- (1.) THIS revision has been filed under sec. 10 (2) of the Rajasthan (Protection of Tenants) Ordinance, 1949, against an order of the learned A. E. O , Sikar, dated 12. 3. 54.
(2.) THE material facts of the case may, in brief, be stated as below. Jamansingh and Chhotsingh, the applicants, filed an application before the Nazim, Udaipurwati, on 23. 8. 51, with the allegation that they had been forcibly dispossessed from 40 bighas of land known as Garh-ka-puna which had ever since remained in their cultivatory possession. It was prayed that they may be re-instated on the land in question under sec. 7 of the Rajasthan (Protection of Tenants) Ordinance. On a notice being issued to the opposite party, they denied the applicant's possession over this land and alleged that it was their land known as Khet Paraowala which had ever since been in their possession ; and that the question of forcible dispossession of the applicants did not arise. THE application, after due enquiry, was dismissed by the Anti Ejectment officer on 7. 6. 52 to whom it was transferred earlier by the S. D. O. Against it a revision was filed before the Board, who, by their order dated 3. 6. 53, vacated the order given by the Ami Ejectment Officer, and directed further enquiries to be made in the matter. Mr. M. N. Banerji, the new Anti Ejectment Officer, after recording further evidence of the parties, held that the land in question was never proved to have remained in the cultivatory possession of the applicant ; and that they were not entitled to be re-instated on it. Accordingly the application was rejected. THE applicants have now come up in revision before us against this order. We have heard the learned counsel appearing for the parties and have examined the record of the case. On the request of the parties the Tehsildair, Udaipurwati, was asked to depute an experienced revenue inspector, to inspect the site in the presence of the parties and measure the filds known as Khet Paraowala and Khet Garh-ka-pana in order to determine the exact area of these to fields. The Tehsildar accordingly, reported that the area of Khet Paraowala, according to the boundary pillars and in actual possession was 37 bighas and 8 biswas equivalent to 37 bighas & 5 biswas kham and that the area under the fieles known as Garh-ka pana was 13 bighas & &bighas equivalent to 31 bighas & 2 biswas Kham. The Tehsildar also enclosed a site plan prepared by the inspector, Land Records showing boundaries of the two fields separately and also that of the disputed land known as paraowala. The main question which arises for determination in this case is whether the land in dispute was ever in possession of the applicants as tenants in their own right and whether they were wrongfully dispossessed from the holding by the opposite party. The statement of Jaman Singh himself is to the effect that this holding was jointly owned by him and other bhomias as co-sharers and that his share in it was to the extent of about 5 bighas ; and that he had been cultivating the whole of it on behalf on the other co-sharers to whom rent in kind was paid The Patta Ex. P. 1 is said to have been executed in favour of the applicants by two of the co-sharer bhomias, namely, Jai Singh and Sawai Singh on Jeth Badi 2, Svt. 1992 and the other Patta Ex. P. 2, dated Baisakh Badi 7, Svt. 1998 executed by Khem Singh and Jai Singh and Sawai Singh. Both these Pattas do not mention the fact that the applicants were admitted as their tenants on this holding. These Pattas do not also specify the area but simply contain a recital of the fact that these co-sharer bhomias would pay a certain amount for the land known as Garh-ka-pana. This is a clear pointer to the inference that the applicants were at best cultivating the lands as co-sharers on behalf of the other bhomias and stipulated to pay a proportionate share in cash to them. The land in dispute as stated by the other co-sharers is still undivided and there is no demarcation of anybody's share therein The status of the applicants is thus that of a landlord cultivating the land on their behalf and on behalf of the other co-sharers. It is a well laid principle of law that a person cannot enjoy both the status of a tenant as well as a landlord. A. I. R. 1942 Patna page 392 following a Full Bench decision 1940 Patna page 467 has laid down that a co-share in possession is not a tenant under the other co-sharers and what is payable to them is not rent. It was also observed by way of an illustration in the same Full Bench decision A. I. R. 1940 Patna, at page 469 that if A. B. & C. are co-sharers of an estate it cannot be understood how one of them who is in possession of a part of the estate can be viewed as a tenant under the other two, for the land belongs to all the three co-proprietors and not merely to the other two. Such a person cannot be viewed as occupying the status of a tenant under himself and his co-proprietors. The law does not recognise a person as a tenant of himself. The facts of the present case are on all fours with those discussed in the aforesaid rulings. In the present case, the applicants are undisputedly co-shares in a joint-holding and it does not lie with them to say that they were the tenants of the other co-sharers. If there was any stipulation to pay anything to the other co-sharers, it cannot be termed as rent. It is also significant to observe that sec. 7 of the Rajasthan (Protection of Tenants) Ordinance contemplates the re-instatement of a tenant on his holding from which he may have been unlawfully ejected or dispossessed by some one. The term holding has been defined in sec. 2 (ii) of Ordinance and means a parcel or parcels of land under one lease, sub-lease engagement or grant or, in the absence of such lease, sub-lease, engagement or grant under one tenure. The Pattas Ex. P. 1 and 2 which have been made the basis of the present proceedings clearly show that the parcel of the holding which is said to have been leased out to the applicants by the other co-sharers on different occasions and under different terms do not constitute a holding as defined above. A", observed in A. I. R. 1929 Patna, page 239, the word parcel in the definition of the word holding implies the land within a defined set of boundaries and cannot be taken as meaning an undivided share. In order to constitute a holding it is necessary that a parcel or parcels should form the subject of a separate tenancy. Further it is also clear that the amount mentioned in the aforesaid Pattas payable to the co-sharers by the applicants does not fall within the definition of rent as given in sec. 2 of Rajasthan (Protection of tenants) Ordinance. The amount mentioned in these Pattas is payable not for the holding but a particular share of the co-sharers in the undivided land. A similar view was taken in A. I. R. 1930 Calcutta, page 233, wherein it was held that where the land let to a tenant comprises an undivided share in certain land, the letting is not the letting of a holding within the meaning of the definition in Bengal Tenancy Act which is similar to the definition of a holding given in sec. 2 (ii) of the Rajasthan (Protection of Tenants) Ordinance. The above discussion, therefore, clearly establishes the fact that the applicants were not the tenants of the land from which they are said to have been ejected by the opposite party and as such could not seek protection under sec. 7 of the Ordinance. As this finding goes to the root of the case we do not find it necessary to examine the merits of the claim of the opposite party to the land in dispute. Taking this aspect of the matter into consideration, we are of the opinion that the application was rightly rejected by the trial court. In the result the revision fails and the order given by the trial court is upheld. .;