- (1.) LADULAL and others plaintiff appellants have filed this appeal against the judgment and decree of the Revenue Appellate Authority, Udaipur dated 3. 7. 1963. Briefly the facts of the case are that the suit land bearing khasra Numbers 54, 56, 57 and the well No. 55 known as Pipliwali and situated in village Shankerpura belonged to the temple of Narsinghji Maharaj, Jahajpur. It is alleged by the plaintiff appellant that the bapi rights in the land were sold to them by Mahant Amardas for a consideration of Rs. 125/- in Smt. 2000 and they were given possession of the suit land. The plaintiffs remained in possession from St. 2000 to St. 2008 when they were dispossessed by the respondent Bharatdas, the present Mahant with the help of others. Bharatdas further sold the land to one Gokuldas one of the defendants. The defendant Bharatdas denied the sale of land by his predecessor Amardas and stated that he was still alive, but had left the office of the temple. Bharatdas pleaded that the land was in his hawala and from time to time he sub-let the land to others as well as to the plaintiffs. No dispossession was ever made by him. The trial Court rejected the plaintiff's suit on the ground that the plaintiff failed to produce Mahant Amardas, who was still alive and was alleged to have sold this land through a patta under his signature. The rent receipts produced by the plaintiff appellant for Smt. 2002, 2003 and Smt. 2004 for the cultivation of the land do not mention the particulars of the suit land. The trial Court for reasons recorded in the judgment did not believe that the plaintiff appellant's were able to prove the sale of land by Amardas to them through the patta. The first appellate Court on the appeal filed by the plaintiff appellants reversed the judgment and decreed the plaintiff's suit by holding that no inference could be drawn adverse to the plaintiff appellant for their failure to produce Amardas, the person who sold the land to them. The appellate Court considered that there was sufficient evidence to prove that the land was sold by Amardas to the plaintiff appellant particularly as there was no rebuttal evidence against it. It is against these contradictory findings of facts of the two subordinate Courts that this second appeal has come up for hearing before us.
(2.) IT may be noted that the plaintiff appellant brought a suit u/s 183 of the Rajas-than Tenancy Act for possession of the suit land against Bharatdas and others as trespassers. Before a suit of this nature can succeed, it is imperative under the law that the suit must be filed by a person, who is entitled to admit the other person as a tenant to the holding. Admittedly the holding belonged to the temple and hence to the defendant respondents. No transfer of the bapi rights in favour of the plaintiff appellants find a place in the record of right by way of mutation. In other words the plaintiff appellants are not the recorded tenants of the holding in dispute. The record still stands in the name of the temple i. e. the defendant respondents. The plaintiff appellants claim tenancy or the bapi rights in the holding in dispute on the alleged transfer of the land by means of a sale-deed, the execution of which is not admitted by the defendant respondents. An attempt was therefore made before the trial Court by the plaintiff appellants to prove the transfer of the suit land in their favour by means of a sale-deed by the present defendant Bharat Das which is alleged to have been executed by one Amardas, the predecessor in office of the present defendant appellant Bharatdas. The trial Court rightly found as a fact that no reliance could be placed on the proof adduced by the plaintiff appellants that the land was transferred by sale to them unless and until Amardas Mahant who was alive was made to appear as a witness. This evidence of Amardas was not found necessary by the first appellate Court before the plaintiff could succeed. In a suit of this nature he has to establish his tenancy. As far as the record goes plaintiff appellants are no tenants of the suit land. Only on the basis of sale-deed they claimed tenancy. According to Sec. 133 of the Rajasthan Land Revenue Act all succession and transfer of possession of the land must be reported to the Tehsildar within 3 months from the date on which such possession is obtained. U/s 134 neglect to report is punishable by law. IT is upon report that the Tehsildar has to make an enquiry u/s 135 of the aforesaid Act and to record such transfers or successions in undisputed cases. In case they are disputed he has to pass an order after enquiry according to law. No such procedure was followed by the plaintiff appellant for the transfer of tenancy in their favour. Similarly this transfer of tenancy by Amardas ex Mahant operated as a lease and unless it was mutated in the record of rights it required attestation by a competent Officer as provided u/s 33 of the Rajasthan Tenancy Act, 1955. Attestation of such transfer has to be made within 4 months of execution unless an instrument is registered. Sec. 33 sub-sec. 3 of the Rajasthan Tenancy Act further provides that if the instrument is attested it shall be deemed to be registered within the meaning of Indian Registration Act, 1908. Thus this transfer of land or creation of bapi rights in favour of the plaintiff appellants was neither attested nor registered nor mutated and in the face of the denial by the defendant respondent that the suit land was ever transferred by them, it cannot be said that the plaintiff appellants are the owners of the suit land i. e. the khatedar tenants of the suit land in question. The proper procedure for the plaintiff appellant was to file a suit for specific performance of the contract in the Civil Court and to force the hands of defendant respondent through the decree of the Court concerned to get the land mutated in their favour in the record of rights. The other remedy open to the plaintiff appellant was that they should have reported the transfer of an interest in land to the Tehsildar and requested him to enquire into the matter and to pass appropriate orders. Aggrieved parties could then have filed a regular declaratory suit to challenge the decision given by the Tehsildar or any other competent officer with regard to mutation of the land. No such procedure was followed and the plaintiff appellants adopted a direct method of proving his tenancy on the basis of an unregistered sale-deed which should not have been admitted into evidence as it involved a transfer of proprietary interest in a land of the value of Rs. 100/- and more and was thus compulsory registrable. Under the circumstances the delay in getting the plaintiff appellants recorded as Khatedar tenants by sale raises a doubt in our mind with regard to genuineness of the sale-deed and the sale transaction itself. There is no other corroborative evidence to show that the plaintiff-appellants were in possession of the suit land as tenants and paying rent to the defendant respondents. Therefore, the first appellate Court committed an error of law in deciding the question of fact that the sale in favour of the plaintiff appellant was genuine and thus they became the khatedar tenants of the suit land. In our view the finding of fact by the trial Court seems to be based on proper appreciation of evidence, specially in view of the fact that Mahant Amardas, who was predecessor in office of the temple did not appear to depose that he actually sold the land in question to the defendant. In any case the plaintiff appellant's suit u/s 183 of the Rajasthan Tenancy Act cannot succeed for the simple reason that they have failed to prove the transfer of tenancy rights in their favour. We, therefore, accept the appeal of the defendant appellants, set aside the judgment of the Revenue Appellate Authority and confirm the decision of the trial Court rejecting the plaintiff respondent's suit for ejectment. .;