MOHANTY, MEMBER–All three matters are related to the same disputed land and are between the same parties and connected with each other. They were disposed of by a common judgment dated 1.3.1982 passed by learned D.B. of the Board of Revenue and later on by the judgment dated 22.3.1999 by Honble High Court in the Civil Writ Petition No. 268/83. Therefore, all these three matters are being disposed of by a common order. A copy of this judgment shall be placed on each of the case files. (2). The brief facts of the case are that Bhora son of Ghasi, Narayan son of Kana Meena (hereinafter referred to as first party), were the cultivators of the land in dispute measuring 20 bighas 4 biswas. By a document dated 23.5.1939, they gave the land for cultivation for a period of 16 years to Bhora son of Gangaram, Laxman son of Dola, Narayan son of Manna (and their legal representatives are hereby referred as Second party). By another document dated 19.9.1946 Bhora and Narayan transferred their rights in the land in dispute to Bheru Bux whose legal representatives are the present respondents No. 1 to 11 (hereafter referred to as third party). In this document it was mentioned that Bhora, Laxman, Narayan would be the cultivators on behalf of Bheru Bux. On the basis of this document Bheru Bux got a mutation No. 1069 attested in his name on 21.1.1951. Against this mutation appeals and revisions were filed and after their disposal the mutation was finally decided on 25.7.1963. Against this mutation appeals and revisions were filed and after their disposal the mutation was finally decided on 25.7.1963. Against this mutation attested in favour of Bheru Bux, the second party filed appeal before the Additional Collector, Alwar, which was rejected by his order, dated 19.9.1966. Against this order a second appeal was filed before the Revenue Appellate Authority against Bheru Bux, who died during the pendency of the appeal and the legal representatives of Bheru Bux were not brought on record. Consequently, the appeal before the Revenue Appellate Authority abated as decided by the Revenue Appellate Authority in judgment dated 29.4.1976. Against this judgment of the Revenue Appellate Authority revision No. 72/76 was filed by the second party before the Board of Revenue. Consequently, the appeal before the Revenue Appellate Authority abated as decided by the Revenue Appellate Authority in judgment dated 29.4.1976. Against this judgment of the Revenue Appellate Authority revision No. 72/76 was filed by the second party before the Board of Revenue. After the mutation was finalized in favour of Bheru Bux in 1963, Bheru Bux filed a suit in the court of Assistant Collector, Rajgarh for ejection of second party. This suit was dismissed by trial court by his judgment dated 6.4.1976. Against this dismissal of the suit, Bheru Bux filed an appeal before the Revenue Appellate Authority, which was registered as 64/90. The second party filed a suit in the court of Munsif Rajgarh in which an issue was framed whether the plaintiffs were the khatedar tenants of the land in dispute. The Munsif court referred this issue to the Assistant Collector, Rajgarh for its finding. The Assistant Collector, Rajgarh had decided Bheru Buxs suit on 6.4.1970 in which while deciding issue No. 5, the trial court had found that the defendant i.e. second party had become, the khatedars. A copy of this document was sent to Munsif by the Assistant Collector, Rajgarh as its finding on the issue referred to him by the former. Against this order, another appeal was filed by Bheru Bux in the court of Revenue Appellate Authority, which was registered at No. 65/70. By the order dated 6.12.1978 the appellate court disposed of both the appeals and set aside the order of the trial court and decreed the suit of Bheru Bux. Two appeals No. 367/78 and 78/79 were filed by the second party before the Board of Revenue. Revision No. 72/76 and the two appeals mentioned above were decided by judgment dated 1.10.1982 by the D.B. of the Board in which both the appeals were accepted and judgment passed by Revenue Appellate Authority on 6.12.1978 was set aside and consequently, the revision petition was also found infructuous. A Civil Writ Petition bearing No. 268/83 was filed by Prabhu Dayal and others before Honble Rajasthan High Court, in which Honble High Court passed judgment dated 22.3.1999 and remanded the case back to the Board of Revenue with the direction that the same should be decided after hearing the parties. Accordingly, the appeals and the revision petitions have been taken up for hearing again. (3). Heard the learned counsels for both the sides. (4). Accordingly, the appeals and the revision petitions have been taken up for hearing again. (3). Heard the learned counsels for both the sides. (4). Learned counsel for the appellants submitted his written arguments in which it was argued that the learned Revenue Appellate