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2003 DIGILAW 691 (RAJ)

Tiku Ram v. B. O. R.

2003-05-06

O.P.BISHNOI, RAJESH BALIA

body2003
Honble BALIA, J.–This writ petition is directed to quash the judgment of the Sub-Divisional Officer, (North), Bikaner dated 27th Sept., 1968 (Annex. 1) decreeing the suit of respondent Hazari Mal for ejecting the petitioner from the land in question, the judgment of Revenue Appellate Authority dated 22.7.1975 (Annex. 2) dismissing the appeal against the order dated 27.9.1968, and the order of the Board of Revenue dated 26.9.1986 (Annex. 5) dismissing the second appeal filed by the present petitioner. The petitioner has also prayed for restoration of the order of Board of Revenue dated 9.7.1979 (Annex. 3) by quashing the order dated 23.7.1986 (Annex. 4) by which the order dated 9.7.1979 has been reviewed and recalled. The petitioner has also challenged the order dated 28.11.1990 (Annex. 6) rejecting his review application against the order dated 26.9.1986. (2). One Hazarimal since deceased and whose legal representatives are respondents No. 4/1 to 4/4 has filed a suit in the Revenue Court, i.e. before the Sub-Divisional Officer (North), Bikaner on 23.8.1965 alleging that he is a khatedar tenant of the land measuring 71 bighas & 16 biswas in khasra No. 25 situated in village Devasar. It was claimed that the original land holder was Megh Singh as `Bhokta and the land was cultivated by plaintiffs ancestors and had acquired khatedari rights in it. In Samwat year 2013, (Gregorian Calendar 1956-57) at the request of Tiku Ram, the present petitioner and defendant in the suit, the said land was given to him for cultivation for 5 years and thereafter the defendant requested for continuance of cultivation for one year. This process continued from year to year until filing of the suit in August 1965. The plaintiff also alleged that the land in question was needed for his personal cultivation and therefore, he demanded possession of the land from the defendant but he refused to vacate the land. Plaintiff further came to know, on enquiry, that the land in question has been entered in Tiku Rams name in Girdawari since Samwat 2013. (3). It is also to be noticed here that the plaint as originally filed on 23.8.1965 was amended vide application dated 30th Sept., 1965 by inserting paragraph 10 `Ka giving specific date on which plaintiff demanded for delivery of possession, and that request was refused by the defendant on 15.8.1965. (3). It is also to be noticed here that the plaint as originally filed on 23.8.1965 was amended vide application dated 30th Sept., 1965 by inserting paragraph 10 `Ka giving specific date on which plaintiff demanded for delivery of possession, and that request was refused by the defendant on 15.8.1965. On the aforesaid allegation a decree for possession of the land in question was sought. (4). The defendant Tiku Ram denied the plaintiffs allegations including creating a sub-lease in his favour by the plaintiff and plaintiffs claim to khatedari rights. By way of additional plea, in his written statement, he claimed that he was in possession of the land in question since Samwat 2004 (1974-48) and since then he is cultivating the land. He also claimed that since he has been paying rent to the erstwhile `Bhokta and on the resumption of Jagir rent is being paid to the State of Rajasthan and therefore, he is in rightful possession of the land in question. (5). The trial court after considering the material on record found that the plaintiff has been able to prove that he was khatedar of the land in question and the defendant has failed to prove that he was cultivating the land since Samwat Year 2004. He also found it proved that the land in question was given to defendant in Samwat 2013 by the brother of the plaintiff by way of sub-lease. (6). On the issue of limitation, it was held to be within limitation by mentioning item 68 of the IIIrd schedule, that plaintiff being a tenant in possession, his right to reject the sub-tenant and obtain possession from his is a continuous cause of action and, therefore, suit cannot be held to be barred by time. (7). On appeal, before the Revenue Appellate authority by Tiku Ram, the decree passed by trial court was affirmed. The finding about the plaintiffs khatedari interest in the land was affirmed by holding that from Samwat Year 2013 onwards, the defendant was shown as sub tenant and the name of plaintiff was shown as tenant and earlier thereto, the cultivation of plaintiff was recorded and the land holder was shown to be Meghraj the erstwhile Jagirdar. The finding about the plaintiffs khatedari interest in the land was affirmed by holding that from Samwat