Udai Singh v. Rampal — 1956 DIGILAW 293 (RAJ)

This appeal, which raises a difficult question of law, is directed against an appellate order of the Additional Commissioner, Jaipur, dated 9th March, 1956 which set aside an order of the Collector Sawai Madhopur, dated 29.3.1955, and directed that the parcha of the land in dispute be issued to Rampal and others with the same entries recorded therein as existed in the parcha originally given to them. 2. We have heard the learned counsel appearing for the parties and have also examined the record. The material facts of the case may be briefly stated as follows :—The settlement parcha of the land covered by khasra Nos 695, 698 to 701, 706 to 708 and 544, measuring 21 bighas and 18 biswas, situated in village Palanheda, was originally given to Rampal and others and related to a period running from Suit, year 2009 to 2019. In the said parcha the land was shown as being in the hawala of Udai Singh and Rampal and others were entered as tenants of it. On an objection being raised before the settlement officer by the mother of Udai Singh minor, the parcha of the said land was given to Udai Singh who was under her guardianship and the said land was entered as his Khudkasht. The names of Rampal and others, who were alleged to have cultivated the land for a number of years, were removed from it. Aggrieved by this order Rampal and others went in appeal against it to the Additional Settlement Commissioner who after going through the matter carefully remanded the case to the Settlement Officer with the direction that after ascertaining the facts he shall come to a fresh decision in the matter. The learned Settlement Officer instead of dealing with the case himself forwarded it to the Assistant Record Officer, who on 29.10.1954 recommended to the learned Settlement Officer that the parcha of the said land be given to Udai Singh. Before this recommendation could be accepted by the learned Settlement Officer the Settlement operations which were in progress in the area came to a close. The case was, therefore, transferred to the file of the Collector Sawai Madhopur for disposal. The learned Collector after weighing the evidence adduced by the parties in support of their claims came to the conclusion that Udai Singh was entitled to the grant of a parcha in preference to Rampal and others. The case was, therefore, transferred to the file of the Collector Sawai Madhopur for disposal. The learned Collector after weighing the evidence adduced by the parties in support of their claims came to the conclusion that Udai Singh was entitled to the grant of a parcha in preference to Rampal and others. He based his decision upon sec. 157 of the Jaipur State Grants Land Tenures Act, 1947 (hereinafter referred to as the said Act) As the claim of Rampal and others was considerably prejudiced by the order of the learned Collector they preferred an appeal from it to the learned Additional Commissioner, Jaipur, who after scrutinizing the relevant provisions of the law held that the appellants who were admittedly in cultivatory possession of the said land up to the end of Svt. year 2010 were entitled to receive a parcha which took effect from Svt. year 2009, in preference to Udai Singh respondent. He, therefore, accepted the appeal and set aside the order of the learned Collector. Aggrieved by this decision Udai Singh, minor, who is under the guardianship of his mother has come up in appeal before us. 3. It was contended on behalf of the appellant that the learned Additional Commissioner had not properly construed the provisions of secs. 152, 156 and 157 which occur in Chapter X of the said Act. It was further contended that he had drawn a distinction between hawala and Khudkasht lands which was neither warranted by the provisions of the law nor was it in conformity with practice prevailing in that locality. These terms were identical as would be clear from the provisions of sec. 2 (i) of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952. It was also pointed out that the respondents were not entitled to receive a settlement parcha because they were either tenants of Khudkasht land or sub-tenants, to whom Khatedari rights had not accrued, nor was it alleged by them that they had acquired such rights by fulfilling the conditions laid down in sec,. 8 of the Jaipur Tenancy Act. They had adduced evidence in support of their claim to occupation of the land in dispute which was hopelessly discrepant on the point whether they had cultivated the land for 7 or 8 or 10 or 14 or 15 years and in what capacity. 8 of the Jaipur Tenancy Act. They had adduced evidence in support of their claim to occupation of the land in dispute which was hopelessly discrepant on the point whether they had cultivated the land for 7 or 8 or 10 or 14 or 15 years and in what capacity. This evidence could not be construed in their favour as it was manifestly unreliable and did not point to the conclusion that Khatedari rights had accrued to them in the land in dispute. 4. On behalf of the respondents reliance was placed on a Full Bench decision of the Board reported at p. 106, 1955 RLW, Harchand vs. Maji Sahiba Shiva Ram peta Pana Kalan in which it was held that sec. 157 of the said Act clearly provided that it would come into operation only for the purposes of sec. 156 which dealt with the extinction of Khudkasht right and it had no reference to the provisions of Chapter V of the said Act, which dealt with the preparation of the record of rights. It meant that the provisions of sec. 1 57 would come into play only when there was a question as to whether Khudkasht right had been extinguished or not, which question should obviously arise before a competent court. It was urged that the Khudkasht right of the appellant had been extinguished under sec. 156 (IV) of the said Act. 5. For a determination of the points in controversy between the parties it is necessary to deal with these contentions at some length. The first contention raised on behalf of the appellant turns on the construction of secs. 152,156 and 157 of the said Act. For a proper consideration of the contention it is essential