Authority has erred in decreeing in suit in favour of the present respondent. It was important to note that Bhora and Narayan, the main khatedars transferred their biswedari rights to the respondents by the registered sale-deed dated 19.9.1946 (Exhibit 10) and this transaction did not amount to transfer of khatedari rights in any way. The third party did not have any cultivatory possession at the time of resumption of the biswedari rights and therefore they could not get any khatedari rights as per the section 29 of the Biswedari Abolition Act. On the contrary, the appellants were in cultivatory possession of the land as on the beginning of the Rajasthan Tenancy Act, 1955 and therefore, they were entitled to be declared as khatedars. The mutation No. 1069 did not affect the rights of the appellants in any way, because only the biswedari right of the party No. 1 was transferred to the party No. 3 and not the khatedari rights. In the context of these facts, the learned trial court had found the suit filed under section 183 of the Act as time barred because the suit was filed in 1968 whereas khatedari rights accrued to the appellants in 1955 and the time limit prescribed for suit under section 183 of the Act is 12 years. Even if the case is considered on merits, the respondents have no rights to be declared as khatedars. So appeal should be accepted. (5). Learned counsel for the respondent argued that in the judgment passed by Honble Rajasthan High Court, it has been mentioned on the page No. 7 that the suit could not have been dismissed on the point of limitation, as no limitation is provided for a suit under Section 88 of the Rajasthan Tenancy Act, 1955. The judgments passed by the trial court not only amounted to dismissal of the suit filed by the respondents for ejectment but also resulted in the extinction of the respondents tenancy rights. Hence, the matter should be decided on merits. The judgments passed by the trial court not only amounted to dismissal of the suit filed by the respondents for ejectment but also resulted in the extinction of the respondents tenancy rights. Hence, the matter should be decided on merits. It was clear in the judgment passed by the learned Revenue Appellate Authority that cultivatory rights were transferred to the present respondents i.e. party No. 3 by party No. 1 by registered-deed. The time period of the patta dated 23.5.1939 expired on 23.5.1955 and the occupancy of the appellant after this date was only theoretical and the occupancy of the present respondent was real. Therefore, the present appellants could not have got the benefit of section 15 of the Rajasthan Tenancy Act, 1955. The learned Revenue Appellate Authority has considered the present respondents entitled to get khatedari rights as per the Section 15 of the Act based on their legal possession. The issue No. 1, 2 and 5 have therefore, been decided in favour of the present respondents. (6). Learned counsel for the respondent cited 1983 RRD page 415 (1), and argued that a suit under Section 183 cannot be dismissed merely on the basis of the cultivatory possession of the trespasser. Citing RRD 1977 page 1 (2), and RRD 1974 page 489 (3), it was argued that without the consent of the biswedar the possession of the Patta holders would be considered as that of a trespasser and such persons should not be given khatedari rights as per the section 15 of the Act. After the lease period of the patta, the present appellants became trespassers and therefore, they should have been evicted as per the provisions of Section 183 of the Act. After the expiry of the time period of 16 years of the disputed patta, the present respondents would automatically become occupant tenant. So there was no irregularity or legal error in the judgment passed by the learned Revenue Appellate Authority. (7). Perused the contents of the files of the lower courts carefully and considered the arguments advanced by the learned counsels. (8). From the perusal of the judgment passed by the trial court dated 24.5.1968, it is seen that 8 issues were framed by the trial court, out of which issues No. 1, 2 and 5 are most important. Issue No. 1 related to whether Ghasi, Narayan (first party) were the morusitenant of the disputed land. (8). From the perusal of the judgment passed by the trial court dated 24.5.1968, it is seen that 8 issues were framed by the trial court, out of which issues No. 1, 2 and 5 are most important. Issue No. 1 related to whether Ghasi, Narayan (first party) were the morusitenant of the disputed land. Issue No. 2 related to whether Morusi tenancy rights of Narayan and Ghasi (first party) got transferred to the third party as per the document dated 19.9.1946. The issue No. 5 was whether third party had become khatedari tenant of the disputed land having the right to eject the trespasser. (9). The trial court gave its finding that as per the document dated 19.9.1946 (Ex-10) the first party had transferred only the biswedari rights over the disputed land because as the first party was only Biswedar and not tenant and the land was already in the cultivatory possession of the second party. The first party was not the morusi cultivators because they had already given the land in cultivation for a period of 16 years to the second party by a document dated 23.5.1939. As far as the second issue is concerned, the trial court also came to the conclusion that only biswedari rights were transferred by party No. 1 to party No. 2 by the mutation No. 1069 dated 21.1.1951. Regarding issue No. 5, the trial court gave the finding that the second party was in possession of the disputed land and therefore, after coming into being of the tenancy act of 1955 they came to acquire khatedari rights. The third party was not in the physical possession of the disputed land as morusi khatedar and therefore, they could not get tenancy rights. The mutation proceedings cannot confer khatedari rights on a person and therefore, the party No. 3 did not acquire khatedari rights at all. The mutation dated 21.1.1951 was disputed upto 1966 during which the second party had physical possession over the land. Since the second party remained in possession over the disputed land with khatedari rights from 1955 to 1967, therefore, the ejectment suit has been considered to be time barred i.e. beyond the limitation period of 12 years. (10). The mutation dated 21.1.1951 was disputed upto 1966 during which the second party had physical possession over the land. Since the second party remained in possession over the disputed land with khatedari rights from 1955 to 1967, therefore, the ejectment suit has been considered to be time barred i.e. beyond the limitation period of 12 years. (10). The first appellate court on the contrary has given the finding that the first party transferred the right of morusi cultivation to the third party by the registered document dated 19.9.1946 and not his biswedari right. It was made clear in the document dated 19.9.1946 that after the expiry of the patta dated 23.5.1946 in favour of party No. 2, party No. 3, would be responsible for the cultivation of the disputed land. On this basis the first appellate court has come to the finding that the original biswedari khatedar has transferred the cultivatory rights to the third party. After the expiry of the patta dated 23.5.1939 the morusi cultivatory rights of first party have been considered to have automatically transferred to the third party. It has been held by the first appellate court that the third party would be considered to have acquired the cultivatory possession by the ``legal fiction as described above w.e.f. 23.5.1955, i.e. expiry of 16 years period of the document dated 23.5.1939. On this supposition that the third party could be deemed to have acquired cultivatory possession over the land from 23.5.1955, the third party has been deemed to have acquired khatedari rights as per the section 15 of the Rajasthan Tenancy Act, 1955. The second party has been considered to be gair-morusi khatedar over the disputed land and therefore, they have been considered not to be entitled to any tenancy rights. Although the second party has been entered as the persons through which cultivation was being made in the jamabandi for Svt. 2014, 2015 and 2016, the first appellate court has interpreted that such persons could not get any tenancy right through section 15 of the Tenancy Act or Section 30 of the Biswedari Abolition Act. Similarly, although the second party has been entered as cultivators in the khasra girdawari for Svt. 2023 and 2024, the first appellate court has refused to give any validity to such entries. Similarly, although the second party has been entered as cultivators in the khasra girdawari for Svt. 2023 and 2024, the first appellate court has refused to give any validity to such entries. On the basis of these findings the issue No. 1 and 5 have been decided in favour of the third party, the present respondents. In addition since the dispute over the mutation No. 1069 dated 21.1.1951 was finally decided in 1966 therefore the cause of action has been considered to have arisen in 1967 and the suit for ejectment has been considered to be within the limitation period. (11). The crucial legal point involved in this dispute is whether the second party would be considered as trespasser over the disputed land after the expiry of the stipulated period of 16 years in the contract document dated 23.5.1939 and whether the present respondents would automatically become occupant tenants from this date 23.5.1955. In this regard learned counsel for the appellant cited RRD 1977 page 1 (supra), in which the seven member bench decision of Board of Revenue held by majority that a tenant or sub-tenant after expiry of period of lease is a trespasser and not a tenant or sub-tenant holding