- (1.) PER Shri Gajendra Singh This is plaintiff appellant's second appeal against the judgment and decree of the Revenue Appellate Authority Kota dated 24-3-1964 confirming the judgment of the Asstt. Collector, Bundi dated 26-12-1962 whereby the Asstt. Collector dismissed the suit for possession filed by the plaintiff appellants.
(2.) THE facts are that Dhankanwar Defendant respondent was one of the widows of Shambhusingh ex-jagirdar. He died and his jagir was resumed. Shrimati Dhan Kanwar was granted 176. bighas of land in lieu of maintenance after the resumption of the jagir in his khatedar right keeping in view the provisions of sec. 79 of the Bundi State Tenancy Act, 1942. This order was passed by the Govt. of Rajasthan No. F. 1 (31) Rev. 11/67 dated 15-11-1951. THE same order further directed that the plaintiff appellants who were the tenants cultivating the land should also be evicted. Some how or other the order could not be executed until as late as 11-3-1958 when the Tehsildar finally evicted the plaintiff appellant from the holding, on the directive received from the Government through the Collector, Bundi. Aggrieved by this order of eviction the plaintiff filed the present suit for restoration of possession and declaration of their khatedar rights atcs. THE trial Court and the first appellate Court both rejected the plaintiff appellant's suit. The only contention of the counsel for the appellant was that the plaintiff appellants were the tenants of the suit land and Mst. Dhan Kanwar the defendant respondent was their khatedar. They were in cultivating possession, as tenants since long and after the enforcement and coming into force of the Rajasthan Tenancy Act, 1955 no tenant could be evicted by any person except by due process of law. The counsel urged therefore that the Government in passing administrative orders for ejectment of the plaintiff appellant acted illegally. The plaintiffs are entitled to reinstatement of their holding. The counsel for the respondent's reply was that the suit by the plaintiff appellants u/s 183 of the Rajasthan Tenancy Act as subtenant was misconceived. They could not maintain that suit. Even u/s 187 of the Rajasthan Tenancy Act their reinstatement of the plaintiff appellants cannot take place as they were tenants liable to ejectment under the provisions of the Act. We have considered the arguments advanced from both sides and perused the record. It is an admitted fact that Dhankanwar was made khatedar of the suit land by the Government order of 1951 referred to above. The law that governed tenancy in the present area formerly known as the Bundi State was contained in the Bundi State Tenancy Act, 1942. Sec. 79 empowers the Government to confer Khatedari rights on the jagirdar or a muafidar the cancellation of his grant in respect of land under his cultivation as hawala bir or garden etc. In fact the Government of Rajasthan's order which conferred khatedari right on Dhankanwar was based on the provision contained in sec. 79 of the Bundi State Tenancy Act, 1942. The question is whether the Government was authorised or empowered by the Bundi State Tenancy Act to evict the tenants who were already cultivating the land in dispute. It is also an admitted fact that the plaintiff appellants were the tenants of the suit land and it was for this reason when the khatedari rights over the holdings were conferred upon Mst. Dhankanwar defendant respondent that the Government passed a further order directing that the tenants be evicted and Mst. Dhankanwar be given a clear possession of the suit land in order that she may be able to maintain herself out of the produce of these fields. The question is whether this order of the Government directing the subordinate revenue Officers to evict the tenant was legal or not. The legality of this order seems to have been recognised by the Asstt. Collector Bundi on the strength of the provision contained in sec. 6 of the Rajasthan General Clauses Act. The first appellate authority in an appeal filed by the plaintiff appellants did not care to go into this matter at all and affirmed the judgment of the trial Court on other considerations by holding that the appellants were merely tenants and as they were evicted they could not be reinstated. Bundi Tenancy Act 1942 which was the law in force when the defendant respondent was given khatedari rights over the suit land recognises 3 classes of tenants u/s. 16 of the aforesaid Act namely khatedars, shikmis, hawala and Jotas. The defendant respondent was admittedly a khatedar tenant u/s. 16 (b) (2) of the Bundi Tenancy Act which runs as follows : "every person who has acquired the rights of a khatedar under the orders of the Darbar whether after paying a 'premium-Nazarana or not' should be known as khatedar. " Admittedly the defendant respondents had acquired khatedari rights by virtue of the Government orders of 1951. The position of the plaintiff'appellants, who happened to be tenants at that time therefore is only that of a sub-tenant or a jota as defined in sec. 45 of the Bundi Tenancy Act as follows: "sub-tenant" or jota is a person who holds land from a tenant, from a tenant mortgagee or from the holder of the village service holding. " This term includes all local "forms" such as Jotas, adholias and batholias. It may be mentioned that the plaintiff appellants are neither shikmis nor they are the hawala jotas because these two types of tenants hold land directly from the Darbar in the khasla area like the khatedars or the jagirdar in the muafi area u/s 82 of the Bundi Tenancy Act. Under the aforesaid Act khatedars have heritable and transferable rights, but the shikmi has neither hold herself rights nor transferable rights, whereas the hawala jota hold land during the pleasure of the Darbar. We are not concerned with these two types of tenants because the plaintiff appellants could only be classified as sub-tenants of the khatedar and nothing more. Sec. 45 is the general section which