- (1.) REVISIONS No. 191 and 216 involve common questions of law and facts and hence will be disposed of by this judgment.
(2.) PUT briefly the facts of the case are that khasra Nos. 2 to 96, 10/9, 12/103, and 6/106, total 97 khasra numbers measuring 507 bighas 4 biswas assessed Rs. 215/- of village Deeppura Ghati were recorded in the Khatedari of Jeewan Ram, Sukha, Her Narain, Deepa, Asa, Kana s/o Bhawana, Kana s/o Lachman, Onkar, Cheema, Pancha and Bhuirya, Minas, of Jaisinghpura in the settlement Record of Rights of Svt. 1992 to Svt. 2000. This entry continued till the revision of the settlement which was undertaken in Svt. 2003. In the revised Chakbandi operations as well the Khatedari rights in the land in dispute were renewed in the name of these persons and a Parcha Chakbandi has been issued by the Settlement Department in their favour which is to remain effective and operative from Svt. 2003 to Svt. 2023. It appears that during the revision of settlement a number of persons other than the recorded Khatedar applied for the entry of their names in respect of the land in dispute obviously with the consent of the recorded Khatedar. In other words a division of this Khata was sought by a number of Minas of village Jaisinghpura. But his case was not prosecuted properly and the application was rejected. We have not been able to lay our hands upon this decision of the Assistant Record Officer which is said to have been passed on 4.3.1949 for the file containing the same could not be had inspite of numberous demands. It appears however that the persons who sought partition of the Khata failed to produce fard intkhab regarding their possession and hence the case was rejected, and strangely enough without any rhyme or reason the Assistant Record Officer ordered the land to be entered as Sawai Chak. An appeal was filed against this decision before the Additional Collector which was also dismissed in default on 23.3.54. Thereof Sheo Prasad Malla Ram and others applied on 17.11.54 before the Tehsildar Baswa for allotment out of the land in dispute on the ground that it had been entered as Sawai Chak The Tehsildar issued a, notice inviting objections and on 20.12.54 the Meenas appeared before the Tehsildar and objected to the proposed allotment on the ground that the land in dispute was in their Khatedari and continuous possession since long, that they were regularly paying rents therefore, that Parcha Chakbandis had been issued in their favour and hence the land should not be allotted to anybody else. Sheo Prasad put up a counter application denying the facts set up by the Meenas on the basis that when the land had been entered as Sawai Chak no rights could be deemed to be subsisting in their favour in it. The Tehsildar reject d these objections on 25.7.55. The Meenas went up in appeal before the Collector, Jaipur who rejected the same on 28.2.6 holding that as the land bad been entered as Sawai Chak, Meenas had forfeited all their rights in the land. A second appeal was preferred before the Addl. Commissioner, Jaipur which was rejected on 9-7 56. The learned Addl. Commissioner appears to have allowed himself to be influenced by the fact that the Meenas were seeking allotment of the land in dispute and they should have therefore followed the procedure prescribed in the notification referred to by the Additional Commissioner. Revision No. 191 has been filed by the Meenas against this decision. In the meanwhile the village Patwari put up a report before the Tehsildar on 9 6 56 to the effect that the land in dispute was in the Khatedari of Meenas of Jaisinghpura till Syalu Svt 2011 and that in Unhalu Svt. 2011 the same has been entered as Sawai Chak, that persons who were in possession in Svt. 2011 are still continuing in possession and that clear orders be passed in the point. The Tehsildar invited objections from the Meenas on the ground that the land has been entered as Sawai Chak during revision settlement and hence the Meenas cannot be allowed to continue in possession. He accordingly directed issue of notice to the Meenas for ejectment under sec. 91 of the Rajasthan Land Revenue Act. This order was appealed against before the Additional Collector who held as the Meenas had cultivated the Sawai Chak land without lawful authority they were liable to be evicted therefrom. Revision No. 216 has been filed against this order of the Additional Collector Jaipur dated 19.9.56. We have heard the learned counsel for the parties and have examined the record as well. It was argued by Shri Riddh Narain before us that the appeal filed by the Meenas before the Settlement Officer against the decision of the Assistant Record Officer having been di missed in default, the matter should be treated as closed. AIR 1975 Raj. 101 has been