over. Relying on this view learned counsel for the appellants has argued that the second party could not acquire khatedari rights as they were not tenants as on the date of commencement of the Act. However, we find that this view has been overruled in the judgment passed by Honble High Court reported in 1983 WLN (UC) Page 476 (4), which it has been held that whenever the tenant continues to remain in possession of the holding after the expiry of period of his lease he remains as a tenant holding from year to year, irrespective of the fact as to whether he continues remain in possession with the consent of the lesser or without his consent, because such consent does not make any difference in his status as a tenant under the Rajasthan Tenancy Act, 1955. He would be considered to be a tenant holding over and would be entitled for conferment of khatedari rights as per the provisions of tenancy Act. He would be considered to be a tenant holding over and would be entitled for conferment of khatedari rights as per the provisions of tenancy Act. The same view has been repeated in 2002 RRD page 735 (5), saying that the tenant holding over cannot be treated as trespasser and as such he cannot be evicted under Section 183 of the Act. (12). From the above, it is quite clear that there was no mistake on the part of the trial court in holding that the present appellants were entitled to be conferred khatedari rights as per the section 15 of the Act. The present appellants clearly fulfill conditions laid down to be treated as tenants as rent was payable by them and there was a manifest contract between the first party and the second party, as per the deed dated 23.5.1939 for a period of 16 years. The citation 1983 RRD Page 415 (Para No. 15) (3), which held that the trial court had no jurisdiction in a suit under Section 183 to declare the defendants as khatedars under Section 19 of the Act, has no relevance in this case because giving a clear finding regarding the status of the appellants-defendants was unavoidable ingredient of the present dispute. Similarly, the citations 1976 Page 551 and 1979 Page 102 and 161 are also not relevant in this case keeping in view the views expressed by Honble High Court in 1983 WLN (UC) Page 476 (supra). Keeping in view the above discussion, the second party has been rightly considered as tenant under the Act by the trial court. Hence the views considering the present respondent as deemed occupant over the disputed land or having theoretical occupancy based on legal fiction, as has been held by the first trial court is clearly contrary to the principles laid down by Honble High Court in 1983 WLN (UC) Page 476 (supra). By implication, therefore, section 183 of the Act could not be applicable against the present appellant as they were not trespassers as per the principles laid down in the above judgment. (13). In view of the above, we see definite legal error and material irregularity in the judgment passed by the learned first appellate court. By implication, therefore, section 183 of the Act could not be applicable against the present appellant as they were not trespassers as per the principles laid down in the above judgment. (13). In view of the above, we see definite legal error and material irregularity in the judgment passed by the learned first appellate court. There is no need to separately deal with the question of limitation as the same has been dealt with at length in the previous judgment of the learned D.B. 1.10.1982. It would be enough to say here that as the present appellants had brought the main suit under Section 183 only, they could not be entitled to get the benefit on the plea that no limitation is prescribed for declaration of khatedar under Section 88, as they have no legal claim for conferment of khatedari rights as per the above discussions. Hence, both on account of consideration on merit as well as on consideration of limitation, we consider it appropriate to accept the appeal. (14). Consequently, the appeal is accepted and the judgment passed by learned Revenue Appellate Authority, in appeal No. 64/70 is set aside. The judgment passed by learned Revenue Appellate Authority in appeal No. 65/70 was also erroneous as this judgment relates to the finding given by the trial court on the issue referred to it by the court of munsif in the suit filed by second party. Learned Revenue Appellate Authority had no jurisdiction to hear such appeal, and hence the judgment passed in appeal No. 65/70 is also set aside. (15). Similarly, since the suit filed by Bheru Bux (as the second party) has been dismissed by this order, the mutation No. 1069 sanctioned on 21.1.1951 would be modified to given effect to this judgment and therefore, the revision petition No. 13/99 has becomes infructuous. (16). Both the appeals 60/99, 61/99 and revision petition No. 13/99 are disposed of accordingly. Pronounced in the open court.