- (1.) This second appeal has been filed by the defendants against the concurrent judgments of the lower courts in a case under sec. 180 of the Rajasthan Tenancy Act.
(2.) An interesting point of law is involved for determination in this appeal. The respondent Harhet who is the recorded occupancy (now Khatedar) tenant of the land in dispute applied for ejectment against Jivaram and Ghisaram on the ground that they were admitted as sub -tenants for one year only as he (Harhet) could not cultivate the land personally by reason of blindness and physical incapacity; that after one year they did not give no the land because of the Rajasthan (Protection of Tenants) Ordinance, 1949, and as the land was required for his personal cultivation, ejectment may be ordered against them. The claim was contested on the ground that it was untenable under the provision of the Rajasthan Tenancy Act. The trial court held that the sub -tenants were admitted for one year only and were liable to be ejected under clause (b) of sec 180 of the Rajasthan Tenancy Act. It was contended before the trial court that an application for acquisition of Khatedari rights under sec. 19 of the Rajasthan Tenancy Act was pending, bat this, contention was overruled on the ground that Harhet was covered by sec. 46 of the Act and hence sec. 19 would become inapplicable to the case. Ejectment was, therefore, ordered in favour of Harhet. Jiva and Ghinsa appealed against this decision before the Additional Commissioner, but met with no success. Hence this second appeal.
(3.) It is manifestly clear that the lower courts have entirely failed to appreciate properly the provisions of sec. 180(b) of the Rajasthan Tenancy Act. This section lays down some additional provisions for ejectment of Khud Kasht or Ghair Khatedar tenants. These grounds are reproduced as below - - (a) that the land held by such tenant or sub tenant is in excess of the minimum area prescribed by the State Government for the district or part of the district in which such land is situated and ejectment from the excess area is sought by the land -holder for the purpose of his personal cultivation : Provided that different limits may be prescribed for different districts or parts of a district, so, however, as to ensure a net annual income of twelve hundred rupees for such tenant or sub tenant exclusive of the cost of his labour and the labour of his family; (b) that he is a tenant or sub -tenant holding from year to year or under a lease or sub -lease granted after the commencement of this Act under sec. 45 of which the period has expired or will expire before the end of the current agricultural year; (c) that the lease or sublease granted after the commencement of this Act under sec. 45 has expired and the holder requires land for his personal cultivation; (d) that the land had been under the personal cultivation of the land holder for a continuous period of five years immediately preceding the agricultural year 1948 49 and was, during or after that year, given on lease or sub -lease for a fixed term and such lease of sub -lease would have terminated and the tenant or sub -tenant would have been liable to return possession of the land to his landholder but for the provisions of the Rajasthan (Protection of Tenants) Ordinance, 19 9 (Rajasthan Ondinance IX of 1949) unless in the meanwhile Khatedari rights have accrued to such tenant or sub -tenant under any law during the term of such lease or sub lease; Provided that a land -holder shall not be entitled to an order for ejectment under clause (d) unless fee required the land from which ejectment is sought for his personal cultivation, and unless such land is in excess of the minimum area prescribed for the purpose in clause(a) : Provided further that a land -holder holding thirty acres of irrigated or ninety acres of unirrigated land under his personal cultivation shall not also be entitled to an order for the ejectment of a tenant under clause (d), and a land -holder holding a less area shall be entitled to an order for such ejectment only from such areas as, together with the area already held by him, shall not exceed thirty acres of irrigated or ninety acres of unirrigated land. We would take up clauses (b) and (c) first. These provisions would govern those tenants or sub -tenants only who were admitted after the commencement of the Rajasthan Tenancy Act under sec. 45 for a fixed period or holding over from year to year or where the lease granted after the commencement of the Rajasthan Tenancy Act has expired and the land holder requires land for his personal cultivation. Thus where the sub -tenancy was created prior to the enforcement of the Rajasthan Tenancy Act and the subtenant had been in possession prior to this enforcement, sub -sec. (b) and (c) would rot be applicable Such sub -tenants can be ejected only if they come within sub -clauses (a) and (b) of the Act. Sub clause (a) provides for those cases where the sub -tenant holds land in excess of the minimum area prescribed by the State Government and ejectment from the excess area is fought by the land holder for his personal cultivation. Sub clause (d) provides for those cases where the land had been under the personal cultivation of the lard -holder for a continuous period of 5 years immediately preceding the agricultural year 1948 -49 and was during or after that year given on lease or sub -lease for a fixed term and the tenant or sub -tenant could not be ejected because of the provisions of the Rajasthan (Protection of Tenants) Ordinance. Thus sub -clauses (a) and (d) provide for those cases where the subtenant was in existence at the time of the enforcement of the Rajasthan Tenancy Act. Such sut -tenants have been conferred the rights of acquisition of Khatedari rights, under sec. 19 of the Act. Any land held by a sub -tenant from a person mentioned in sec. 46 is exempt from the operation of sec. 19 of the Act. But for purposes of this present appeal a reference to this provision is irrelevant A sub -tenant may not be eligible to acquire Khatedari rights by virtue of the exemption given in sec 19 of the Act, but that does not and cannot mean that his liability to ejectment would be enhanced thereby or that he would be liable to be vacated for reasons not recognised by law as valid for ejectment. The sub -tenant may not be able to acquire Khatedari rights under sec. 19 of the Act, but never the less he cannot be ejected under sec. 180(1)(a) of the Act unless it is shown that his possession is in excess of the minimum area prescribed by the State Government for the District. He can also be ejected if it is proved to be governed by sub -clause (d) of the aforesaid section. In the present case the ejectment is sought only on the ground that the sub tenant is holding from year to year and could not be ejected because of the Protection of Tenants Ordinance. As stated above sub -clause (b) and (c) require that the sub tenancy was created after commencement of the Act. In the present case the sub -tenancy was definitely of an origin much prior to the enforcement of this Act and hence the case is beyond the purview of sub -clause (b) or (c) of sec. 180(1) of the Act. We, therefore, allow this appeal, set aside the decrees and judgments of the lower courts, and direct that the application presented by Harhet before the trial court on 13.1.56 shall stand rejected. It shall, however, be open to Harhet to take such action as may be open to him in law against Jivaram and Ghinsaram.;