Year 2013 onwards, the defendant was shown as sub tenant and the name of plaintiff was shown as tenant and earlier thereto, the cultivation of plaintiff was recorded and the land holder was shown to be Meghraj the erstwhile Jagirdar. On the basis of the plaintiffs averments that the plaintiff needs land for his personal cultivation, the Revenue Appellate Authority found that it was a suit for ejectment on the ground mentioned in Sec. 180(1) (c) of the Rajasthan Tenancy Act and as the possession was demanded on 15.8.1965, as stated in the plaint, which has not been denied, the suit filed by the plaintiff on 23.8.1965 within one year of that date is within limitation. The fact of giving the land in question as sub-tenant to the defendant was also found in favour of the plaintiff. Thus, the decree passed by the S.D.M. was affirmed. (8). The order of the Revenue Appellate Authority dated 22.7.1975 was subjected to appeal before the Board of Revenue which appeal was allowed in the first instance by order dated 9.7.1979 by holding that the suit was barred by time. It was reasoned that since there is a restriction on sub-letting of land for a term exceeding 5 years under Section 45 of the Rajasthan Tenancy Act, 1955 no further extension could have been granted by plaintiff Hazarimal after expiry of 5 years. Thereafter cause of action arose for evicting the defendant and securing possession from him in Samwat year 2018 or for that matter in 1962 on expiry of five years from the date of sub-tenancy. By virtue of item 68(2)(i) of part 2 of Schedule III of the Rajasthan Tenancy Act suit filed in 1965 under Section 180 was barred by limitation by three years under Section 180(1)(c) of the Rajasthan Tenancy Act. The Board also considered that if the suit is considered to be on the ground on 180(1) (b), still because there is no contention on behalf of the plaintiff that he ever accepted the rent from Tiku Ram nor any proof in that regard that has been furnished. So also there is no assertion in the plaint that defendant Tiku Ram continued in possession with his assent after expiry of term of sub-lease so as to consider Tiku Ram as tenant. So also there is no assertion in the plaint that defendant Tiku Ram continued in possession with his assent after expiry of term of sub-lease so as to consider Tiku Ram as tenant. Hence, the suit was not considered to be one under Section 180(1) (b). In view thereof the Board did not decide any other issue and allowed the appeal and dismissed the suit of the plaintiff. (9). The order of the Board of Revenue dated 9.7.1979 was subjected to the review application which was allowed by the Board on 23/07/1986 inter alia on the ground that in coming to the decision on the question of limitation, the Board has ignored the earlier Full Bench decision of the Board in the case of Bhalla vs. Mst. Gulab Kanwar (1). As per the said decision after the expiry of the period of lease, lessee would be a trespasser and Section 183 of the Rajasthan Tenancy Act will be attracted for ejectment of trespasser for which a period of limitation of 12 years. The Board had not examined the issue from that aspect of the matter at all. Thus, the order of the Board of Revenue dated 9/07/1979 was recalled and appeal was directed to be heard afresh in accordance with the law on merit. (10). Thereafter by order dated 26.8.1996 the Board of Revenue dismissed the defendants second appeal. The question of limitation was not gone into again by the Court after the review application was allowed. On considering the entire material on record and considering the documentary evidence before trial court, the trial court had held that the land was recorded to be in cultivatory possession of plaintiff upto Samwat Year 2012 since before commencement of Rajasthan Tenancy Act. It is Samwat year 2013 for the first time, the defendant Shri Tiku Ram appears in remarks column. From Samwat 2014 onwards, his name has appeared in column No. 6 of the Girdawari. At the same time, the name of the plaintiff Hazari has been appearing as `tenant and Tiku Ram was shown only as cultivator. Against this documentary evidence, there was no documentary proof which could disprove the contention of the plaintiff or could support the case of the defendant that he has taken the land in question from the erstwhile Jagirdar in Samwat 2004. Against this documentary evidence, there was no documentary proof which could disprove the contention of the plaintiff or could support the case of the defendant that he has taken the land in question from the erstwhile Jagirdar in Samwat 2004. These finding of the courts below were accepted by the Board because there was no perversity in reaching such findings