to set out these provisions in great detail in order to find out whether their implication were correctly grasped by the learned Additional Commissioner or the learned Collector and whether they applied to the facts of the present case. 152,156 and 157 of the said Act. For a proper consideration of the contention it is essential to set out these provisions in great detail in order to find out whether their implication were correctly grasped by the learned Additional Commissioner or the learned Collector and whether they applied to the facts of the present case. Section 152 which defines Khudkasht runs as follows :— "(1) Khudkasht means— (a) land which was being cultivated at the commencement of this Act, or may be cultivated at any time thereafter, by an estate-holder as such either himself or by hired labour, or (b) land which was declared prior to the commencement of this Act ; or may hereafter, on application or otherwise, be declared by the Government in accordance with the provisions contained in the First Schedule of this Act, as Khudkasht of an estate-holder. (2) Khudkasht right means the special rights created by the provisions of this chapter" Sec 156 deals with the extinction of Khudkasht right by which term is meant the special rights created by the provisions of Chapter X of the said Act. It is in the following terms :— "Khudkashat right shall be extinguished— (1) When the whole of an estate is resumed, in respect of the entire area of Khudkasht comprised in such estate, or (2) Where a specific part of an estate is resumed in respect of the Khudkasht situated in such part, or (3) Where an undivided share of an estate is resumed, in respect of such area of Khudkasht as is proportionate to the share resumed, or (4) In any Khudkasht plot which, after the accrual of Khudkasht right, has been in the cultivation of one or more tenants for a continuous period of fifteen years". Section 157 which constitutes a bar to accrual of tenancy in Khudkasht of disabled person is to the following effect— "If the Khudkasht holder is a person belonging to one of the classes to which the provisions of sec. 22 of the Jaipur Tenancy Act, 1945. Section 157 which constitutes a bar to accrual of tenancy in Khudkasht of disabled person is to the following effect— "If the Khudkasht holder is a person belonging to one of the classes to which the provisions of sec. 22 of the Jaipur Tenancy Act, 1945. apply or if the property of the Khudkasht is under the superintendence of the Court of Wards, Khudkasht let to a tenant who was admitted to his tenancy by such person or while such property was under the superintendence of the Court of Wards shall, for the purposes of sec 156, be deemed not to be let " In this connection it is also necessary to invite a reference to the provisions of sec.158 of the said Act, which declares that Khudkasht right shall accrue only in land referred to in clause (b) of sub-clause (1) of sec. 158 and in no other land. As has been rightly pointed out by the Full Bench of the Board in vs. Maji Sahiba Shiva Rampeta Pana Kalan, the scope of sec. 157 is limited to the purposes of sec. 156 and the legal presumption that the land had not been let would not arise in a case in which Khuadkasht right had not accrued to the holder of the land. Section 157 of the said Act turns on the accrual of the Khudkasht right and the circumstances in which the land shall not be deemed to have been let for the purposes of sec.156. The point which falls for determination is whether Khudkusht right had accrued to the appellant in this land. In order to determine this point it is necessary to turn to the provisions of sec.152 which defines Khuakasht. It is only in land defined in clause (b) of subsection (1) of sec. 152 the question whether the Khudkasht right shall accrue or not would not arise. In this case there is no dispute between the parties on the point that land to the occupancy of which both the parties have advanced conflicting claims was not declared Khudkasht prior to the commencement of the said Act or thereafter by the Government in accordance with the provisions contained in the first schedule to the said Act as Khudkasht of an estate-holder. If the land was not declared Khudkasht in the manner indicated above the question of accrual of Khudkasht right in it would not arise. If the land was not declared Khudkasht in the manner indicated above the question of accrual of Khudkasht right in it would not arise. If the Khudkasht right did not accrue in the land neither sec. 156 nor sec. 157 on which a great deal of reliance was placed by the courts below would apply to the case. The question whether these provisions of law are properly construed by the learned Addl. Commissioner is clearly beside the point. The learned Addl. Commissioner had fallen into an error in making out that the land was not Khudkasht but was entered as being in the hawala of the estate-holder which was substantially different from Khudkasht. If the learned Additional Commissioner had carefully scrutinized the evidence adduced by the respondents on the point whether they had cultivated the land in dispute over a stretch of years or not he would have come to the conclusion that as their evidence was hopelessly discrepant no reliance could be placed upon it. It appears to us that the whole case had not been approached by the learned Additional Commissioner from a proper angle. He apparently lost sight of the provisions of sec. 158 of the said Act which had a material bearing on the point at issue between the parties. He went astray in drawing an inference from the facts brought out in the evidence adduced by the parties that as the respondent had been cultivating the land in dispute for a number of years prior to Svt.2010 they were entitled to the grant of a parcha. They would have been certainly entitled to receive the settlement parcha in preference to the appellant if they had acquired Khatedari rights in the land in dispute. On the contrary if Khatedari rights did not accrue to them they were not entitled under the law to the grant of a settlement parcha. 