Bapna, C. J. - (1.) THIS is a petition under Art. 226 of the Constitution, and arises in the following circumstances : -
(2.) DUNGA and Hanuman petitioners instituted a suit in the court of Assistant Collector, Phulera, on 2nd July, 1951, on the allegations that they were tenants of certain fields situated at Devalia, Tehsil Phulera. The names of the Chahi fields were Chobigha (4 kachcha bighas ). Ram Tookri (6 kachcha bighas:, and Kehzrawala Khouda (7 kachcha bighas), and of the Bsrani field Bora Bhoja (80 Kham bighas ). It was alleged that they were in possession of the said fields till 30th November, 1944, but on the next day, i. e. , 1st December, 1944, they were unlawfully dispossessed by Raghunath, Ramdeo, Mangla and Sakhia. The cause of action was stated to have arisen on 1st December, 1944, and was said to be within limitation under Schedule I, Group B. item 10 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 (Act No. I of 1951 ). The plaintiffs prayed for a decree for possession over the aforesaid fields. The defendants denied the plaintiffs to be ever in possession of the fields in dispute, and raised the plea of limitation. The trial court decreed the suit. On appeal, the learned Additional Commissioner set aside the decree on a finding that the suit was barred by limitation. The same judgment was upheld on second appeal by the Board of Revenue by judgment of 10th April 1957. The petitioners preferred this petition on 7th July, 1957, and it is contended on their behalf that the view of law taken by the Board of Revenue amounts to an error apparent on the face of the record, and, therefore, the said judgment should be quashed. The finding on the question of limitation by the Additional Commissioner was that the suit was one referred to in sec. 90 (b) of the Jaipur Tenancy Act,1945, and should have been brought within 3years of the date of dispossession according to item 48 of the Second Schedule of that Act. He observed that if the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act were applicable the suit would fall under item 11 or 12 of Group B of the First Schedule of that Act, limitation wherefor was also three years from the date of trespass. On appeal, the Board of Revenue was of opinion that the suit was one to which sec. 90 (b) of the Jaipur Tenancy Act applied, and after enforcement of the Rajasthan Act No. 1 of 1951, that kind of suit would be one referred to in item 12 of Group B of the First Schedule to the said Act, and as the suit was brought more than 3 years after the period of limitation, whether the Jaipur Tenancy Act applied or the Rajasthan Act No 1 of 1951 applied, the suit was barred by limitation. Learned counsel for the petitioners contended that the suit was one to which item 10, Group B of Schedule I of the Rajasthan Act No. 1 of 1951 applied, which provided a period of 12 years from the date of trespass,and the suit was within limitation. It was next contended that there was no tenancy law in the former Jaipur State, and the suit for possession was governed by Art. 142 or 144 of the Jaipur Limitation Act, 1943 which correspond to Art. 142 and 144 of the Indian Limitation Act, which provided a period of 12 years for the institution of the suit from the date of the cause of action, and if limitation were reckoned according to that Act, the suit was also within limitation. It was further contended that if the Jaipur Tenancy Act were held applicable, the suit would come under sec. 90 (a) of the said Act,for which there is no limitation according to item 47 of the Second Schedule, Reliance was placed on a decision of this Court in Mina vs. Board of Revenue (D. B. Writ Petition No. 66 of 1956, decided on 25th October, 1957 ). In that case, the plaintiffs were purchasers of occupancy rights of the land in dispute, situated at Hamjapur, Sub-Division Behror of the former Alwar State. It was alleged that respondent No. 2 was a sub-tenant, and had surrendered his rights on 25th August, 1948 but there was litigation between the vendor and the plaintiffs with regard to mutation proceedings, and they were finally sanctioned in favour of the plaintiff-petitioner on 28th February, 1952. Thereafter a suit for possession of the disputed field was instituted on 5th April, 1952. The Board of Revenue took the view that item 12, Group B of the First Schedule of Act No. 1 of 1951, governed the case, and dismissed the suit as barred by time. It was held that item 10 was applicable to the suit, and the case was sent back for decision on the merits. The observations relied on are - "on the language of the statute we find that the Board of Revenue had no justification for saying that item No. 12 applied to the case of