of facts by the courts below which would warrant interference in second appeal. The appeal was accordingly dismissed. (11). The review application was also dismissed against that judgment by order dated 28.11.1990. (12). This led to the filing of present writ petition challenging the orders noticed by us above. (13). Three-fold contentions have been raised by the learned counsel for the petitioner. (14). Firstly, it has been contended that Hazarimal plaintiff having not sought declaration about himself to be a khatedar tenant, he could not eject the defendant because only khatedar or land owner has right to eject the person in possession of the land in question. (15). This contention is noticed to be rejected inasmuch as there is a concurrent finding of fact reached by all the Revenue Courts that from the documentary evidence available on record, the original land holder was one Meghraj and the plaintiffs name appeared as cultivator upto Samwat Year 2012 when the Rajasthan Tenancy Act has come into force. According to Section 19 of the Rajasthan Tenancy Act, every person who at the time of commencement of the Act was holding the land as a tenant of Khudkasht or sub-tenant of the land other than Government land shall be khatedar tenant as from the date of commencement of the Act such part of the land held by him is in exceed of the minimum area prescribed by the State Government for the purpose of section 180 or exceed the maximum area from which such person is liable to ejectment under clause (d) of Section 180 (1). The plaintiff did fulfill the condition of Sec. 19 to be a khatedar tenant under Sec. 19 from the date of commencement of the Act. In fact no issue was raised that if the plaintiff was in cultivation of the land in question at the time of commencement of the Act even then he did not become khatedar tenant. The plaintiff did fulfill the condition of Sec. 19 to be a khatedar tenant under Sec. 19 from the date of commencement of the Act. In fact no issue was raised that if the plaintiff was in cultivation of the land in question at the time of commencement of the Act even then he did not become khatedar tenant. On the contrary the defendant pleaded himself to be khatedar tenant on the same ground that he was cultivating under erstwhile Jagirdar and on the resumption of Jagir he became khatedar on the commencement of the Rajasthan Tenancy Act. The plaintiff has proved facts in support of his khatedari interest in the land in question but the defendant has failed to prove his case. (16). Therefore, he cannot now turn round and say that for any other reason plaintiff was not a khatedar tenant. Moreover the petitioner was held to be a khatedar of the land in question as has been found by the three courts below on appreciation of the evidence which is not liable to be interfered within extra- ordinary jurisdiction of this Court for issuing a writ of certiorari. (17). In this connection, learned counsel for the petitioner also urged that the plaintiff has also sought a declaration of his khatedari interest in the land in question and, therefore, it was a suit for declaration of khatedari interest. It cannot be assumed that prior to filing of the suit, the plaintiff has acquired khatedari right. (18). Since this is a plea of desperation. We have noticed above the contention of the petitioner that the plaintiff has not claimed declaration of khatedari rights, he cannot be considered as khatedar and therefore, he is not entitled to bring the suit. This contention is quite opposite. Moreover, it is apparent that this contention is not borne out from the plaint. There is no such relief claimed by the plaintiff for declaring himself to be a khatedar of the land in question. On the other hand he has come with an assertion that he is a khatedar of the land in question for the reasons stated in the plaint. (19). There is no such relief claimed by the plaintiff for declaring himself to be a khatedar of the land in question. On the other hand he has come with an assertion that he is a khatedar of the land in question for the reasons stated in the plaint. (19). It was next contended by the learned counsel for the petitioner that the order dated 23.7.1986 passed by the Board of Revenue on review application suffers from patent error by which the order passed in favour of the petitioner on 9/07/1997 was recalled and the appeal was restored for a fresh decision. He contended that the Full Bench decision to which reference was made by the Board in its judgment dated 23/07/1986 has been held to be not laying down a good law by this Court and, therefore, the Board of Revenue had committed an error in allowing the review application. The order dated 