6. Dealing with the second contention of the appellant we may point out that in law the terms hawala and Khudkasht are identical. The land in dispute could be certainly described as Khudkasht because it fell within the ambit of clause (a) of sub-section (1) of sec. 152 of the said Act. 6. Dealing with the second contention of the appellant we may point out that in law the terms hawala and Khudkasht are identical. The land in dispute could be certainly described as Khudkasht because it fell within the ambit of clause (a) of sub-section (1) of sec. 152 of the said Act. If the land was not cultivated by the estate-holder or by his servants or by hired labourers at the commencement of the said Act it was certainly cultivated in the manner stipulated in clause (a) of the said section at any time thereafter. There is evidence on the point that Shambhu Singh had been cultivating this land himself. After his death his widow ga\e it to the respondents to cultivate it because her son, Udai Singh, who was a minor, could not look after it. Assuming that only tenancy rights in the land vested in Shambhu Singh prior to his death the land could be sublet as is indicated in sec. 22 of the Jaipur Tenancy Act by the minor. In that case the respondents would only acquire the status of sub-tenants. Looking at the matter from this angle it would be certainly idle on the part of the respondents to contend that they were entitled to the grant of a settlement parcha. This discussion would show that the second contention raised on behalf of the appellant is not devoid of substance. 7. Turning to the third Contention we may observe that under sec. 8 of the said Act the provisions of secs. 7 to 10 of the Jaipur Tenancy Act, 1945, shall apply to the admission of persons as or to the accrual in land held by them of the right of tenants of different classes mentioned in sec. 7, viz. Pattedar tenants, Khatedar tenants and Ghair Khatedar tenants. Section 8 of the Jaipur Tenancy Act indicates clearly to which category of persons who are cultivating the land as tenants Khatedari rights shall accrue. They are (a) every parson who is, at the commencement of the Jaipur Tenancy Act, a tenant of land otherwise than as a Pattedari tenant or sub-tenant ; (b) every person who is, after the commencement of the Jaipur Tenancy Act, duly admitted as a tenant otherwise than as a Pattedar tenant or a sub-tenant. They are (a) every parson who is, at the commencement of the Jaipur Tenancy Act, a tenant of land otherwise than as a Pattedari tenant or sub-tenant ; (b) every person who is, after the commencement of the Jaipur Tenancy Act, duly admitted as a tenant otherwise than as a Pattedar tenant or a sub-tenant. It was incumbent upon the respondents to adduce cogent evidence on the point that their case fell in either category. As we have indicated above the evidence adduced by them is hopelessly discrepant on the point whether they had cultivated the land over a stretch of years. There is nothing in their evidence to point to the conclusion that they were cultivating the land as tenants in 1945, in which year the Jaipur Tenancy Act came into force in the month of September. The respondents did not contend that they were entitled to receive a formal parcha at the time of settlement because they were Khatedar tenants of the land in dispute. A settlement parcha cannot be given to a tenant as there is no provision in law to that effect. Section 8 (2) of the Jaipur Tenancy Act declares that a Khatedar tenant shall be entitled to receive a formal parcha at the time of settlement. The implications of this provision of the law were not grasped by the courts below. They confined their attention entirely to the application of secs. 156 and 157 of the said Act, and, therefore, went astray in some of their conclusions which were applicable to the facts of the present case. The Rajasthan Tenancy Act which came into force on 15th October, 1955, contains a provision in sec 14 which indicates that tenants of Khudkasht land constitute a class of themselves. The only reasonable inference which we can draw from these facts is that the respondents who were either tenants of Khudkasht or sub-tenants were not entitled to the grant of a settlement parcha in the absence of any provision of law to the effect that such tenants or sub-tenants possessed a right to receive such parcha. The learned counsel for the respondent has not been able to point out any such provision of law. The learned counsel for the respondent has not been able to point out any such provision of law. The third contention has to be accepted as having sufficient weight which would over ride the considerations that prevailed with the learned Additional Commissioner in holding that the respondents were entitled to the grant of a parcha. 8. Adverting to the contentions raised on behalf of the respondents we may point out that in the light of the discussion made above it is difficult to hold that the decision of the Full Bench on which the learned counsel for the respondents had placed a great deal of reliance would apply to the facts of the present case. If no Khudkasht rights accrued in the land it is idle to contend that the provisions of either sec. 156 or 157 of the said Act would govern the case. The whole position boils down to this. The respondents who were either tenants of the Khudkasht or subtenants of the land and had not acquired Khatedari rights were not entitled to receive a settlement parcha. The decision of the learned Collector on the point appears to be correct, though the reasons which influenced him in reaching it were clearly irrelevant. We, therefore, allow this appeal, set aside the decision of the learned Additional Commissioner and direct that the settlement parcha shall be given to the appeal-lant as holder of Khudkasht land after making such entries in it as are warranted by facts pertaining to the occupation of land by the respondents who have now ceased to possess it The respondents have not substantiated their contention that under the law which obtained in Jaipur State prior to the enactment of the Rajasthan Tenancy Act they were entitled to the grant of any such parcha.