- (1.) THIS review petition is directed against the order of Shri S. L. Kakar erstwhile Member of the Board of Revenue dated 1-1-67 in the case of Mohansingh (9/65/rev. /bikaner) which was heard ex-parte as non-applicant was absent despite notice.
(2.) THROUGH the aforesaid order, the learned Member rejected the revision filed by the State against the order of the R. A. A. on the ground that he was recorded as khudkasht and that u/s 13 of the Rajasthan Tenancy Act on the resumption of abolition of an estate under any law in force in the whole or any part of the State, the estate holder holding khudkasht was entitled to become a khatedar tenant thereof and acquired all the rights conferred and was subject to all the liabilities imposed on a khatedar tenant. It was observed by the learned Member that khudkasht has been defined under Sec. 5 (23) of the Rajasthan Tenancy Act as land in any part of the State cultivated personally by an estate-holder and included land recorded as khudkasht, sir, havala, niji-jot, gharkhed in the settlement records at the commencement of the Rajasthan Tenancy Act in accordance with law in force. It was further observed that khudaksht was defined practically in the same terms in the Bikaner State Tenancy Act as under that Tenancy Act and as this land was recorded as khudkasht in the settlement record, prima-facie Mohansingh became khatedar under Sec. 13 of the Act. However, the learned Member felt that there was another hurdle in his way to acquire khatedari rights and that was Sec. 15-A of the Act which says that "notwithstanding anything contained in sec. 13 or in sub-sec. (1) of sec. 15 of this Act or in any other law for the time being in force, or in any lease, patta or other document, land in the Rajasthan Canal area leased out on any terms whatsoever shall be deemed to have been let out temporarily within the meaning of the proviso to the said sub-section of the said sec. 15 of this Act and no khatedari rights shall accrue or shall be deemed ever to have accrued in any such land leased out as aforesaid," The learned Member observed that section 15a would have no application to this case as khudkasht land cannot be held to have been leased out. He held the opinion that even though Sec. 15 (A) mentioned the phrase 'notwithstanding anything contained in Sec. 13' yet its operative part applies only to cases of lease and a land holder who held the same land in his khudkasht cannot be said to have leased out the land to himself. In cases of leases a tenant and landlord cannot be the same person. The learned Member held that a landholder who held the land in his khudkhast cannot be said to lease it out to himself. It is argued by the learned Govt. Advocate that the view taken by him in a D. B. in an earlier case Gajanand Vs. Rameswarlal (RRD 1967 page 110) decided on 27-1-67 wherein it was observed that mafi and khadam rights being separable, the theory that 'landholder cannot be his own tenant' was not applicable to agricultural lands in Rajasthan. It was held therein that a mafider holding mafi may hold tenancy right and that on the resumption of Mafi, Khadam or khatedari rights continued unimpaired. It was further observed that in the case of mafidar holding rights of khadamdar, Khadamdari rights are analogous to rights of Khudkasht holder and would not be extinguished on resumption of the mafi. Distinguishing the rights of a lease holder or a khudkasht tenant, it was observed by the learned Member that the khadam rights were transferable and heritable whereas such would not be the case in an original lease. He felt that though there should normally be no quarrel that the landlord cannot be, at the same time, a tenant in the sense of a mere lease holder, yet to apply this principle in the case of Kharamdar would be absolutely unwarranted as the rights of a mafidar and kharam-dar are separate and separable rights. From this premise it is argued that the learned Member fell into an error apparent on the face of the record, in concluding that the land holder who holds the same land in his khudkasht cannot be said to have leased it out to himself. It was urged that this being the position sec. 15-A would operate as a bar against the non-petitioner. In support of his contention the learned Govt. Advocate further relies on the judgment of the Rajasthan High Court in Pooran Singh State of Rajasthan (Civil Writ petition No. 92/66 decided on 29-8-66 ). It is averred that in ignoring the effect of the aforesaid D. B. judgment as well as the judgment of High Court in Pooran Singh's case, the learned Member has fallen into an error which calls for review. I find myself unable to agree with the argument advanced by the learned Govt. Advocate that the learned Member has fallen into an error apparent on the face of the record in concluding that the landholder who holds the same land in his khudkasht cannot be deemed to have leased it out to himself. The authority of Gajanand's case relied upon by the learned counsel in his support is hardly at variance with the views expressed by Shri Kakar in the present case. In that case Gajanad had filed a suit u/s 43 of the Rajasthan Tenancy Act for the redemption of mortgage. It was stated that Rameswarlal and Sohanlal sons of Mathuralal defendants were in Gokal's line who was entered as holder of the mafi of 5 bighas 12 biswas in village Banera and that in Smt. 1956 he had mortgaged this land on behalf of himself and others with possession in favour of Laluram and Khema. It was further stated that the aforesaid Rameswarlal and Sohanlal were the sole survivors in the line of mortgagors and they had sold the mortgage land to Gajanand, It was further stated that Madanlal and Sohanlal were the descendants of Laluram Khemraj and were the