- (1.) THIS revision petition has been directed against an appellate decision of the Additional Settlement Commissioner, Rajasthan Jodhpur, dated 14. 7. 1956 in a case relating to entries in the Record of Rights to be prepared during the settlement operations.
(2.) THE facts of the case have been detailed carefully by the learned Additional Settlement Commissioner and we may, therefore, refer to them briefly. THE proceedings commenced with an application presented by Harji Ram Arjun Ram etc. opposite-party before the Tehsildar Jagir of the former Jodhpur State on 1. 10. 1946 wherein it was stated that three fields known as Jao, Bari and Kherh in village Nokha Jodha had been in their possession since 13 or 14 years ; that the Amin had wrongly entered in the Khasra the word sal-ba-sal; that the entry was manifestly wrong and hence the same may be corrected. Shiva Singh, Jagirdar, who is the applicant before us contested this application with the plea that the fields in dispute were his Khudkasht land ; that during his minority the opposite-party cultivated them for some years but that during Svt. years 2000 to 2003 they had been in his possession and hence the claim set up by the opposite-party deserves rejection. THE Settlement Tehsildar by his decision dated 4. 7. 1948 held that the opposite-party were in possession over the land in dispute Svt. year 1990 to 1999 but that they went out of possession through 'razinama' dated 12. 8. 1944 ; that the Jagirdar remained in possession during Svt. years 2000 to 2002 and as the opposite-party did not complete 12 years possession they cannot be regarded as Khatedar tenants in the Record of Rights. To appreciate the significance of the actual length of possession we may refer to a notification published it. the Jodhpur Government Gazette dated December 7, 1946. This notification is contained in the file of the lower appellate court. After enumerating the documents which were to be prepared during the Settlement operations the notification lays down the principles approver by the Government for recording certain tenants as 'khatedars whose rights and liabilities will be defined in a tenancy law' one of the class of tenant to be included in this category comprised those tenants who were residing in the village and had been in cultivatory possession of the land for more than 12 years. It was with reference to this notification that the Settlement Tehsildar refused to record the opposite-party as Khatedar tenants. Harji Ram went up in appeal against « this decision of the Settlement Tehsildar before the Settlement Officer, Jodhpur on 4. 7. 1948. This appeal was decided on 3-10 1950. THE Settlement Officer observed that Harji Ram was in cultivating possession in Svt. 2001 also and hence the total period of his possession came to 12 years which entitled him to be entered as Khatedar tenant. He accordingly reversed the decision of the Settlement Tehsildar. A second appeal was filed against this decision before the Additional Settlement Commissioner which was decided on 26. 12. 1931. This decision was to the effect that the order of the Settlement Officer dated 3. 10. 1950 was untenable and that the land in dispute should be declared as 'sir' [land, within the meaning of sec. 6 of the Marwar Tenancy Act. A revision was filed against this decision of the Settlement Commissioner in the Board. It was decided on 7. 1. 1954 by a Bench of the Board to which one of us was a party. It was pointed out by the Board in its judgment that the Additional Commissioner bad considered the provisions of sec. 6 of the Marwar Tenancy Act, 1949 without going into the other relevant provisions of the law on the subject, THEse legal provisions were clearly set out in the decision of the Board and the case was remanded to the Additional Settlement Commissioner for deciding the second appeal afresh in the light of the observation made in the judgment of the Board. THE learned Additional Commissioner has as a result of re hearing upheld the decision of the Settlement Officer dated 3. 10. 1950 whereby the opposite-party were recorded as Khatedars. Hence this revision. We have heard the learned counsel for the parties. Most of the facts of the case are beyond the scope of any dispute. (Khasra No. S. 95, 132 and 133) belongs to the applicant : that the opposite-party had been in possession of the same as tenants during Svt. years 1990 to 1999; and that in Svt. years 0000 and 2001 the applicant without resorting to any process of law and by taking the law in his own hands forcibly dispossessed the opposite-party and obtained possession of the same. The question involved for determination in the case is as to what entry should be made in the Record of Rights during the settlement operations that were started in 1945-46. The opposite-party by virtue of the notification could be recorded as Khatedar tenants only if they had completed 12 year's possession. They were however dispossessed wrongfully after they bad completed only 10 years. The opposite-party resorted to various civil and criminal proceedings. One such proceeding related to an application presented by the opposite-party before Hasiyat court on 12. 8. 1943 complaining against the interference of the Jagirdar wherein the decision of the Assistant Superintendent Hasiyat Court was as below : - "harji Ram should cultivate the lands [known as Bari and Khera till the end of Svt. 2000 and commencing from Svt. 2001 he should pay rent according to the village custom. The rent for Svt. 2000 should be mukata according to the practice of the last 10 years. Both the parties went up in appeal before the Superintendent Court of Wards. The decision of that court was, also unpalatable to both of them and hence a further appeal was filed before the Revenue Minister of the former Jodhpur State, who by his decision dated 13. 12. 1944 held that as the land in dispute was gharu karsan Harji Ram shall be held as Ghair bapidars. It was also observed in that order that the Jagirdar may eject Harji Ram but that ejectment shall have to be obtained under due process of law. Another proceedings consisted of criminal litigation started in the court of the Extra Magistrate Nagaur during the course of which the parties appeared to have entered into a compromise on 12. 8. 