the petitioner. In the present case on the allegations of the petitioner in the plaint, the case is one in which he has a right to possess the disputed land and he wanted to eject a trespasser who had taken possession of the land. It clearly falls under Item No. 10. Simply because the petitioner was a tenant, it cannot be said that Item No. 10 was not applicable to him. If we look to the historical background of the enactment of these items and examine the provisions of the Jaipur State Tenancy Act, we find that the case of the petitioner fell within Item No. 47 of the Second Schedule of the Jaipur State Tenancy Act and was, therefore, governed by Item No. 10 under the Act. " That case came from Alwar, and the reference to the Jaipur State Tenancy Act was not quite necessary. As stated in the aforesaid judgment, Act No. I of 1951 provided for procedural or jurisdictional matters such as powers of court, court-fees,limitation etc. , but it did not lay down the substantive rights of the parties which would entitle them to bring there matters before the revenue authorities' and to which the procedure provided might be applicable. Item 12 was rightly held to be not applicable, as that item envisages a suit by the tenant against the landlord or any person claiming through him, on account of the tenant having been wrongly ejected. In that suit, the relief was not claimed against any landlord or person claiming through him. On the special facts of that case, item 10 was held to be applicable. The present case comes from the area within the former State of Jaipur, to which the provision of the Jaipur tenancy Act or the Jaipur State-Grants Land Tenure Act became applicable. The Jaipur Tenancy Act applied to Khalsa lands, and the provisions regarding ejectment are contained in Chapter 11. The relevant provisions are sec. 90 and 93, which are as follows : - "90. A trespasser shall, notwithstanding anything to the contrary in any of the provisions of this Act, be liable - (a) if he has taken possession of any land without lawful, authority, to ejectment on the issue of notice by the Nazim and also to pay as penalty for each year during the whole or part whereof he has been in such possession a sum 195 equal to the amount of the annual rent calculated at settlement rates together with a further sum equal to one-fourth of the rent; and (b) if he has prevented another person from occupying land duly let out to him, to ejectment on the suit of such person and also to pay damages which may extend to four times the annual rent calculated at settlement rates; Provided that in either case such trespasser shall, upon payment of the penalty or damages, as the case may be, have the right of tending, gathering or removing any ungathered crops sown. 93 (1) Any tenant ejected or prevented from obtaining possession of his holding or any part thereof, otherwise than in accordance with the provisions of the law for the time being in force may sue the person so ejecting him or keeping him out of possession - (1) for possession of the holding; (2) for compensation for wrongful ejectment; or (3) for compensation for any improvement he may have made; Provided that no decree for possession shall be passed where the plaintiff at the time of the passing of the decree is liable to ejectment in accordance with the provisions of this Act within the current year. (2) If the decree is for possession no compensation for improvement shall be awarded. (3) When a decree is given for compensation for wrongful ejectment but not for possession, the compensation awarded shall be for the whole period during which the tenant was entitled to remain in possession. (4) A tenant who has sued for possession only shall not be entitled to institute a separate suit for compensation for wrongful ejectment, or for an improvement in respect of the same cause of action. " If the land happened to be within any grant, sec. 90 and 93 became applicable with certain modifications mentioned in secs. 135 and 136 respectively of the Jaipur State Grants Land Tenures Act, 1947 (Act No. 1 of 1947 ). The Jaipur Tenancy Act was brought into force on 1st February, 1946, and the Jaipur State-Grants Land Tenures Act came into force on 25th January 1947. "trespasser" has been defined under sec. 5 of the Jaipur Tenancy Act to be any person who takes possession of unoccupied land without lawful authority or who prevents another person from occupying land duly let out to him. According to the scheme of the Jaipur Tenancy Act, if the trespasser has taken possession of unoccupied land without lawful authority, he becomes liable to ejectment on issue of notice by the Nazim under sec. 90 (a) of the Act. This is so, because the