VERMA, J. - (1.) THE petitioners, the legal heirs of Chhitar, are aggrieved against the order dated 18. 7. 1988 (Annex. 3) passed by the Board of Revenue by which order the judgment dated 16. 9. 1978 (Annex. 1) had been restored. THE petitioners pray that Annexure 1 and 3 be set aside.
(2.) ONE Shambhu, (now dead), who is being represented through his legal heirs respondent Nos. 4 to 10, had filed a suit for declaration and injunction before the Court of Assistance Collector Bundi in regard to Khasra Nos. 256 and 145. The suit was partly decreed by the Assistant Collector vide Annex. 1 in regard to Khasra No. 256 only. Both the parties appealed against the order of the Assistant Collector Annexure 1 before the Revenue Appellate Authority, the appeal was allowed vide Annex. 2 on 13. 3. 1981, the suit of Shambhu was dismissed in toto. The land in question is situated in village Astoli. It was alleged in the suit that the land was in cultivatory possession of Shambhu for the last many decades as a sub-tenant and, therefore, he had acquired the Khatedari rights. It is submitted that the petitioners had ejected Shambhu by force in Samvat year 2035 (1973 ). A prayer was made to declare him as Khatedar of the property in suit. The trial Court found that so far as Khasra No 256 is concerned, Shambhu the plaintiff, had been able to prove that he was sub-tenant of 4 Bighas 10 Biswas and, therefore, had acquired the right of Khatedari u/order 19 of the Rajasthan Tenancy Act. Relief in regard to other part of the suit was dismissed. It was the contention in alternative of the plaintiff deceased Shambhu that he had acquired the status of sub-tenant. It is the requirement of Sec. 19 (1) of the Tenancy Act that the sub-tenant who were recorded as sub-tenants in the Jamabandhi of Samvat year 2012 (1960) do acquire the status of Khatedari. If any such sub- tenant whose name had not been recorded as sub-tenant in the Jamabandhi of the year had a right to file an application before the Assistant Colle- ctor within two years of the commencement of the Rajasthan Tenancy Act. Admittedly, the plaintiff Shambhu had not filed any such application within two years and the present suit was filed in the year 1973 i. e. after the lapse of about 15 years. Shambhu had as a matter of fact relied on the Khasra Girdawari entries in his favour from Samvat year 2005 onwards. The relevant issues were framed in regard to po- ssession of the suit land to the effect whether Shambhu was in possession of the land as tenant and had become the Khatedar tenant or not etc. etc. It was held by the trial Court that the plaintiff Shambhu was in possession of the land bearing Khasra No. 256 measuring 4 bighas 10 biswas and, therefore, as such be declared as Khasra on this part of land only. Possession was also ordered to be restored to Shambhu. The appellate Court had observed that the suit was filed in the year 1973 on the ground that Shambhu had been dis-possessed from both parts of the land i. e. Khasra Nos. 256 and 145. Section 19 of the Rajasthan Tenancy Act provides that if the name of such person has been entered in the record of rights as a sub-tenant, then on the enforcement of the Rajasthan Tenancy Act, he has to be declared Khatedar and if no such entries are found in the Rajasthan Tenancy Act, a right has been given to such a person who files a suit within two years and get his right and declaration determined. Section 88 of the Rajasthan Tenancy Act provides that any person claiming to be a tenant or a co-tenant may sue for declaration that he is a tenant or for a declaration of his share in such a joint tenancy. Similarly a tenant of Khudkasht may sue for a declaration that he is such a tenant. A sub-tenant may also sue the person from whom he holds for declaration that he is a sub-tenant. It is the contention of the petitioner that in view of the provisions of Section 5 (41) of the RT Act and in view of the finding that the plaintiff respondent was neither paying revenue nor rent and, therefore, cannot be held to be tenant or sub-tenant, the suit of the plaintiff could not lye. Issues in regard to the payment of lagan (revenue) was held in favour of the petitioners by the trial Court, Issues in regard to actual possession of the land in question was also held in favour of the petitioners. It is stated that ony because of the reason that there were certain Khasra Girdawari showing the cultivation of the respondent Shambhu, it cannot be said that Shambhu had become tenant or sub-tenant. In any case, Khasra Girdawaris do not show the title. They have got only evidentiary value if corroborated with any other evidence. It is stated that the provisions of Sec. 88 cannot be brought to assist\ the plaintiff respondent in the present case. For the proposition that Khasra Girdawari is not record of right, and therefore, cannot be used as evidence of title. The petitioner relies on Smt. Ghewar Kanwar vs. Udai Singh & Ors. (1) Head Note `c' and Prahlad vs. Board of Revenue & Ors. (2), wherein it was observed as under: "an important question which has arisen and which has emerged for adjudi- cation by this Court is, whether the Girdawari is a `record of right'. A resume of the above sections, mentioned, and particularly, from Sec. 132 to Sec. 144 & 120, would show that nowhere Khasra Girdawari has been mentioned either in the record of rights or annual registers to be prepared. However, this Court, while considering a criminal revision in Surajmal vs. The State, 1959 RRD 173, observed that in Mala vs. Board of Revenue, D. B. Civil Writ Petition No. 185 of 1953, decided o n 1. 