016. A perusal of this receipt would, however, clearly show that the column as to the class of the deposi-tor was significantly left vacant. We have no doubt that if the petitioner had been recognised as a Khatedar, he should have been described as such in the receipt in the normal course of things. This receipt, therefore, does not advance the case of the petitioner any further. Learned counsel has not been able to satisfy us even on any other score that his client was entitled to be treated as a Khatedar by virtue of anything contained in the Act. The learned Members of the Board in their final order took into account the provisions of S. 19 of the Act according to which certain persons including subtenants of lands were entitled to be recognised as Khatedar tenants. Now the view of the Board was that so far as clause (a) of sub-section (1) of this section was concerned, the petitioner was not entered in the annual register current at the commencement of the Act as a sub-tenant of the land in question, and as for cl. (b) it was further held that he had not obtained the necessary declaration under sub-sec. (2) thereof, and consequently he was not entitled to the benefit of that section. We have not been satisfied that the view taken by the Board in this connection is vitiated by any error of law which would attract our certiorari jurisdiction. In these circumstances, we are clearly of the view that the petitioner's contention that he had become a Khatedar tenant of the land in question after the Abolition Act had come into force or even otherwise has no legs to stand on and we hereby reject it as untenable. Re. 3 - When the Full Bench of the Board had decided that the petitioner after his lease had expired could not be treated as a trespasser and could not be ejected on that footing, the respondent applied for an amendment of his plaint. In his application for amendment the respondent took up an alternative position. In the first instance, he prayed for permission to amend his plaint so as to bring his case within Sec. 180 (1) (c) on the ground that the petitioner's lease had expired and that he required his land for his personal cultivation. Alternatively he further prayed that if his application for amendment did not meet the approval of the Board, he may be allowed the relief of ejectment against the petitioner under Sec. 180 (b) read with Sec. 209 of the Act. Now sec. 209 reads as follows : "in any suit or proceeding, the court may, on the application of the plaintiff and after framing the necessary issues, grant and relief which the court is competent to grant and to which it may find the plaintiff entitled, notwithstanding that such relief may not have been asked for in the plaint or application; Provided that, after framing such issue, the court shall, on the request of either party grant reasonable time for the producton of evidence. " The Board rejected the prayer for amendment because in its opinion that would have changed the nature of the respondent's suit. The Board was perfectly entitled to take the view it did, and it should be going too far to say that such a view could not be taken in law. At the same time, even the learned Members of the Board before whom the application for amendment and grant of relief under sec. 209 of the Act initially came for consideration, do not appear to us to have thought that the refusal of the amendment application was enough to non-suit the respondent once and for all. On the other hand, they seem to have inclined to the opinion that the necessary relief by resort to S. 209 could and should be granted to the respondent if there was no legal obstacle in the way thereof. When they said so, they apparently had two things in mind. The first was that if the relief arose from the allegations made in the plaint itself, then such relief could always be granted to a plaintiff even if it had not been specifically asked for. The other thing that they had in mind was whether anything had enured in the meantime to the benefit of the petitioner before us who was respondent before the Board which had improved his status and made him a Khatedar tenant. It is against this background that we have to see whether the learned Members of the Board before whom the petitioner's prayer under sec. 209 of the Act came up for final disposal fell into any serious error of law by the manner in which they disposed of it. We pause here for a moment and should like to point out that the object of the Legislature in enacting sec. 209 is, broadly speaking to eschew multiplicity of litigation, and it has, therefore, been provided that if a prayer is made to the Court to grant certain relief to the suitor which relief has not been specifically asked for in the plaint, then, notwithstanding such omission, appropriate relief may be granted to him provided that it is legally within the competence of the court to giant it and it is a relief to which the suitor is lawfully entitled, which indeed appears to us to be the basic condition for the grant of such relief, and it has been further provided that necessary issues may be framed and appropriate opportunity to the parties to lead evidence be provided before such relief is actually granted or refused under this section. The contention of the petitioner is that the Board having refused the prayer for amendment as sought by the respondent should have also refused to give the benefit of sec. 180 (b) read with sec. 209 of the Act. We are unable to agree. The prayer for amendment as sought by the respondent went much further than the original suit; but the refusal of that prayer need not have necessarily involved the refusal of the further prayer for relief under sec. 180 (b) if it was otherwise permissible according to law. The case of the respondent, put in a nut-shell, was that the petitioner was his subtenant for a fixed number of years and that his lease had come to end and that he refused to vacate the former's land when he was asked to do so and on these allegations, the respondent's case was that the petitioner was a trespasser. The point of trespass finally failed before a Full Bench of the Board and thus became conclusive. It was in these circumstances that the respondent invoked the application of sec. 209 read with sec. 180 (b) and prayed that