44 whereby Harjiram was to remain out of possession over the land in dispute for three years and was to obtain the possession in lieu thereof a field known as kharchia. Another such proceedings was the institution of a suit for recovery of mesne profit by Harji Ram against Shiva Singh. The trial court granted a decree for Rs. 92/- only. Both the parties appealed before the Additional Commissioner Jodhpur, who allowed Shiva Singh's appeal and dismissed the suit in toto on the ground that compensation in a criminal prosecution barred the action for recovery of mesne profits. Harji Ram came up in appeal before the Board. This appeal was also heard by a Bench to which one of us was a party and the decision of the Additional Commissioner was set aside and the case was remanded for re hearing. As a result thereof the Additional Commissioner granted a decree of Rs. 520/ -. In appeal the decretal amount was reduced by the Board to Rs. 375/- only by a Bench to which both of us were parties. Shiv Singh filed a writ petition (No. 78 of 1955) under Arts. 226 and 227 of the Constitution before the Hon'ble High Court of Judi-cature for Rajasthan. This application was allowed in part and Rs. 200/- were directed to be quashed from the decree of the Board which was, however, maintained intact in respect of the residuary amount. This previous history leaves no room to doubt that Harji Ram did never voluntarily surrender the land in dispute, and that he was wrongfully dispossessed therefrom by Shiv Singh who succeeded in possession from him. The learned counsel for the applicant has argued before us that Shiva Singh was fully justified in forcibly ejecting Harji Ram from the land in dispute and that Harji Ram having not completed 12 years' possession cannot be entered as Khatedar. In this connection he has cited some decisions which we will examine separately. In AIR 1957 M. B. (Madhya Bharat) 79 it was observed by their Lordships that a lawful owner can exert necessary force to expel a trespasser and that if he enters the property peaceably he becomes owner in lawful and actual possession. The learned counsel for the applicant submits that this proposition of law enunciated in Madhya Bharat case should be deemed to govern the present case as well and thus Shiva Singh should be deemed to be justified in forcibly ejecting Harji Ram. We whould like to refer to the limitations with which this propositions was hedged in all around by their Lordships. To quote their Lordships it is as below - "clearly it cannot be maintained that when once tenancy is extinguished under sec. 82 (Qanun Royatwari Gwalior State Svt. 1974) by reason of the tenant's default in the payment of rent and landlord has acquired a right to re-enter the land, the tenancy is revived again and the landlords' right is lost the moment the tenant pays up the arrears of rent. The true position is that where a right to re-enter has arisen to an owner of the land he may enter upon it by force if necessary, if the person in occupation refuses to quit the land after his right to remain thereon has terminated. " In AIR 1955 Calcutta 601 the dispute related to grown land and one of the terms of the lease authorised Government to resume lands if they be required for a public purpose. The Deputy Commissioner ordered resumption as the land was needed for re-settlement of displaced persons. The lessee refused to vacate the land and filed writ petition before the High Court. It was observed by their Lordships that as the lease of said land had terminated the Government's right to resume the land arose according to the terms of the lease and as the same had been proved in a court of law the Government should not be restrained from taking possession of lands otherwise it would amount to "throwing protection round the trespasser and his unlawful occupation. " In 1956 Calcutta 437 also it was observed that where a right to re-enter has arisen to an owner of land be may enter upon the land by force if necessary. Where the person in possession is a trespasser he has no cause of action against the owner, merely because the entry is forcible. " The principles that can be gathered from all these decisions are that before the land-owner can forcibly eject the tenant two essential ingredients ought to exist. The first is that the tenancy ought to have come to a termination under the provisions of the law. The second is that to the land-lord's right to re-enter must have accrued either in accordance with the provisions of law or the terms of the lease itself. In the present case none of these ingredients was ever in existence. On the contrary it was made perfectly clear by the Revenue Minister in his decision, dated 13-12 1944 that Shiva Singh must resort to due process of law in case he wanted to eject Harji Ram. The learned counsel for the applicant has failed to show any Rule or notification which may have conferred an unlimited or unrestricted right upon the applicant to reject a tenant by force. As against this we have before us a Jodhpur Govt. notification dated June 26, 1948 published in the Government Gazette wherein a reference has been made to a concerted move on the part of the Jagirdars to eject their tenants who were recorded as Khatedars during attestation proceedings. It was notified to all concerned that the Settlement Department would take no notice of any ejectment which has taken place after attestation and that no arbitrary ejectment will be treated as valid. It is true that both the Marwar Tenancy Act and The Marwar Land Revenue Act were enforced in 1949, but the notification gives us a clear and deep insight in the conditions then prevailing and the intention of the sovereign authority to curb the tendency of Jagirdars to eject tenants arbitrarily. There maybe no tenancy laws in force in 1943 or 1944 but it has not been denied before us that the general civil law was in force there according to which a legal action could have been brought by Shiv Singh for recovery of possession against his tenants. Shiva Singh deliberately refused to resort to this action. On the contrary he chose to take the law into his own hands, and forcibly dispossessed Harji Ram etc. The decisions cited by the applicant's counsel can, therefore, be of no avail for the obvious reasons that neither the tenancy had come to an end nor had Shiva Singh acquired right of re entry. His possession was, therefore, clearly illegal and wrongful. Harji Ram on being so dispossessed should be deemed to have continued to remain in constructive possession over the land during Svt. years 2000 and 2001. The entries in the Record of Rights are to be made on the basis of possession. This possession has to be legalistic and juristic. The framing of the Record of Rights is a quasi judicial operation and the officers who frame it ought to be allowed a certain discretion which ought to be exercised on sound and judicious principles so that they may not be compelled to make the entries of rights is belonging to persons to whom it is notorious though do not belong nor to compel out officers to substantially support possession which is wrongful". For these reasons we are of the opinion that the wrongful dispossession of the opposite-party cannot be held as a fact disentitling them from being entered as Khatedars. There is no substance in this revision which is hereby rejected. . ;