- (1.) APPEAL No. 8/1965 is directed against the judgment and decree of the Revenue Appellate Authority, Kota, dated 8. 3. 1965, confirming the decree of the Sub-Divisional Officer, Baran, dated 6. 8. 1963, whereby the suit of the respondent for arrears of rent for the years 2011, 2012 and 2013 Samvat in respect of Khasra numbers 62 and 63 situate in village Bhoja Hedi was decreed and the ejectment of the appellant was ordered.
(2.) APPEAL No. 21/1963 is directed against the judgment and decree of the Revenue Appellate Authority, Kota, dated 24. 7. 1963, whereby the rent suit for the years 2014, 2015 and 2016 Samvat between the same parties was decreed concurrently by the Revenue Appellate Authority and the Sub-Divisional Officer, Baran. In these two appeals no plea has been made by the appellant with regard to the quantum of rent decreed. However, in both these appeals, the appellant has denied that he was the sub-tenant or shikmi liable to pay rent. In appeal No. 8/65 the appellant has also denied liability to ejectment under sec. 180 of the Rajasthan Tenancy Act, 1955. In both the suits the plaintiff respondent stated that he was the Khatedar tenant of the land in dispute and that he had let the land to the defendant-appellant for Smt. 2008 by a 'kabuliyatnama' (Ex. P-1) and again in Smt. 2009 by a Kabuliyatnama (Ex. P-2 ). The defendant-appellant had not paid rent, and he had brought a suit which was decreed in his favour and against the defendant appellant in respect of the rent for the year 2009 Samvat, the decree having been eventually upheld by the Board of Revenue. He further stated that the defendant-appellant had remained in possession but had not paid rent since the Smt. year 2009. The defendant-appellant took the plea that the land in dispute had remained in the possession of his sons Tej Singh and Akhoyraj Singh since Smt. 2008, and that Akheyraj Singh and Tej Singh had separately applied for declaration as Khatedars under sec. 19 of the Rajasthan Tenancy Act, 1955. He prayed that the proceedings be stayed untill a decision had been taken on the application of Akheyraj Singh and Tej Singh. The defendant-appellants produced Ex. D. 1 which is a notice issued by the plaintiff-respondent to him on 26. 3. 1963. It says that the defendant-appellant had not paid rent and that his sub-tenancy would be terminated after the period of notice. To this the reply of the defendant-appellant (Ex. P-4) was that the land had been cultivated by his sons Akheyraj Singh and Tej Singh, and that he had been unable to pay rent because of adverse crop conditions. He promised to pay the rent for one year at an early date, but pleaded that the land should be allowed to remain with Akheyraj Singh and Tej Singh. There the matter rested. The Khata jamabandi (Ex. P. 5) for the period Smt. 2009 to 2012 shows the plaintiff-respondent to be the khatedar throughout. Only for the year Smt. 2009 Tej Singh Akheyraj Singh are entered as shikmis or sub-tenants, but this entry regarding sub-tenancy is not repeated in the subsequent years. The lower courts held on the evidence that the defendant-appellant was the sub-tenant of the land in dispute and not his sons Tej Singh and Akheyraj Singh. It may be noted here that in his reply to the plaintiff-respondent (Ex. P. 4), the defendant-appellant had stated that he wanted the land to remain with his sons, so that the profit from the land may be used for their education, his sons being described in his reply as children. It is in evidence that Tej Singh and Akheyraj Singh were not staying in the village, but were receiving education elsewhere. Both the lower courts found that the so called sub-tenancy of Tej Singh and Akheyraj Singh was an oblique device adopted by the defendant-appellant to escape liability from the payment of rent, and that in his reply (Ex. P. 4) the defendant-appellant never stated that he would be paying rent on behalf of his sons and not on his own behalf. The lower courts also noted that the decree for rent for Smt. 2009 was against the defendant-appellant and not against his sons. Here before us, the old arguments have been repeated that the defendant-appellant was not the sub-tenant himself but that the status of sub-tenancy vested in his sons. On the evidence we see no reason to differ from the rinding of the lower courts in this regard. The learned counsel for the defendant-appellant has pleaded that under sec. 83 of Kota Circular No. 3, shikmis are sub-tenants who were admitted only for one year, and that in any case after Smt. 2009 the defendant-appellant had ceased to be a sub-tenant. We see no force in this plea. Sec. 83 of Kota Circulars No. 3 merely says that if land has been let to a shikmi for one year, his right to cultivate ceases after the harvest of the year. This merely means that the right of the sub-tenant ceases after one year and not that the sub-tenant automatically vacates the land. Both the lower courts have held that no surrender of the land by the defendant-appellant has been proved. In these circumstances, the defendant-appellant is liable to pay rent and to be treated as subtenant until he vacates the land. The learned counsel for the defendant-appellant has argued that a sub-tenant who has defaulted in payment of rent cannot be ejected under sec. 180 of the Rajas-than Tenancy Act, 1955. His argument is that when a sub-tenant defaults in paying rent, the land-holder has to apply to the Tehsildar for recovery of rent under sec. 169 and that subsequently if the liability to pay rent is contested, the proceedings have to be treated as a suit under sec. 170 of the Act. His further argument is that only if the sub-tenant fails to pay the decretal amount within the period specified in sec. 171, can his ejectment be ordered. He urges that in the present case no final decree for the arrears of rent has yet been passed and the defendant-appellant cannot be ejected. We find no force in this plea. Sec. 154 of the Rajasthan Tenancy Act clearly says that arrears of rent shall be recoverable by suit or by notice in accordance with the provisions of sec. 169. Thus, there are two remedies open to a land-holder in the matter of recovery of rent. He may bring a suit or he may apply to the Tehsildar under sec. 169. In the present case the plaintiff-respondent chose to bring a suit and he was well within his right to do so. In his suit for the recovery of rent for the years 2011, 2012 and 2013 Smt , the plaintiff-respondent also sought the relief of possession under sec. 180 of the Act, and in our opinion, he could seek the relief of recovery of arrears of rent as well as of possession in the same suit. A sub-tenant can always be ejected by the khatedar tenant under the provisions of sec. 180 (l) (b) without assigning any reason if the sub-tenant holds from year to year as in the present case. As a last resort, the learned counsel for the defendant-appellant has contended that the lower courts should have examined whether the defendant-appellant or his sons had become khatedar tenants under sec. 19 of the Rajasthan Tenancy Act. Unfortunately for him, Ex. P. 5 which is the jamabandi for the period 2009 to 2012 Samvat, does not show either the defendant-appellant or his sons to be the recorded sub-tenants in Samvat 2012. That being so, it was for the defendant-appellant to prove that he or his sons had made an application for the recognition of khatedari rights within the period prescribed in sub-sec. (2) of sec. 19. As the trial court has observed, this the defendant-appellant failed to do. Even before us, no attempt has been made to prove that such an application had been made. Therefore, the plea of acquisition of khatedari rights under sec. 19 is untenable. The result is that we dismiss both these appeals. . ;