23/07/1979 is liable to be restored and, therefore, the subsequent orders passed by the Board of Revenue shall be not est. (20). We are not impressed with the aforesaid submission. Firstly, the order dated 23/07/1986, by which the order dated 9/07/1979 was recalled by the Board of Revenue, was not challenged until filing of this writ petition and the petitioner allowed the Board to proceed with the final decision of the appeal without any objection. (21). Secondly, we find that the Board of Revenue in its judgment dated 9/07/1979 has otherwise committed patent error which cannot be allowed to be sustained. Firstly by holding that the plaint did not disclose that defendant Tiku Ram was allowed to continue in possession of the land in question by the consent of plaintiff Hazarimal and there being no pleading and proof about the acceptance of the rent from Tiku Ram, it was found that the suit is not under Sec. 180(1)(b) by treating the defendant as sub-tenant of plaintiff. Reading the plaint assertion in this regard clearly indicates the assertion of the plaintiff that the defendant Tiku Ram was allowed to continue in possession from year to year by the plaintiff. For ready reference the plaint averments are reproduced hereinbelow in that regards:- (22). Reading the plaint assertion in this regard clearly indicates the assertion of the plaintiff that the defendant Tiku Ram was allowed to continue in possession from year to year by the plaintiff. For ready reference the plaint averments are reproduced hereinbelow in that regards:- (22). From the aforesaid averments in plaint it is apparent that it was by consent of the plaintiff that Tiku Ram continue to remain in possession of the land for cultivating it from year to year after expiry of the initial term of sub-tenancy, as per the plaint averments. Thus, the very premise of non suiting the plaintiff vide order dt. 9.5.1979 was on clear misreading or non reading of plaint. (23). Moreover the Board of Revenue was also not right when it refused to take notice of the pleadings which specified the date for the purpose of computing limitation Section mention of Section 180 (1)(c) has not been made in the plaint. The plaintiff has clearly said in his plaint after alleging that the defendant continue in possession from year to year at his request, he was allowed to cultivate the land at his own request, it made a clear averment that the land in question is required for personal cultivation by the plaintiff and he does not have any other land for cultivation with him. He has pointed out that the defendant has other land also apart from the land in question in his possession. With these assertions, the plaintiff further asserted that he demanded the possession of the land from the defendant on 15.8.1965 which the defendant refused. The suit was filed on 23/08/1965 that is to say within less than two weeks from the date of demand and denial of possession. Apart from the aforesaid judgment dated 9.7.1979 reveals something for which we do not find any foundation in the contentions or the provisions of the Act. (24). Moreover, we find that on the premise on which the order dated 9.7.1979 was set aside and the appeal was restored was not wholly warranted. Apart from the aforesaid judgment dated 9.7.1979 reveals something for which we do not find any foundation in the contentions or the provisions of the Act. (24). Moreover, we find that on the premise on which the order dated 9.7.1979 was set aside and the appeal was restored was not wholly warranted. It is not in dispute that the Full Bench of Board in Bhalla vs. Gulab Kanwar (Supra), did held that the sub- tenant after expiry of the period of lease, if he continues in possession in violation of Section 45, he would be trespasser and the period of limitation for filing suit for eviction would be 12 years as the suit would be governed by Section 183 of the Rajasthan Tenancy Act. That was the judgment in force when order dated 9.7.1979 was passed and no High Court judgment was there taking contrary view. (25). The learned counsel for the petitioner has invited our attention to a Single Bench decision of this Court in Balveer Singh & Ors. vs. Board of Revenue & Ors (2), to contend that the decision in Bhallas case did not lay down the law correctly by holding that after expiry of sub-lease, the sub-tenant becomes a tenant by holding over and expressed opinion that minority decision of the Board of Revenue in Bhallas case was laying down the correct view. On the other hand, our attention was also invited by the learned counsel for the respondents towards a Bench decision of this Court in Smt. Kaushal & Ors. vs. Board of Revenue and Ors. (3), in which with reference to