cited in this connection-wherein it was held that an order dismissing an appeal for want of prosecution in India is a judicial order disposing of the appeal and it is a final order within the meaning of Cl. 2 of Art. 182. The proposition enunciated in this decision has hardly any applicability to the facts of the present case. It is an admitted fact that the land in dispute was recorded in the Khatedari of the Meenas in the original settlement carried out in Svt. 1991. It is also admitted that the Meenas have been in continuous possession of the land in dispute since then The complication that has arisen in the case owes its origin to the fact that a number of other Meenas applied during the revision of the settlement for having their names recorded in the Record of Rights with the consent of the recorded Khatedars. But as the case was not prosecuted properly it resulted in a failure. This failure obviously can mean nothing else but the continuance of the existing entries in the name of the recorded Khatedars This has been repeated by the Settlement Department in issuing of a fresh Parcha Chakbandi in favour of the Meenas By no stretch of imagination could there be any occasion for the Assistant Record officer to order the land as being entered Sawai Chak. In fact the learned counsel appearing for the Government and Shri Sheo Prasad have completely failed to suggest any justification for the cancellation of the Khatedari rights of the Meenas and entering the land as Sawai Chak in the Record of Rights by the Assistant Record Officer. This order was completely a nullity and without jurisdiction. It is to be remembered in this connection that the Jaipur Tenancy Act was enforced in the former State of Jaipur in 1945 and conferred on all persons who were tenants at the commencement of this Act the rights of Khatedar tenants. Sec 8 (2) of this Act lays down that a Khatedar tenant shall be entitled to receive a formal Parcha at the time of settlement or a revision thereof under the seal and signature of the Settlement Officer or Asstt. Settlement Officer. The Asstt. Record Officer who was legally bound to give effect to this provision and to make entries in the record on the basis of possession overlooked the same and directed cancellation of Khatedari rights without any jurisdiction or authority. We are constrained to observe that this order of the learned Asstt. Record Officer betrays ignorance of the mandatory provisions of law and regulations which govern his activities. All this confusion that has arisen in the case could have been avoided if the learned Asstt. Record Officer had cared to apply his mind to the facts of the case intelligently or diligently. The facts were simple and clear. The Meenas were recorded Khatedars of the land in dispute and were continuing in possession. If a division of tenancies was agreed upon it could have been given effect to. And if it was not to be given effect to then the original entries were to continue intact. Cancellation of Khatedari rights could not have been inflicted as a punishment for failure to prove the case relating to division of the holding. The order of the learned Assistant Record Officer was grossly illegal. It is indeed unfortunate that the Settlement Officer also could not look into the propriety of the order as the appeal before it was dismissed in default. The ejectment of the Meenas from the land in dispute is equally fantastic. It may be that the Settlement Department may have refused Parchas in their favour - a proposition which is not correct, for the Meenas have new been issued Parchas by the Department. The Tehsildar ought to have considered the fact that the possession of the Meenas did not originate under any wrongful act or forcible possession. That possession was perfectly lawful and valid as it was the possession of recorded Khatedari and the mere absence of Parchas would not render them as trespassers. They are entitled to continue in possession until evicted therefrom under due process of law. The manner in which and the basis on which ejectment has been ordered against the Meenas is entirely misconceived and against the legal provisions. We would therefore, allow both these revisions and direct that the Meenas who were the recorded Khatedars of the land in dispute shall continue in possession of the same, that ejectment proceedings taken out against them by the Tehsildar shall be dropped, that no question of allotment of this land in favour of Sheo Prasad etc. can validly arise in the case, that the land shall continue in the khatedari of the Meenas as recorded in the revised settlement, and that the proceeds of the attached crop of the Meenas shall be handed over to them along with the possession of the land which has been taken away from them.;