- (1.) THIS second appeal has been filed by the plaintiff against an appellate decree the Additional Commissioner, Jodhpur, dated 19 3-1956 reversing the decree of the trial court and rejecting the appellant's suit for ejectment.
(2.) THE appellant based his claim on the ground that a well known as Togava and land attached to it (Khasra Nos. 1010, 1010/1 to 1010/9 & 1011, measuring 55 Bighas, 5 Biswas,) was in the Joint Bapi Khata Muafi of Dhanna defendant No. 1 and Dhura, sons of one Sada; that on Dhula's death his widow Smt. Singari came in possession of the land and sold her half share in the Bapi rights in favour of the plaintiff, that mutation was allowed in favour of the plaintiff whereby he was recorded as owner of the Bapi to the extent of one half; that Dhanna and his sons Khema and Hemiya defendants Nos 2 and 3 prevented him from cultivating the land and dispossed him wrongfully. THE plaintiff prayed for the following reliefs: - (1) Recovery of possession over the well and its Jao; (2) A declaration that the plaintiff was entitled to cultivate half of the land in both the crops and to irrigate them from the well to the extent of his share, and (3) A permanent injunction restraining the defendants from interfering with the cultivation of the plaintiff THE defendants denied the claim. THEir plea was that after Dhulla's death the land had been entirely and exclusively in their possession; that the plaintiff has no light or title to cultivate the land or to take water from the well; that Smt. Singari had no authority to transfer her share; that the transfer was illegal and unenforceable at law. THE trial court after framing necessary issues in the case and recording the evidence of the parties came to the conclusion that Smt. Singari came in possession of the land after Dhula's death; that Smt. Singari had full authority to sell her share; that the sale was genuine and enforceable. THE trial court passed a decree to the effect that the defendants should deliver possession over the well and the land in dispute to the plaintiff to the extent of the share of the deceased Dhulia and that it be also declared that the plaintiff was entitled to cultivate the land to an equal share. THE defendants went up in appeal before the learned Additional Commissioner, Jodhpur. who after examining the evidence came to the conclusion that the disputed land was not in possession of Smt. Singari and that she was never in separate possession of the land in dispute; that Mishrimal, plaintiff never got possession of the land; and that the first attempt made by him to recover possession met with resistance from the defendants. It was also held by the learned Additional Commissioner that Smt. Singari had no authority to transfer her share; that there was no legal necessity for her to transfer her share; that as the possession was not so delivered the sale deed was not effective. THE appeal was, therefore, allowed by him and the plaintiff's suit was directed to be dismissed. Hence this second appeal by the unsuccessful plaintiff. The learned counsel appearing for the applicant has strenuously argued before us that the findings of fact arrived at by the lower court are not based on a proper appraisal of the evidence. The main attack is directed upon the finding regarding Smt. Singari coming in possession and the plaintiff being put in possession by her as laid down in the sale deed. We have examined the Ghast Girdawari, Exhibit P. 4 and 22 for Svt. 2003 to 2009. It is evident therefrom that Smt. Singari's name does not appear therein as cultivating either separately or jointly any portion of the land in dispute and the name of her husband appears throughout along with Dhanna. Mishrimal's name was put down subsequently along with Dhanna and evidently this was in obedience of the decision of the Collector in the mutation case dated 25 8-1952. We have perused this judgment as well. The Tehsildar had refused mutation in favour of Mishri Mal on the ground that the alienation in favour of Mishri Mal by Smt. Singari was illegal and the revenue courts were not bound to recognise it. The learned Collector in his decision dated 25. 8. 1952 held that the alientation by a widow under the Marwar Tenancy Act was only voidable and could be challenged only by the next reversioner and that the widow who had made the alientation had no right to challenge the same. It is clear from this decision that the learned Collector did not consider the question as to whether possession had or had not actually been transferred by Smt Singari in favour of Mishri Mal - a question which should have been given the greatest consideration while deciding mutation proceedings. To find out as to whether actually possession was transferred to Mishri Mal or not we have gone into the sale deed, Exhibit D. 1 as well. There is no mention in it that Smt. Singari was ever actually cultivating any specific Khasra Nos. or that possession over any of them was specifically transferred in favour of Mishri Mal. What is mentioned in the sale deed is a transfer of Smt. Singari's share in the tenancy of the land which stood jointly in the name of Dhulia and Dhanna. Under these circumstances the finding of the learned Additional Commissioner that Smt. Singari never came in possession after her husband's death over any specific portion of land or that Mishri Mal was not put in actual possession cannot be considered as invalid or against the weight of evidence on record. As regards the right of Smt. Singari to transfer her share a reference may be made to the provisions of S3. 