NARENDRA MOHAN KASLIWAL, J. - (1.) THE case of the Petitioner is that he was Khatedar tenant of agricultural land bearing Khasra No. 190 measuring 20 Bighas 10 Biswa and Khasra No. 191 measuring 8 Biswas Situated village Allapun Tehsil Bayana, District Bharatpur. According to the petitioner, he was in cultivatory possession of the above land as such he became Khatedar in Samvat 2012 on the coming into force of Section 15 of the Rajasthan Tenancy Act, 1955 (here in after referred to as 'the Act') The Patwari of the village made a wrong entry in Khasra Girdawari of Samvat 2015 by mentioning that half of Khasra No. 190 was of Kanchan and wrongly entered Kanchan as Khatedar of the land. The Tehsildar made an inquiry and after site inspection in Samvat 2017 made the correction by entering the name of the petitioner in place of Kanchan. The Patwari again in Samvat 2018 wrongly entered the names of Ramkhilari, Lahasaniya and Ghamandi sons of Kanchan and the said entry continued upto Samvat 2021. These person also threatened to take possession under the garb of the above wrong entries as such the petitioner filed a suit for declaration that he was Khatedar tenant of the entire land and the wrong entries should be corrected and the respondents be restrained from entering into above land. respondents
(2.) LEARNED Sub -Divisional Officer, Bayana by judgment dated November 18,1970, (Ex. 1) dismissed the suit filed by the petitioner. The petitioner filed an appeal before the Revenue Appellate Authority. The Revenue Appellate Authority held that petitioner was in cultivatory possession of the land as Gair Mauroosi Kashtkar from Samvat 2004. It also found that the wrong entry of Samvat 2015 in favour of Kanchan had been corrected in Samvat 2017 and the petitioner -plaintiff was in continuous cultivatory possession from Samvat 2004 to 2016. It was also held that the petitioner had been recorded as Gair Mauroosi tenant and as such became Khatedar in Samvat 2012 under Section 15 of the Act. The Revenue Appellate Authority as such allowed the appeal and decreed the suit filed by the petitioner vide its judgment dated October 1, 1977 (Ex. 2). The defendant -respondents filed a second appeal before the Board of Revenue. The Board of Revenue held that Khasra Giriawari Ex P. 1 showed that the plaintiff was Gair Mauroosi tenant for six years The Board held that entry in column No. 6 of the Khasra Girdawari is supposed to be carried over from the Jamabandi. It was hard to believe that Jamabandi would mention in this column the number of years for which the person recorded had been a Khatedar, Gair Khatedar or sub -tenant. It was observed that such an entry is never made. The Board further observed that in the Khasra Girdawari of Samvat 2014 again the plaintiff has been shown as Gair Mauroosi for 10 years. According to the Board, this suggested that the plaintiff prevailed upon the land records staff to record his possession in this manner. It was thus held by the Board that the Revenue Appellate Authority made two fundamental mistakes The first is that a Gair Mauroosi is not a full fledged tenant. It was difficult to accept that even if the plaintiff was recorded in the Jamabandi of Samvat 2012 as Gair Mauroosi, he would be entitled to khatedari rights under Section 15 of the Act. It was held by the Board that under Section 15 of the Act tenants of Khudkasht and subtenants have been excluded and it only covers cultivators having full tenancy rights. The Board of Revenue referred to Section 131 of the Revenue Code (1905) of Bharatpur State and held that under the above Section a tenant holding the land continuously for a period of 12 years can have a right of occupancy in such land provided he is not holding as a lessee under a lease for a term of not less than 7 years or as a sub -tenant. It was thus held that since at the time of commencement of the Rajasthan Tenancy Act, the plaintiff had not been in possession for 12 years, even if his possession was counted from Samvat 2004, it cannot be said that he was an occupant tenant so as to entitle him to Khatedari rights on the coming into force of the Act. The Board of Revenue further observed that the second mistake of the learned Revenue Appellate Authority was that he could not have declared that the plaintiff was a Khatedar under Section 15 of the Act in the absence of any Jamabandi of Samvat 2012. The plaintiff only produced Khasra Girdawaris, which were not record of rights to establish his claim. The Board, however, observed that it did seem to them that the defendants had even less title than the plaintiff it was not for them to prove their case. Apart from that, since the plaintiff himself said that the Patwari had wrongly entered the name of the father of the defendants in the Khasra Girdawari and this position continued, as such it was quite clear that the plaintiff was not in possession. In case the plaintiff felt that the defendants were trespassers he ought to have filed a suit under Section 183 and not Section 188 of the Act. The plaintiff having not asked for possession he could not, in any case have been given the relief of declaration of his title in view of the proviso to Section 34 of the Specific Relief Act, 1963. The Board of Revenue for the above reasons set aside the judgment and decree of the Revenue Appellate Authority and restored that of the trial Court by judgment (Ex 3) dated August 17, 1976. In these circumstances, this writ petition has been filed by the petitioner, Mistri Lal.
(3.) MR . Agrawal, learned Counsel for the petitioner, submitted that the judgment of the Board of Revenue suffers from errors apparent on the face of record and is liable to be quashed. It was submitted that the name of the petitioner is entered in all the revenue records including Jamabandis which were prepared in Samvat 2005, 2009, 2013 and upto Samvat 2029. All these Jamabandis, were in the records of the Sub -Divisional Officer, Bayana but all these documents were not produced by the plaintiff as it would have resulted in making the record bulky. The record of the Girdawari and rent receipts were already produced. The defendants, on the other hand, did not produce any Jamabandi or revenue record in their favour nor could show their possession at any time over the lands in question. The petitioner has filed Jamabandi Ex. 4 of Samvat 2005, Jamabandi Ex. 5 of Samvat 2009 and Jamabandi Ex. 6 of Samvat 2013, which all go to show that the name of the petitioner Mishri has been shown in Column No. 5 of tenant. It was thus submitted that the Board of Revenue committed a serious error of Jaw in holding that khasra girdawari was not to be relied upon in absence of Jamabandi and without any basis drew a wrong inference against the plaintiff that Jamabandi was not in his favour.;