present possessors of the mortgaged land, They had been asked to re-deliver the land free of charge as they had realised the mortgage money many times over. As they failed to do so Gajanand as successor in interest of Rameswar and Sohanlal sons of Mathurlal prayed that the land be got redelivered to him free of charge after redemption of mortgage. In the alternative, it was stated that the plaintiff was prepared to pay back the mortgage money, if any was found payable. The suit was decreed by the trial court whereupon Madan Lal and Sohan Lal went in appeal before the R. A. A. who reversed the order. This was followed by a second appeal by Gajanand. It was argued before the Board of Revenue by the counsel for the appellant that mafi as well as khadam rights had been mortgaged, that the lower appellate court was wrong in holding that the mafidar had no separate and separable rights of khadarn and that the rights of khadam had been merged in mafi rights. It was pointed out that the respondents Madanlal and Sohanlal had in their written statement taken the ground that all rights along with khatedari had been mortgaged and this very fact had been stated by Madanlal in his deposition. The finding of the lower court that a land holder cannot be a tenant and a landholder of the same land at the same time was contended to be unfounded. On behalf of the respondents it was urged that Rameshwar and Sohanlal had throughout admitted the plea of the appellant that the mafidar could not have khadarn rights and had mortgaged his mafi rights and further that when these came to an end on the resumption of mafis he had nothing more to do with the land and the khatedari remained with the respondents. It was argued that two parties are required for a mortgage as well as a lease as they are bilateral acts and that the mafidar could not create a tenancy in his own favour. It was found in this case that the appellant's predecessor in interest was both a mafidar and a khadamdar, namely, a khatedar. On the basis of the admission of the respondents, the learned Member Shri B. C. Mukerji found that the mafi having been resumed during the pendency of the mortgage, khadam and khatedari rights continued unimpaired. While agreeing with his colleague, Shri S. L. Kakar observed that the learned R. A. A. while applying to this case the proposition that a landlord cannot be at the same time a tenant seems to have made the mistake of identifying a lease holder with a Kharamdar or a khatedar tenant. He stated that a tenant in the ordinary parlance and as used in the Transfer of Property Act is only a leaseholder, but under the Marwar Tenancy Act or the Rajasthan Tenancy Act a Kharamdar has rights which no lease holder can claim. For instance, he observed that khadamdar rights are transferable and inheritable whereas such would not be the case in an ordinary lease. He observed that though there should be no quarrel that the landlord cannot be, at the same time, a tenant in the sense of a mere lease holder yet to apply this principle in the case of kharamdar would be absolutely unwarranted. He held that the rights of a mafidar and kharamdar are separate and separable rights and if a mafidar also holds the rights of a kharamdar, it cannot be said that the latter were also extinguished as a result of the resumption of the muafi. He observed that kharam rights would be analogous to those of the rights of a khudkasht holder or a jagirdar and that a khudhasut holder who is also a jagirdar automatically becomes a khatedar tenant under Sec. 13 of the Rajasthan Tenancy Act. Similarly, the rights of a kharamdar who is also a mafidar could not be extinguished as a result of resumption. As the tenor of the above judgment shows there is no variance between the observations made by Shri Kakar in that case and the finding given by him in the impugned order. It was observed by him in the impugned order that khudkasht land could not be held to have been leased out. Elucidating the impact of sec. 15a, it was stated by him that even though sec. 15a mentions the phrase "notwithstanding anyting contained in sec. 13", yet its operative part applies only to the cases of lease and a landholder who holds the land in his khudkasht cannot be said to have leased out the land to himself. It was observed by him in this context that a tenant and a landholder can not be the same person. In Gajanand's case too which arose from a dispute with regard to redemption of mortgage, it was held by Shri Kakar that a khudkasht holder who is also a jagirdar automatically, becomes a khatedar tenant. I thus, find no force in this argument of the learned Govt. Advocate that the view taken by Shri Kakar in Gajanand's case Tuns counter to the view taken by him in the present case. Similarly, I find no force in the argument of the learned Govt. Advocate that position has materially changed after the pronouncement of the Rajasthan High Court in Puransingh vs. State of Rajasthan. No doubt. , in view of the 17th Amendment the validity of sec. 15a cannot now be challenged on the ground of want of compensation. But the pertinent question which falls for consideration is whether the present case it attracted by sec. 15a. This section hits the lands in the Rajasthan Canal area leased out on any terms whatsoever and state that such lands shall be deemed to have been let out temporarily within the meaning of the proviso to the said subsection of sec. 15 and as Shri Kakar has so clearly enunciated a veritable distinction exists between the land held under khudkasht and the leased out. I am inclined to agree with Shri Kakar that sec. 15a would cover only lands leased out and not lands held in khudkasht. Under the circumstances, I see no force in this review petition and reject the same. . ;