- (1.) BOTH these revisions Nos. 60 and 66 of 1957 (Bharatpur District), give rise to common questions of law and fact and hence will be disposed of by this judgment.
(2.) SHRI Prabhudas put up an application against Parshadi and Kanchand in the court of the Tehsildar Wair, Bharatpur District on 16. 9. 1956 under item 2 Group E, Schedule I of the Rajasthan Revenue Courts (Procedure and jurisdiction) Act, for settlement of dispute over ownership of trees standing in the disputed land. It was alleged in the application that Prabhudas was the tenant; that Parshadi and Kan-chan were the sub-tenants of the disputed land; that the sub-tenants had planted 14 mango trees upon the land; that according to the terms of the Wajib-ul-arz, Prabhudas was entitled to one hah ownership over these trees and the payer in the application was that an entry in the revenue record be made accordingly. This claim was contested on the ground that the land holders of the land in dispute were others and as Prabhudas was a tenant he had no rights to ownership of the trees standing on the land. As the Rajasthan Tenancy Act came into force on 15. 10. 55, the trial court decided the case with reference to sec. 80 of the Act and hence held that Prabhudas was entitled to one half ownership as his prayer was to that extent only. Both the parties filed separate appeals before the Additional Collector Bharatpur who rejected both of them. Hence both the parties have field separate revisions. We have heard the learned counsel appearing for the parties and have examined the record as well. The parties are at one in holding that Prabhudas is the Khatedar tenant of the disputed land, Parshadi and Kanchan being sub-tenants under him. It is also an admitted fact that the trees in dispute were planted by Parshadi and Kanchan It has also been admitted before us that regard being had to the provisions of sec. 206 of the Rajasthan Tenancy Act the dispute shall be decided in accordance with the provisions contained in sec. 80 of the Act. This section runs as follows: - "tenant's rights in trees existing at the commencement of this Act - Notwithstanding anything in this Act or any custom or contract to the contrary, scattered trees standing on the holding of a Khatedar tenant at the commencement of this Act shall vest in such tenant. Provided that where such trees are the property of any other person at the com-mercement of this Act such person shall be given compensation by the tenant in accordance with rules prescribed in that behalf. " Both the lower courts have apparently confined their attention to the first portion of this sec. and have over-looked the proviso appended to it This sec. lays down that notwithstanding anything in this Act or any custom or contract to the contrary scattered trees standing on the holding of a khatedar tenant at the commencement of this Act shall vest in such tenant. The proviso to this section further lays down that where such trees are the property of any other person at the commencement of this Act such person shall be given compensation by the tenant in accordance with rules prescribed in that behalf. As pointed out above the trees in dispute were admittedly planted by the sub tenants who have been regarded as co-owners of two of them in the revenue record. There is no entry, however in the revenue record as regards the residuary 12 mango trees. Before action can be taken under this section it is incumbent upon the court to determine as to whether the disputed trees are the property of any person other than the Khatedar tenant. In respect of two trees this can be answered in the affirmative on the basis of the entities in the revenue record. As regards the other trees an enquirn is necessary before coming to a finding on the point. The tenants claimed ownership on the basis of the entries in the Wajib-ul-Arz. A certified copy of the relevant entry exists on this record and there is nothing in it to regulate the question between a tenant and a subtenant as the entires relate only to a land holder and a tenant. It is a question as to whether the analogy can be ex-tented to the case of a tenant and sub-tenant or not on the basis of the custom or practice obtaining in the locality. In other words it is clear that before any action can be taken under sec. 80 it has to be determined as to whether the trees in dispute are the property of any person other than Khatedar tenant. In case the finding be that the Khatedar tenant is himself the proprietor of such trees no further question can arise under this section. But in case the finding is that such property vests not in the tenant but in the subtenant then it becomes mandatory upon the Court to determine the compensation that shall be paid by the tenant in accordance with the rules that may be prescribed in this behalf and the rights contemplated in this section shall accrue on payment of that compensation. The record as it stands is incomplete and does not provide adequate material for coming to a decision on both these points. In fact none of the lower courts approached the question from this angle as they were under the impression that as the holding belonged to a khateder tenant the trees standing on it became the property of the khatedar tenant irrespective of the fact whether at the commencement of the Act they were the property of some other person or not. 3. We may also refer to an application presented by Prabhudas in the Board for permission to amend the application so as to seek relief in respect of the full ownership over the disputed tress as against the one half claimed in the original application. As pointed out above original application was presented prior to the enforcement of the Rajasthan Tenancy Act and was based on a custom or usage alleged to have been sanctioned or recorded in the Wajibul-Arz. With the enforcement of the Rajasthan Tenancy Act the position underwent a material change and the tenants became eligible to all the rights that may accrue to them under the provisions of this Act. The enquiry which we are going to direct in the case shall, therefore, have within its scope the full extent of rights admissible to the tenant under the Act and shall not be confined to a relief claimed under previous law. The result is that we allow both these revisions, set aside the orders of the lower courts and remand the case to the courts of the Tehsildar, Weir, with the direction that it be tried and determined afresh in accordance with law in the light of the observations made above. .;