governs the provision under the aforesaid Act for ejectment of tenants and which runs as follows: "sec. 45 - Grounds for ejectment of tenants - Any tenant, be he a Khatedar,shikmi, or a Hawala Jota, may be dispossessed of the whole, or any part, of his holding, under the orders of the Revenue Commissioner, on the ground that be has directly, or through a subtenant indirectly, contravened the terms on which he holds the land, or infringed the general conditions of the tenancy as laid down in sec. 4 heretofore" Thus it will be clear that this general section provides that no tenant of a Khalsa or a jagir whether he may be a Khatedar shikmi or a hawala could be ejected except on the ground that he contravened the terms on which he held the land or infringed the general condition of tenancy as laid down in the Bundi Tenancy Act. Similarly sec. 47 (a) of the Bundi State Tenancy Act provides as follows: Sec. 47 (a) Rights of a sub-tenant.- A sub-tenant is entitled to hold land, let to him, in accordance with such terms as may be agreed upon with the person from whom he holds, subject to his compliance with the general conditions of tenancy as laid down under this Act; Provided that - (i) he shall in no circumstances whatsoever lease out the land to any other person, (ii) he shall in no case be entitled to retain possession of the land after the person from whom he holds has surrendered, abandoned, or been dispossessed of, it under the provisions of this Act, or after the rights of the person from whom he holds have been resumed by, or have reverted to, the Darbar. It, therefore, follows that a sub-tenant was liable to ejectment under the Bundi Tenancy Act, if the khatedar had surrendered or abandoned or has been dispossessed of all those lands under the provisions of this Act. No case of surrender or abondon-ment has been made out in this case. No case has been made out that the Darbar under the Bundi Tenancy Act or resumed the right of the khatedar Dhankanwar or these rights have reverted to the Darbar in order to justify the eviction of the tenants. The only time when the Government of the Darbar intervened under the Bundi Tenancy Act was when the jagir of Shambhusingh was resumed and khatedari rights were conferred on Dhankanwar. The plaintiff appellants could either be the tenant of the category of khatedar shikmi or as hawala jota. Any of these 3 classes of tenants cannot be evicted by the Government u/s 45 of the Bundi Tenancy Act except under the orders of the Revenue Commissioner on the ground contravention of the terms of the tenancy had taken place or the general conditions of the tenancy as laid down in the Bundi Tenancy Act had been infringed. Sec. 45 of the Bundi Tenancy Act presumes a judicial order in the matter and a tenant could only be evicted by the Revenue Commissioner after he was satisfied that the condition for ejectment existed. No such satisfaction seems to have been made by the Revenue Commissioner while evicting the plaintiff appellants as tenants. The Government of course could not pass any such order in the administrative capacity. This order could only be passed by the Revenue Commissioner. This order no doubt was passed in 1951 by the Government through the Collector, but its execution was done only in the year 1958 when the Rajasthan Tenancy Act, 1955 had come into force. By virtue of repealed provisions contained in sec. 3 of the Rajasthan Tenancy Act, Bundi State Tenancy Act had also been repealed on the day the Rajasthan Tenancy Act came into force. It is listed in column 2 of the first schedule of the Act at item serial No. 1 the extent of repeal in column No. 3 of the first schedule as far as the Bundi State Tenancy Act is concerned is in toto. In view of the provision contained in sub-sec. 3 of sec. 3 of the Rajasthan Tenancy Act even custom or usage relating to agricultural tenancies prevailing at the commencement of the Rajasthan Tenancy Act in any of the merged State of Rajasthan having the force of law ceased to be operative if they are repugnant to or inconsistent with the provisions of the Rajasthan General Clauses Act saved the power of the Government to act under the Bundi Tenancy Act for eviction of a tenant, the exercise of this power would be illegal as it would be inconsistent with the provisions of the Rajasthan Tenancy Act, 1955. The Rajasthan Tenancy Act clearly lays down u/s 191 as follows: "161. Ejectment to be in accordance with the Act - -No tenant shall be ejected from his holding otherwise than in accordance with the provisions of this Act. " For the reasons stated above the order of the Government of Rajasthan executed through the Collector and the Tehsildar for eviction of the tenant was clearly an illegal and improper act No administrative orders can evict the tenant after the coming into force of the Rajasthan Tenancy Act which also repealed, inter-alia the Bundi State Tenancy Act in toto. Therefore, the eviction of the plaintiff appellants at the hands of the Collector Bundi and the Tehsildar was clearly illegal The questions is whether the plaintiff appellants are entitled to reinstatement from the holding in a suit filed by them against khatedar Dhankanwar. The next alternative is that the plaintiff have filed a suit claiming restoration of their possession on the ground that they were wrongfully ejected. Their remedy obviously lies under the provisions contained in sec. 187 of the Rajasthan Tenancy Act, 1955 which runs as follows: "187. Remedies for wrongful ejectment - (1) Any tenant ejected from or prevented from obtaining possession of his holding or any part thereof otherwise than in accordance with the provisions of the law for the time being in force, may sue the person so ejecting him or keeping him out of possession for all or any of the following reliefs namely: (i) for possession of the holding; (ii) for compensation for wrongful ejectment or dispossession, (iii) for compensation for any improvement he may have made Provided that no