- (1.) THIS second appeal has been tiled by the defendant against whom the respondents' application for ejectment under sec. 180 of the Rajasthan Tenancy Act has been allowed by the first appellate court (Commissioner Kota), after reversing the judgment of the Assistant Collector whereby the application had been rejected.
(2.) WE have heard the parties and have examined the record as well. The respondents based their claim for ejectment on the ground that the appellant is a sub-tenant, that one of the respondents was a minor and obtained majority on 16. 7. 56, that the other respondent is a widow, that the respondents required the land for personal cultivation and as the appellant was liable to ejectment an order for ejectment against them be passed. It is significant to observe that the grounds on which the appellant was considered liable to ejectment were not specifically laid down in the application, though from a perusal of the judgment of the trial court it appears that at the time of the arguments the counsel for the respondents pointed out that the case was covered by sec. 180 (d) of the Rajasthan Tenancy Act. The trial court examined not only the applicability of clause (d) but also all other clauses as well of sec. 180 of the Rajasthan Tenancy Act and came to the conclusion that none of the clauses was applicable to the present case. He, therefore, dismissed the application. The learned Commissioner came to a different finding on the ground that no rents were paid by the appellant to the respondents and that when Gopilal died the appellant was in possession. Evidently the learned Commissioner omitted to examine the relevant provisions of the law on the point. The line of reasoning adopted by him obviously has no relevancy to the present case. The question whether rents have been paid or not or whether the appellant was admitted by Gopilal or not has no bearing on the ejectment of the applicant which has to be determined with reference to the conditions laid down in sec. 180 of the Rajasthan Tenancy Act. We would first examine the provisions of sec. 180 (d) of the Rajasthan Tenancy Act. Obviously the following ingredients should exist before a case can be governed by this provision: - (1) The land should have been under the personal cultivation of the landholder for a continuous period of 5 years immediately preceding the agricultural year 1948-49. (2) that during or after that year it was given on lease or sub-lease for a fixed term; and (3) 'hat the sub-tenant would have been liable to return possession but for the provisions of the Rajasthan Protection of Tenants Ordinance. There are provisos appended to this section which for purposes of the present appeal need not be examined. The first requirement, therefore, is that the land should have been under the personal cultivation for a continuous period of 5 years preceding the agricultural year 1948-49. To satisfy ourselves on this point we have gone through the evidence led by the respondents. It is clear therefrom the Gopilal the last recorded Khatedar of the land in dispute died about 7 to 10 years ago and that the appellant was admitted by him in his lifetime. Shrimati Mehtab Bai has in her statement admitted that the appellant had been cultivating the land for the last 24 or 25 years. Leaving this aspect aside there is not a shred of evidence to show that the land was ever in the Khud-kasht of the land-holder as all the evidence points out that it was being cultivated by the appellant. Thus the first ingredient of this provision is lacking in the present case. In view of this finding it would be unnecessary to examine the other ingredients. As for the other provisions of sec. 180 Rajasthan Tenancy Act contained in clauses (a), (b) and (c) much need not be said. Suffice to observe that none of them is attracted to the present case. Clause (a) requires that the area held by the sub-tenant is in excess of the minimum prescribed by the State Government. Clause (b) provides that the sub-tenant is one holding from year to year under a lease granted after the commencement of this Act under sec. 45. Clause (c) lays down that the land is held under a sub-lease granted after the commencement of this Act under sec. 45 and the land-holder requires land for his personal cultivation. To conclude, therefore, we hold that the decision of the learned Commissioner is clearly untenable. We, therefore, allow this appeal, set aside the judgment and decree of the lower appellate court and restore those of the trial cour t . ;