16 and 20 of the Marwar Tenancy Act, 1949. S. 16 lays down that Khatedar may transfer his holding permanently by sale or otherwise to any co-tenant or to a pen on who if he survived the tenant without nearer heirs, would inherit his right It may also be observed that the Marwar Tenancy Act recognises only three types of tenants, Khatedar, Ghair Khatedar, and sub-tenants. A tenant was allowed restricted right of sub-letting. Every transfer other than a sub-lease made by a tenant in contravention of the provisions of this Act was declared to be void by sec. 20 of the Act. Every sub-lease made by a tenant in contravention of the provisions of the Act other than a sub-lease which was void under the foregoing provision was to be voidable at the opinion of the land-lord. It would thus appear that Smt. Singari could not transfer his interest in the holding by sale in favour of Mishri Mal who was neither a co-tenant nor related to her and hence the aliena-tion was clearly void. Void agreements are not enforceable at law. The learned counsel for the appellant has referred to sec. 2 i 1 of the Marwar Land Revenue Act which was also enforced simultaneously with the Marwar Tenancy Act. In the first place it is doubtful if the Marwar Land Revenue Act can regulate the rights and liabilities of the tenants. The preamble to the Marwar Tenancy Act says that whereas it is expedient to consolidate and amend the law relating to tenancy and other matters connected therewith in Marwar, the same be enacted as the Marwar Tenancy Act. Hence all questions relating to tenancies, the rights and liabilities of tenants, have to be determined with reference to the provisions contained in this Act. The Marwar Land Revenue Act had for its object only the consolidation and amendment of the law relating to Land Revenue and the constitution, powers and jurisdiction of revenue courts and officers. Never-the-less Chapter XI headed as Khalsa villages relates to grant of Bapi Patta to person accepting the asses meat of survey number under sec. 204 or the person to whom the right to hold unoccupied land is granted under sec. 206 was to be given a Bapi Patta and was to execute an acceptance in the prescribed form. All persons who were holding Bapi Patta at the commencement of the Act were also to be deemed to the Bapidars within the meaning of this Act. The rights of a Bapidar in a survey number were declared to be heritable in the same manner as the right of a Khatedar under the Marwar Tenancy Act. It is not clear as to whether the rights of a Bapidar in respect of unoccupied land granted under sec. 208 were to be heritable or not. As regards the right of transfer sec. 211 has to be examined carefully for as it stands it comprises of a number of incongruities. It runs as below - "221. (1) A Bapidar may transfer his rights permanently. (2) A Bapidar may transfer his right by lease subject to the limitations laid down in the Marwar Tenancy Act for sub-letting of his holding by a Khatedar. (3) A Bapidar shall not be entitled to temporarily transfer his land except by way of lease in the manner laid down in this Act. " The learned counsel for the appellant relies on sub-sec (1) which says that a Bapidar may transfer his rights permanently. To our mind this is rather vague. It is not stated therein as to whether this transfer will be by sale or lease or will or gift. It is significate to compare the provisions of sec. 16 of the Marwar Tenancy Act, which lays down the Khatedar's rights to transfer his holding. The word by sale or otherwise have been used therein but stand omitted from this sub-section. What is still more important is the fact that the subsequent provisions of this section run counter to it. Sub-sec. 2 lays down that as far as a transfer by lease is concerned it shall be subject to the limitations laid down in the Marwar Tenancy Act for sub letting of his holding by a Khatedar. Sub-sec. 3 lays down that a Bapidar shall not be entitled to temporarily transfer his land except by way of lease in the manner laid down in this Act, provided that the temporary alienations made before the commencement of this Act were not to be affected by this provision. If the framers of the Act intended to restrict even the right of sub-letting and temporary transfers and to so impose restrictions as to bring the rights of Khathedars and the Bapidars almost on a similar pattern on the point and if a similar pattern was manifest while dealing with the heritable rights of Khatedar and a Bapidar tenant it does not stand to reason that the right of permanent transfer was intended to be something different in respect of a Bapidar tenant other than that of a Khatedar tenant. The only interpretation which can reconcile these conflicting elements will be that the same restrictions which were made applicable to transfer by Khatedars were to apply upon Bapidars as well. In view of this interpretation we agree with the learned Additional Commissioner in holding that the alientation was void and unenforceable at law. In the result we confirm the decree passed by the lower appellate court and reject the same. .;