- (1.) THIS second appeal has been filed under sec 224 of the Rajasthan Tenancy Act against the judgment and decree dated 28. 8. 63 of the learned Revenue Appellate Authority, Bikaner, rejecting the appeal of the plaintiff-appellant against the judgment and decree of the Sub Divisional Officer, Nohar dated 28-8 62, whereby the learned Sub-Divisional Officer dismissed the suit for declaration as khatedar in respect of the disputed khasra numbers filed by the plaintiff-appellant.
(2.) IT is averred that the learned lower courts have ignored the fact that on 12. 8. 56, the plaintiff was put into possession of these lands by virtue of a decree of hon'ble the High Court and since then he has been in continuous possession of these lands. IT is, further, averred that originally these lands were in the cultivatory possession of his ancestors but they had been illegally occupied by Tikuram, respondent in collusion with the Jagirdar which obliged the plaintiff appellant and his cousin Nanda, deceased, to file a civil suit for reinstatement and possession against them. This civil suit culminated in the aforesaid decree of the High Court dated 4. 3. 55 and Dulla was placed in possession of these lands as a result thereof on 12. 8. 56. The appellant contends that as Tiku was in unlawful possession of the lands at the time of the settlement in St. year 2000, he also managed to get his name entered in the settlement records. The effect of the judgment of the High Court should be to place him in the same position as Tiku and he should, therefore, be deemed to have been in continuous and unbroken possession of the lands since St. year 1970. As such, it is argued that he was entitled to the declaration of khatedari rights in his favour. Tiku has not appeared despite notice. The case was, therefore, heard ex-parte against him. The State was, however, represented by the Government Advocate who defended the order of the Revenue Appellate Authority on the ground that these lands fell in the Bhakra area and no khatedari rights could, therefore, accrue to the appellant by virtue of the proviso to sec. 15 (1) of the Rajasthan Tenancy Act, which bars the accrual of the Khatedari rights under sec. 15 (1) to any tenant to whom land is or has been let out temporarily in Gang Canal, Bhakra, Chambal or Jawai Project area, or any other area notified in this behalf by the State Government. In support of his contention, he referred to Ratna vs. State of Rajasthan (1963 RRD 65), wherein a D. B. of this Board has held that no khatedari or occupancy could be granted in Jagir lands under the Bikaner Tenancy Act in view of secs. 18 and 24 (7) thereof and as the applicants in that case were allottees from the Jagirdar they were not entitled to be declared khatedar tenants under sec. 15 (1) of the Rajasthan Tenancy Act. This contention of the learned Government Advocate was repelled by the learned counsel for the appellant by referring to Surjaram vs. State of Rajasthan and others reported as 1963 RRD 1. In this case, the learned Judges of the High Court had an occasion to examine the import of the proviso to sec. 15 (1 ). They came to the conclusion that this proviso is applicable to tenants who held land temporarily and not otherwise, It was held by the learned Judges that the person whose khatedari rights had been recognised by entering his name in the record of rights could not be regarded to hold land on temporary lease. In the context of that case, they held that the petitioner who was obviously a tenant otherwise than a sub-tenant or tenant of khudkasht in respect of the fields referred to therein at the commencement of the Rajasthan Tenancy Act on 15. 10. 55 was entitled to the grant of khatedari rights under sec. 15. Thus, so far as the legal position is concerned there can be no manner of doubt that the proviso to sec. 15 (1) bars the accrual of khatedari rights in Bhakra area to temporary tenants only. In the present case, therefore, what is pertinent is to determine the status of the appellant on 15. 10. 55 in view of the High Court judgment, it must be held that the appellant must be deemed to have been in continuous possession of the lands since before Smt. year 1996 when he was dispossessed by Tiku and the Jagirdar, but as stated above, the case would turn on the nature of the title held by the appellant. We find that the lower courts have not addressed themselves to this question, particularly, they have not examined the effect of the operation of the Rajasthan Land Reforms and Resumption of Jagirs Act. It is stated that the Jagir came to be resumed in 1954 when Tiku was holding the lands. It is, however, not clear what status was granted to Tiku after resumption. If Tiku was recognised as a tenant after resumption, surely the appellant who stepped into his shoes, as a result of the decree of the High Court, should be deemed to be a tenant and will be entitled to the benefit of sec. 15 (1 ). On the other hand, if Tiku had no permanent rights, the appellant cannot claim a better status. We would have proceeded to examine this question ourselves but we find that the record before us is not sufficient to enable us to do so. In the result, therefore, we are constrained to accept this appeal, set aside the impugned order and remit the case to the trial court for further enquiry into the matter in accordance with the law and in the light of the observations made above. .;