2. 1956, by reference to the revenue laws of the former Jaipur State, it was held that Khasra Girdawari was an annual register, and the laws lays down a presumption that the entries made therein were true. This Court then observed as under :- " (8) The Rajasthan Land Revenue Act,1956 Act No. XV of 1956 has since come into force on 1. 7. 1956, & its provisions may now be examined. (9) Section 140 says that all entries in the record of rights shall be presumed to be true until the contrary was proved. (10) Section 114 mentions the several documents which make up the record of rights, and mention may be made. (b) Khatauni, i. e. a register of all persons cultivating or otherwise holding or occupying land in the area specifying the particulars required by Sec. 121 (d), such other registers may be prescribed. (11) Sec. 132 directs that the Land & Records Officer shall maintain the record of rights and for that purpose shall annually or at such longer intervals as the Government may prescribe cause to be prepared a set or an amended set of the registers enumerated in Secs. 114 and 120, and the registers so prepared shall be called the annual registers. 12 Rule 455 (b) framed u/o. 261 of the Land Revenue Act says that the Khasra is the foundation of the record of rights, and Rr. 64 to 89 direct how it is to be prepared. The form prescribed and the information that is required to be entered therein shows that it is a four yearly register maintained u/s. 132 r/w Sec. 114 of the Act. The entries are thus to be presumed true until there is proof to the contrary. `however, I find that there is nothing in this judgment for arriving at the finding that an entry in Khasra Girdawari is to be treated as `record of rights' under the Revenue Law. All that has been said in para 12 of Surajmal vs. The State's decision (3) is that the Khasra becomes the foundation of the `record of rights. ' The very terminology used in this para 12 clearly goes to show that it is something different from `record of rights". As already mentioned above, `record of rights', has been defined in Section 114 of the Rajasthan Land Revenue Act and the Khasra Girdawari nowhere finds place in it. In view of the above, the decision of Surajmal vs. The State's case (supra) cannot be taken as an authority for proposition that, the Khasra Girdawari is one of the documents which can be termed or treated as `record of rights' under the Revenue Law of Rajasthan.
(3.) COUNSEL for the respondents on the other hand relies on the provisions of Bundi State Land Revenue Act, 1942 which stood repealed by the Rajasthan Act. It is stated that Sec. 70 provided that the entries in record of rights shall be presumed to be true until contrary is proved and Sec. 86 provides that annual village papers shall consist of a village field-map. Khasra and Jamabandi, and such others as the Revenue Minister may from time to time prescribe. Section 19 of the RT Act as discussed above is reproduced as under:- `19 Conferment of rights on certain tenants of Khudkasht and sub- tenants- (1) Every person who, at the commencement of this Act- (a) was entered in the annual registers then current as a tenant of Khud-kasht of Sub-tenant of land other than grove land, or (b) was not so entered but was a tenant of Khudkasht or sub- tenant of land, other than grove land, shall as from the date of commencement of the Rajasthan Tenancy (Amendment) Act, 1959, hereafter in this Chapter referred to as the appointed date, become, subject to the other provisions contained in this Chapter, the Khatedar tenant of such part of the land held by him as does not exceed the minimum area prescribed by the State Government for the purpose of clause (a) of sub-sec. (1) of Sec. 180 or exceeds the maximum area from which such person is liable to ejectment under clause (d) of the said sub-section of the said Section and rights in improvements in that part of the said land shall also accrue to such person. " 2 Every tenant of Khudkasht or sub-tenant referred to in Cl. (b) of sub-sec. (1) claiming that the rights mentioned in that sub-sec. accrued to him on the appointed date in the whole or any part of his holding shall within two years of that date and on payment of a Court fee of twenty five naye paisa, apply to the Assistant Collector having jurisdiction, praying for a declaration that such rights accrued to him as aforesaid, and the provisions of sub-sec. (5) of Sec. 15 shall apply to such application and such tenant or Khudkasht of sub-tenant shall not be regarded to have become the Khatedar tenant of his holding or part, as the case may be, until he has obtained the declaration so prayed for. " I have gone through the judgment impugned including the judgments of the Revenue Appellate Authority. In the present case the following facts are not disputed. (1 ). Late Shambhu was not entered as tenant or sub-tenant. (2) Late Shambhu had not applied for being tenant or a sub-tenant u/s. 19 (b) of the Tenancy Act. It is stated that he was dispossessed by force and even then he had filed the suit after a lapse of so many years. ;