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1970 DIGILAW 150 (RAJ)

Nanda v. Smt Birdhi

1970-07-31

B.P.SOOD

body1970
The revision petition challenges the order of the learned Collector, Jhalawar, dated 3-8-63 whereby he accepted the appeal of the opposite party Smt. Birdhi and set aside the order of the Tehsildar conferring khatedari rights on the petitioner under section 19 of the Rajasthan Tenancy Act. Briefly, the facts of this case are that the Tehsildar, Jhalrapatan, conferred khatedari rights on the petitioner Nanda u/s 19 of the Rajasthan Tenancy Act. The case was transferred to his court by the Panchayat concerned for effecting mutaion. Between the same parties the Assistant Collector, Jhalawar, had also decided a suit for ejectment under section 183 of the Rajasthan Tenancy Act filed by Smt. Birdhi. The Assistant Collector had decreed the suit on the payment of an amount of Rs. 2500 by Smt. Birdhi to the defendant Nanda It had been held by the Assistant Collector that Smt. Birdhi had borrowed this amount as a loan from Shri Nanda and on repayment of this loan Shri Nanda should deliver possession of the entire suit land. The Collectors order has been assailed on the following grounds— (1) The Collector had entirely misconstrued and mis-applied the principle of res-judicata on the basis of the decree of the court of Assistant Collector passed on 22 10 64 that decree related to suit under section 183 of the Rajasthan Tenancy Act and was passed conditionally subject to the repayment of loan of Rs. 2500 secured by the plaintiff Birdhi from the defendant Nanda. This judgment could not set as resjudicata as the issue in the instant case was the acquisition of the khatedari rights by Shri Nanda. (2) The objection of the applicant of the principle of res-judicata had not been taken in grounds of appeal before the Collector and this objection could not be taken at a later stage. (3) The Collector had set aside the Tehsildars order because he had not examined the nature of possession of the petitioner and also because the petitioner respondent Nanda had failed to produce the annual register. It was contended that the Collector should have remanded the case to the Tehsildar for ascertaining the nature and duration of possession of Nanda. (3) The Collector had set aside the Tehsildars order because he had not examined the nature of possession of the petitioner and also because the petitioner respondent Nanda had failed to produce the annual register. It was contended that the Collector should have remanded the case to the Tehsildar for ascertaining the nature and duration of possession of Nanda. The learned counsel for the petitioner argued that the proceedings before the Tehsildar were instituted on the report of the Patwari and there was no obligation on the part of Nanda to produce a copy of the annual register. He further argued that the Collector should have himself looked into the annual register in the interest of justice. As regards the applicability of principle of res-judicata, the learned counsel contended that Smt. Birdhi the non-applicant had filed a suit against Nanda the present petitioner under section 183 of the Rajasthan Tenancy Act and that a cross case was also filed by Nanda under section 188 claiming that he had been in possession for 20 years. The acquisition of khatedari rights by Nanda due to long standing possession was never an issue in these suits and decisions had been given by the Assistant Collector on this point. It was, therefore, contended that the principle of res-judicata could not apply. The learned counsel for the opposite party repelled the arguments made on behalf of the petitioner. He argued that the Tehsildar could not confer khatedari rights under section 10 of the Rajasthan Tenancy Act only if a party is recorded as subtenant in the annual register of Samvat 2012 and since the petitioner had failed to produce the annual register of Samvat 2012, khatedari rights could not be conferred on him. It was also contended that section 46 (a) and 42 of the Rajasthan Tenancy Act rule out the conferment of Khatedari on a member of a non scheduled caste or tribe in respect of land in the khatedari of a member of scheduled caste or tribe. Another argument advanced on behalf of the opposite party was that as Nandas claim for khatedari is contested, jurisdiction vested in the Assistant Collector. The learned counsel cited 1963 page 330 and 350 (Umdiram vs. Ramdev Kishanlal vs. Dala respectively) in support of his case. Another argument advanced on behalf of the opposite party was that as Nandas claim for khatedari is contested, jurisdiction vested in the Assistant Collector. The learned counsel cited 1963 page 330 and 350 (Umdiram vs. Ramdev Kishanlal vs. Dala respectively) in support of his case. It was further urged that Nanda did not file any application invoking the jurisdiction of the Tehsildar under section 19 of the Rajasthan Tenancy Act and, therefore, the order of the Tehsildar conferring khatedari on him under this section was ab-initio bad in law. In his rejoinder, the learned counsel for the petitioner submitted that the opposite party had not contested Nandas case for khatedari rights and therefore, the jurisdiction to dispose of this case vested in the Tehsildar. I have carefully considered the contentions raised on behalf of the parties and also carefully examined the record. I entirely uphold the contention of the learned counsel for the petitioner that the decision given in the case Smt. Birdhi vs. Nanda u/s.183 of the Rajasthan Tenancy Act case No. 197/477/233 decided on 22nd October, 1964 cannot operate as res-judicata in respect of the proceedings under section 19 of the Rajasthan Tenancy Act before the Tehsildar. The claim of the petitioner Nanda for conferment of khatedari rights was never an issue of this suit and there is no adjudication on this point. The Collector has, therefore, misconstrued and misapplied the principle of res judicata in instant case. The Collector also committed an error in the exercise of jurisdiction that he decided the case without looking into the relevant annual register. If this document had not been produced by Nanda,it was incumbent on the Collector, in the interest of justice, to have looked into this revenue record for arriving at a correct finding in the case. As regards the applicability of section 40 (a) and 42 of the Rajasthan Tenancy Act, the Collector has given no finding whether these sections debarred the conferment of khatedari rights on Nanda. The learned Collector has, therefore, not exercised the jurisdiction vested in him in a proper manner. The result is that this revision petition is accepted and the impugned order of the learned Collector Jhalawar is set aside. The learned Collector has, therefore, not exercised the jurisdiction vested in him in a proper manner. The result is that this revision petition is accepted and the impugned order of the learned Collector Jhalawar is set aside. The case is remanded to him with the direction that he may examine the relevant annual register and determine whether Nanda is entitled to khatedari rights in the disputed land and further that he may also after hearing the parties, determine whether the provisions of section 46 (a) and 42 of the Rajasthan Tenancy Act are a bar against the confer-rnent of khatedari rights on the petitioner. Pronounced in the open court.