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1968 DIGILAW 84 (RAJ)

Shankerlal v. Kishna

1968-06-17

G.L.MEHTA, R.D.MATHUR

body1968
This second appeal has been filed by the plaintiff-appellant against the Jidg-ment and decree of the Revenue Appellate Authority, Udaipur, dated 17-9-66 whereby he partly accepted the appeal of the defendant-respondents, set aside the judgment and decree of the trial court regarding possession of the suit land and awarded decree of rent of Rs. 59/10 only against the respondents. In brief the facts of the case are that the plaintiff appellant brought a suit in the court of the S.D.O. Vallabhnagar on 11-4-57 for arrears of rent and eviction. The averment in the plaint was that agricultural land along with a well in village Ladani Tehsil Mavli was given for cultivation to the defendant respondents. The land belonged to the appellants father Shri Modilal as Muafidar who in Smt. 1996 had sold his khatedari rights to his son Shri Shankerlal. On the death of his father, he along with Onkarlal succeeded to the muafi. The defendant-respondents who were paying rent did not pay rent for Smt. years 2013 which as per share of produce amounted to Rs. 357/8. The respondents denied the claim. The trial court after framing the issues and recording the evidence decreed the suit for possession and also of rent to the extent of Rs. 59/10. Against this judgment and decree the defendant-respondents went in appeal before the Revenue Appellate Authority, Udaipur which by its judgment dated 17-9-66 partly accepted the appeal by setting aside the order regarding possession of the suit land and upheld the decree of the trial court for Rs. 59/10. It is against this order that the plaintiff appellant has filed this appeal before us. The judgment of the lower appellate court has been assailed by the learned counsel for the appellant before us mainly on the following two points: 1. That the lower appellate court was not justified in holding that the khatedari rights of the appellant extinguished as per sec. 63(6) of the Rajasthan Tenancy Act, and 2. That the lower appellate court has erroneously held that the respondents became the khatedar tenants under sec. 19 of the Rajasthan Tenancy Act. The counsel for the respondent contended that on the death of the appellants father, the appellant became Muafidar and since the maufi stands resumed, the cause of action no more survives and further that as Government has become the landlord and hence the question of eviction does not arise. 19 of the Rajasthan Tenancy Act. The counsel for the respondent contended that on the death of the appellants father, the appellant became Muafidar and since the maufi stands resumed, the cause of action no more survives and further that as Government has become the landlord and hence the question of eviction does not arise. As for Shijari, he contended that there is no material on record to show that he was a Shijari as no partnership in the form of supply of seed, bullocks, manure or payment of land revenue or anything of the sort existed. On the other hand, the respondents had produced the receipts of rent since Smt. 1989, paid by them to the appellant, a fact which has been admitted by the appellant in his evidence. The entries in the revenue and settlement records by themselves cannot be taken as the sole proof when from the other circumstantial evidence and the rent receipts produced in the case it has been fully established that he was not a Shijari but a recorded subtenant. The learned lower appellate court was therefore justified in holding him as a sub tenant who acquired khatedari rights on coming into force A.R.T.A. We have heard the counsel for the parties and perused the record of the case. The counsel for the appellant argued in support of his contention that Muafi and Khatedari rights are two separate rights and cited 1967 RRD 110, wherein the learned Members of the Division Bench of the Board had held that Muafi and Khatedari rights are separable. Landholder cannot be his own tenant is not applicable to agricultural land in Rajasthan at all. Muafidar holding muafi may hold tenancy interest too. On resumption of Mauri, Khatedar of Khatdari rights continued unimpaired......Muafidar holding rights of Khudkasht holder or jagirdar, not extinguished on resumption. In support of the above contention he also relied on AIR 1951 SC 187, AIR 1950 Gal. 1, 1937 Madras 389, 1954 Gal. 219 and 1922 PC 94. All these rulings relate to the merger of rights and in view of the above quoted Board of Revenue decision and its direct applicability it is not necessary to go into the details of other rulings. 1, 1937 Madras 389, 1954 Gal. 219 and 1922 PC 94. All these rulings relate to the merger of rights and in view of the above quoted Board of Revenue decision and its direct applicability it is not necessary to go into the details of other rulings. The view taken by the lower appellate court that the interest of a tenant in his holding or a part thereof, as the case may be shall be extinguished when he acquires or succeeds to all rights therein of a land holder or the land holder inherits or otherwise acquires the same. Sec. 63(6) does not hold good in the present case as held by the Board in the ruling cited above. Hence Khatedari right was a separate right and it did not merge with the Muafi right. As for the second point the lower appellate court was justified in holding that the respondents were not Shijari as recorded in the settlement records. The rent receipts since St. 1989 produced by the respondents clearly indicate that they were paying rent to the appellant. No partnership of any sort has been proved in the case. The appellant has also failed to prove that the respondents were sharers in the produce being Shijaris and were contributing in any manner to the cultivation of land. In RRD 1959. P. 149 (Perbhati vs. Kishorilal) it has been held that "on the basis of evidence existing on the record the trial court was justified in holding that the finding of the first appellate court holding them to be partners in cultivation is manifestly wrong and against the evidence on record. The real nature of the contract has to be examined to ascertain the relationship of the parties and no consideration can be given to the phraseology that may be employed to camouflage the real intention of the parties. We, therefore hold that the respondents were subtenants and not Shijaris. As in our view the appellant continued to be khatedars and the respondents continued to be sub-tenants the question of eviction of sub-tenants does not arise. The point with regard to the decree of rent of Rs. 59/10 was not raised before us, hence it will remain unmodified. Accordingly, we accept the appeal to the extent that the appellants were khatedar and the respondents were sub-tenants and the question of eviction of the sub-tenants does not arise. The point with regard to the decree of rent of Rs. 59/10 was not raised before us, hence it will remain unmodified. Accordingly, we accept the appeal to the extent that the appellants were khatedar and the respondents were sub-tenants and the question of eviction of the sub-tenants does not arise. The order regarding award of decree of rent of Rs. 59/10 would stand.