decree for possession shall be passed where the plaintiff at the time of the passing of the decree, is liable to ejectment in accordance with the provisions of this Act within the current agricultural year. " The question therefore remains is whether decree for possession in favour of the plaintiff appellants could be passed or not. The aforesaid section provides that such decree could be passed against the respondent appellants who were no doubt wrongfully ejected if they are liable to ejectment in accordance with the provisions of this Act within the current agricultural year. The question whether they are liable to ejectment or not under the provisions of the Act will have to be answered by the defendant respondents in order to prevent the plaintiff appellants from executing the decree for possession. This aspect of the case does not seem to have been gone into by the subordinate Courts; they have merely rejected the plaintiff appellants suit on some other extraneous grounds which are not justified. Therefore this matter has still to be gone into before a final decision could be taken whether the plaintiff appellants' suit should be rejected and they may be given a decree for possession of the holding from which they were illegally ejected by administrative order. For the reasons stated above we accept the appeal of the appellant, set aside the judgment and decree of the two subordinate Courts and remand this case back to the trial Court for considering the grant of relief to the plaintiff appellant u/s 187 of the Rajasthan Tenancy Act read with sec. 209 of the same Act, in order to save multiplication of these proceedings. The Court shall frame the necessary issues grant reasonable time for the production of evidence by both the parties and then after hearing the parties pass final orders. Per Shri S. L. Kakar.- I have carefully gone through the order proposed to be issued by my learned colleague in this case. Though, I agree with the conclusions arrived at and the operative part of the order, yet, I feel that the argument taken in the finding that the appellants were dispossessed without lawful authority should have a slightly different emphasis. I am, therefore, induced to add a supplementary note. The facts of the case, in brief, are simple. On the death of Shambhu Singh, ex-jagirdar the jagir was resumed and taken under the Court of Wards. For a number of years the question of succession was not decided. On 15-11-1951, the Government of Rajasthan in the Revenue Department issued an order giving Mst. Dhan Kanwar Bai Khatedari rights over 176 bighas of land for her maintenance. The appellants had been in cultivatory possession of this land from the time of Shambhu Singh. When it went under the Court of wards, they were kept on 'juwara' on a year to year basis. The order of the Revenue Secretary dated 15-11-1951 also directed that the appellants may be dispossessed. This order somehow was not executed till 13-3 1958. The appellants filed a suit under secs. 12a, 183, 188 and 189 of the Rajasthan Tenancy Act, 1955 on the ground that the appellants being tenants on the land should not have been ejected without due process of law as laid down in the Rajasthan Tenancy Act, which had come into force on 15-10-1955. An alternate prayer was also made that if it was found that they had been dispossessed, possession should be restored to them. The suit was dismissed by the trial court. It met with no success in the court of the Revenue Appellate Authority. I agree with the findings of my learned colleague that since this land was in the khudkasht of the jagirdar, the status of the appellants was only that of a 'jota' under the Bundi Tenancy Act, which was applicable in their case. A Jota under the Bundi Tenancy Act could not be ejected except in the circumstances laid down in the proviso to Sec. 46-A, which are not applicable in this case. It, however, appears from the statement of Bhanwar Singh, appellant, himself that when the land was under the Court of Wards, it was being auctioned from year to year, and they had also given a bid in the auction. Even if it be admitted that under the Court of Wards, the land was given for cultivation on an yearly basis, in 1951 the Revenue Secretary in the same order conferred khatedari rights on the suit land on Mst. Dhan Kanwar and passed orders for ejecment. Even if it be admitted that the Revenue secy, on behalf of the Court of Wards in his capacity as landlord was competent in 1951 to eject the appellants, after the expiry of the term, yet he was not able to effect this ejectment in 1951 with the result that the appellants continued in cultivatory possession till 13-3-1958. They would be deemed to be sub-tenants by holding ever. The jamabandi for the year St. 2013 to 2016, i. e. 1956 to 1958 A. D , shows them as 'jotas' (Sub-tenants) on the land in dispute. They, therefore, by this process acquired all the rights of a sub tenant under the Rajasthan Tenancy Act after its coming into force. They could only be ejected in accordance with the provisions contained in that Act, and not by any administrative order passed in 1951 which may have been competent in that year. The appellant were therefore unalawfully dispossessed. I also agree with the conclusion arrived at by my learned colleague that as subtenants they were not competent to bring a suit under Sec. 183 of the Rajasthan Tenancy Act, 1955. They had, however, made an alternate prayer for possession without mentioning the Section under which they wanted to be restored to possession. I agree with my learned colleague that as this prayer already exists in their plaint, and even if no separate application has been filed by them as required under the provisions of Sec. 209 of the Rajasthan Tenancy Act, the appeal should be accepted and the case remanded to the trial court for considering the grant of relief to the plaintiff-appellants under Sec. 187 of the Rajasthan Tenancy Act, read with Sec. 209 of the same Act. . ;