the petitioner be ejected on the facts proved in the case. By this latter section, it is provided that a tenant or a sub-tenant holding from year to year may on application be ejected and sec. 181 further lays down the conditions for such ejectment. The Board seems to have thought and rightly that the relief which the respondent latterly sought before it substantially arose from the allegations of fact set out in the plaint itself, though the legal position contended for on behalf of the respondent namely that the petitioner was a trespasser was incorrect. For ourselves we think that such relief unquestionably arose from facts which were held to be proved. That being so, if the Board in the interest of avoidance of multiplicity of litigation felt inclined to take recourse to sec. 209 of the Act and grant relief to the respondent on that footing, we are not prepared to hold that in doing so it went back on anything which it had earlier decided or that it necessarily committed an error of law. This ground, therefore, also fails and is hereby repelled. Re. 4 - This brings us to the last head under which a number of contentions have been raised. The first is that the Board must have framed issues before it finally disposed of the respondent's application under sec. 209 of the Act and that in failing to do so in spite of the petitioner's application dated the 7th March, 1963, it had acted wholly arbitrarily and against the elementary principles of natural justice. We are not impressed by this argument. We should like to take the opportunity of pointing out that, broadly speaking, when an application under sec. 209 is made and comes to be disposed of it would be advisable to frame issues and give the parties an opportunity to lead evidence where it may be called for. But the failure to frame issues in a given case cannot, in our considered judgment, have the effect of necessarily vitiating an order provided that has not prejudiced the case of any of the parties or resulted in a gave miscarriage of justice. Besides, we are far from satisfied that the petitioner was at all serious about his application in this behalf. In the first place, this application appears to us to have been made at a rather belated stage. The Board had passed its first order on the 10th December, 1962, and the petitioner made his application as late as the 7th March, 1963. In the second place, the petitioner does not appear to us to have pressed this application to the Board before it gave its final decision on the 27th August, 1963. No contention was raised before the Board in the course of final arguments before it that issues were required to be framed or that the failure to do so would cause prejudice to the petitioner. We are, therefore, inclined to the opinion that he waived his application. In fact the case before the Board in the shape in which it came before it at the final stage revolved round a very narrow point as to whether the petitioner was entitled to the benefit of sec. 19 of the Act and no evidence to decide that question seems to have been called for. In any case, we are not satisfied that the omission to frame issues has caused any prejudice to the petitioner. That being so, we are not prepared to hold, in the circumstances of the case, that the omission on the part of the Board to frame any issue or issues under sec. 209 was an illegality which would have the effect of vitiating this order. Coming to the next contention under this head, the point of limitation was argued by learned counsel for the petitioner from two ways. In the first place, it was contended that the respondent's prayer for relief u/sec. 180 was barred by time as having been made beyond one year after the cause of action arose, and, therefore, it should have been rejected on that ground, even if the benefit of sec. 209 was given to the respondent. Now item No. 68 of the Third Schedule of the Act admittedly applies to a case like the present. This item reads as follows : - S. No. Section of of Act Description of suit, application or appeal Period of limitation Time from which period begins to run Proper court fees to dispose of Court, Officer competent 63 180 Application for ejectment of Ghair Khatedar tenant, tenant of Khudkasht or subtenant : (i) Under clause (a) or (d) (a) by any of the persons enumerated in Section 46. Three years From date of commencement of Act or 3 years from cessation of disability whichever may be later. 25 Naye paise Assistant Collector (b) in any other case Three years Date of commencement of Act 25 Naye paise Assistant Collector (ii) Under clause (b) and (c) One year When the cause of action arise 25 Naye paise Assistant Collector The relevant clause of this item that governs the case is sub-item (ii) which provides a limitation of one year commencing from the point of time when the cause of action arose. The question, therefore, is when the cause of action arose in this case. It is indisputable that the petitioner's lease was for three years extending from Samwat year 2011 to Samwat year 2013. Consequently it expired some time in 1957. The respondent admittedly filed this suit, out of which this writ application arises, on the 4th October, 1957, in the court of the Assistant Collector Kotputli. In these circumstances, it seems to us to be completely futile to urge that the respondent's suit treating it to be an application under sec. 180 was barred by time. We, therefore, reject this plea as untenable. The point of limitation was, however, argued before us from another angle. And that brings us to the last contention under this head. It is argued that an application for ejectment under sec. 180 must have been made between the 1st July and 30th September and not otherwise in accordance with sub-sec. (1) of sec. 181 of the Act. The short answer to this contention is that it was neither raised before the Board nor has it been taken up as a ground of grievance in the writ application filed before this Court. We are, therefore, of the opinion that the petitioner cannot be allowed to raise this ground for the first time in this Court and we decline to entertain it. For the reasons mentioned above, we conclude that this writ application fails and it is hereby dismissed but under the circumstances we make no order as to costs. . ;