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1961 DIGILAW 127 (RAJ)

Udailal v. Keshoram

1961-06-09

R.N.HAWA, S.L.KAKAR

body1961
This is a revision against the appellate judgement of the Commissioner, Udaipur dated 4.9.1959, in a proceeding u/s 186 of the the Rajasthan Tenancy Act before its amendment. We have heard the learned counsel for the parties and examined the record as well. The applicant preferred an application to the Asstt. Collector Udaipur for reinstatement on the disputed land because of his having been wrongfully dispossessed there form. The opposite party raised preliminary objections to this application instead of filing his reply thereto. The objections were that the application did not contain full particulars of Rules 73 and 75 of the Rules framed by the Board to enforce the provisions of the sec. 186. The learned trial court rejected these objections. The opposite party therefore went up in appeal to the learned Commissioner, who upheld the objections and on this ground alone dismissed the application of the applicant. Hence this revision. Rule 73 requires that the application u/s 186 shall contain the particulars given therein, viz. name, parentage, caste and residence of the applicant; name of the village along with name of Tehsil and District; name of Thokor Patti ; name, parentage, caste and the residence of the land-holder; name, parentage, caste etc. of the person now in possession; khasra number of the fields, area of the fields, annual rent of the holding, and the date of ejectment or dispossession. Rule 75 enables the Asstt. Commissioner to issue notice if the application is found to be in accordance with the provisions of Rule 73 or 74. Rule 74 requires that the applicant shall file along with his application as many copies of it as there are land-holders and other persons in possession to be served with notice. No particular proforma has been prescribed for the application u/s 186, although a proforma has been prescribed for the issuing of the notice to the land-holder or others, which is required to be in Form Z vide rule 78. An examination of the application preferred by the applicant would go to show that it contains almost all the particulars required by Rule 73 excepting the rent of the disputed land. Of course, it does not even cite the land holder nor has made any request to issue a notice on the land holder. An examination of the application preferred by the applicant would go to show that it contains almost all the particulars required by Rule 73 excepting the rent of the disputed land. Of course, it does not even cite the land holder nor has made any request to issue a notice on the land holder. But it is an admitted position between the parties that the land-holder in this case on the relevant date was the State of Rajasthan and not any other person. It is also quite clear from the application that it was only the opposite party who had been alleged to have taken wrongful possession of the disputed land and no other third person. Nor any damage has been claimed in this case. It is, therefore to be seriously considered whether in the circumstances the absence of the particulars of rent and the land-holder alone in the application would be so fatal as to warrant its summary rejection. The learned counsel for the opposite party has not been able to show us any law under which the summary rejection could be justified. When there is no person other than the present parties interested in the result thereof, nor any damages have been claimed by the applicant, it seems to be quite difficult to be accepted that the omission of the mentioning of these particulars would in any way prejudice or hamper the progress of the proceeding or the interest of the opposite party thereby warranting a summary rejection of the application only on this account, specially when there is no Pulsion in the Act or the Rules made thereunder that an application contravening any of the provisions of the rules would be liable to be summarily rejected. An applicant can be refu-sed to be awarded penalty if he fails to bring on record the amount of rent of the disputed holding. For the penalty u/s 186, as it stood before amendment, is to be calculated in proportion of the rent of the area from which he was so ejected or dis-possessed. So also an application may be rejected, if the person interested in the rights over the holding from which ejectment has been complained is not brought on record, nor served with a notice and heard in the matter. In case of the State Govt. however, it cannot be said that it is a person so interested. So also an application may be rejected, if the person interested in the rights over the holding from which ejectment has been complained is not brought on record, nor served with a notice and heard in the matter. In case of the State Govt. however, it cannot be said that it is a person so interested. With the abolition of all intermediaries, and which is a declared policy of land reforms in these days, the State Govt. becomes the land-holder of almost every inch of land. Persons would be fighting and litigating and dis-possession and ejectment would be taking place about almost every inch of such land. The State Govt., if it is to be impleaded as landholder in all such cases, would have to be almost always on litigation with one of its own subjects or the other. It cannot certainly be the intention of the Legislature to make the State Government in its capacity as a land-holder a party in every such proceeding and ejectment. But even if it be not so, what sec. 186 (2) laid down was only that the Astt. Collector trying the application shall give a notice to the land-holder and to the person if any, in possession of such holding or a part thereof and no more; not that it required the applicant also to cite the State Government in its capacity as land-holder as a party. Nor would it be necessary, when the State Government is the land-holder to cite in every such application that the State Government was the land-holder. The requirements of Rule 73 would be deemed to have been fulfilled in such a case even if no mention of the land-holder was made when the land-holder was the State Govt. itself. It would be only when there was a land-holder other than the State Government, who was required to be served with notice by the trial court that particulars of such a land-holder as well as other persons who have got wrongful possession of the land, either through such land-holder or without him, would be required to be stated in the application u/s. 186 as per provision of Rule 73. In the case of State Government even when it is a landholder, there will be no such necessity and it would be for the Asstt. In the case of State Government even when it is a landholder, there will be no such necessity and it would be for the Asstt. Collector himself to issue notice to the State Government also if he deemed it proper in terms of sub-sec. (2) of sec. 186. Besides, the omission of such particulars alone as have been discussed above, in any application cannot be taken to be fatal to it so as to warrant its summary dismissal. The trial court can always demand these particulars from the applicant if it thinks it necessary and can even make up the deficiency by recording the statements of such an applicant. We, therefore, find that the learned Commissioner Udaipur has acted with grave Illegality and material irregularity in exercise of his jurisdiction in accepting the appeal preferred to him and in ordering the dismissal of the application of the applicant. He has also failed to exercise the jurisdiction vestad in him. We, therefore, accept this revision, set aside the order of the learned Commissioner, and remand the case back to the trial court for proceeding with the case in accordance with the law keeping in view the observations made above.