trespass would be on Government land, and the Nazim is empowered to recover possession in a summary manner by the issue of a notice. It is for this reason also that no limitation is provided in item 47 for the action to be taken by the Nazim as the trespasser is to be ejected from Government land. If the trespasser is of the type that he prevents another person occupying land duly let out to him, such person has to institute a suit under sub-sec. (b) of sec. 90. The period of limitation is 3 years from the date of trespass under item 48 Group B. It was contended that sec. 90 (b) would only be applicable when the person to whom the land is let out has never been in occupation, and wants to occupy it but is prevented from doing so by the trespasser. If this interpretation is accepted, then sec. 93 becomes applicable. Sec. 93 appears in the Act which is only applicable to Khalsa lands, and the landholder does not come in between the tenant and the Government. The suit referred to in sec. 93 would, therefore, lie against a person who has wrongfully dispossessed a tenant, and who, in ordinary parlance, would be known as trespasser. The period of limitation provided for a suit referred to in sec. 93 is also three years under item 49. In the case of lands in a State-Grant, the landholder would necessarily be the defendant by virtue of sec. 136 of the Jaipur State-Grants Land Tenures Act, which directs that in the case of suit by a tenant under sec. 93, the land-holder and every other person who has wrongfully ejected him or has taken over possession after such ejectment shall be joined as defendants in the suit. In our opinion, however sec. 93 only overlaps sec. 90 (b) in the case of Government lands to which the Jaipur Tenancy Act may be applicable. The word "another person" in item 48 is no other than the person to whom the land is duly let out, as mentioned in sec. 90 (b), as distinguished from the trespasser. Sec. 90 (a) when applied to a State-grant is modified by sec. 135 of the Jaipur Act No. 1 of 1947, and the ejectment is to be made only on the suit of the person entitled to admit a person as tenant or when the joint consent of more than one person is required to admit him as a tenant on the suit of any one or more of such persons. Sec. 90 (a) thus clearly applies when the notice is to be served by the Nazim in the case of Khalsa land or the suit is brought by the land-holder in case it forms a State-grant. It does not apply to an action by a tenant who has been dispossessed by another person. To such a case sec. 90 (b) is only applicable of perhaps sec. 93, and the two provisions can be said to overlap each other, but in either case the limitation is three years from the date of trespass. The Jaipur Tenancy Act came into force on 1st February, 1946, and the period of limitation after this Act came into force became three years whether the suit could be brought under sec. 90 (b) or 93 of the Act. These three years were to expire on 1st December, 1947. The plaintiff had enough time within which to institute the suit. Sec. 108 provided that the suits and other proceedings specified in the Second Schedule should be instituted within the (time prescribed in that Schedule for them respectively. The petitioner instituted the present suit in 1951, when the period to bring such suit under the Jaipur Tenancy Act had long expired, and he could not resurrect his cause of action when Act No. 1 of 1951 (Rajasthan Revenue Courts) Procedure and Jurisdiction Act,1951 was enacted, assuming that his case could come under item 10. We may however, mention that if the right to institute a suit were to arise under the Jaipur Tenancy Act or the Jaipur State-Grants Land Tenures Act, item 10 would apply to a suit by landholder under sec. 90 (a) of the Tenancy Act read with sec. 135 of the State-Grants Land Tenures Act. Item 11 would apply to a suit under sec. 90 (b) of the Jaipur Tenancy Act, and item 12 would apply to a suit under sec. 93 of the Jaipur Tenancy Act read with sec. 136 of the Jaipur State-Grants Land Tenures Act. The Board of Revenue in the present case was not right in holding that the present case was governed by item 12 of Act No. I of 1951 but was right in holding in the alternative that item 48 by reference to sec. 90 (b) of the Jaipur Tenancy Act applied to it. The limitation for the suit being 3 years under item 48 of Second Schedule, Jaipur Tenancy Act, and the corresponding item 11 of the First Schedule, Group B, in Act No. 1 of 1951, the suit was barred by limitation when it was brought on 2nd July 1951. The order of the Board is correct and the suit is barred by limitation.
(3.) THERE is no force in this petition, and it is dismissed. .;