Section 45 the Court opined that if a sub-tenant continues beyond 5 years and he is called upon to vacate land, his possession becomes that of a trespasser. It was held that his possession became that of a trespasser, when the permissible limit under Section 45 of the Act was exceeded and the Khatedar tenant who had admitted him as a sub-tenant had called upon him to vacate the land in question. Apparently both the decisions had not come by the time the Board of Revenue has passed the order on Review Application. (26). It is true that both the decisions have not been referred to in the judgment on review application. Apparently both the decisions had not come by the time the Board of Revenue has passed the order on Review Application. (26). It is true that both the decisions have not been referred to in the judgment on review application. The fact remains that in the event a Single Bench decision, generally speaking without going into the minor distinctions that may be argued, is seemingly contrary to another Division Bench decision. The judgment of Single Judge loses its binding force as a precedent giving way to a larger bench decision. (27). Therefore, it cannot be said in the aforesaid situation that the order passed by the Board of Revenue on review application on 23.7.1986 suffers from such an error on the face of record which requires to be rectified by this Court at this stage so as to set at naught the subsequent orders which have come into existence with active participation of the petitioner, without demur. The true scope of the two decisions we shall discuss while considering the third contention of the learned counsel for the petitioner presently. (28). In view of the aforesaid, the second contention raised by the learned counsel for the petitioner also fails. (29). Lastly, it was contended by the learned counsel for the petitioner that in view of the Explanation to Section 180(1) (b), the petitioner can only be treated as tenant by holding over for year to year and he cannot be treated as trespasser notwithstanding he having remained in possession after the expiry of the maximum limit permissible for sub-lease under Section 45 of the Rajasthan Tenancy Act. His case is governed by item 68 of part 2 of Schedule III and the suit must be held to be barred by time having not been filed within one year from the date of expiry of the tenancy. (30). This connection also must fail. (31). Truly speaking whether the petitioner is treated as trespasser on expiry of maximum permissible limit of sub-lease under Section 45, when he continued in possession by consent of tenant, or he is considered to be a tenant by holding over after the permissible limit of sub-lease and not a trespasser, suit in either case cannot be held to be barred by time for obvious reasons. (32). (32). As per the findings recorded by the Revenue courts, the petitioner was left in possession of the land in question for cultivating the same as a sub-tenant in Samwat 2013 corresponding to calendar year 1956-57. Five years therefrom would expire in Samwat year 2018 corresponding to calendar year 1961-62. Apparently, under the Tenancy Act when the reference is made to a year with reference to cultivation of land it refers agricultural year as defined under section 5(1) which means the year commencing from 1st day of July and ending on thirtieth day of June next following. In case the defendant is considered to be a trespasser the period of limitation would obviously be 12 years as provided in the suit under Section 183 for ejecting the trespasser in terms of item 23 of part one of schedule III. The present suit was undoubtedly filed on 23.8.1965 within 12 years from 1961-62 when the maximum period of 5 years from the date of period of sub-lease under Sec. 45 of the Act expired. (33). If the petitioner is considered to be tenant by holding over in terms of Explanation to Section 180(1) (b), then the cause of action for evicting the defendant from the land in question would arise when the possession is demanded and refused by the sub-tenant. According to the plaint assertion the petitioner defendant was allowed to continue at his request from year to him on 15.8.1965 and refused by him on such demand. The suit has been filed on 23/08/1965 that is to say almost within a week after the demand was made by the plaintiff and which was refused by the defendant. The finding in this respect is in favour of the plaintiff as to the date when the demand of possession was made and such request was refused. In these circumstances, accepting the contention of the learned counsel for the petitioner, that he was not a trespasser and the suit must be considered to be an application filed under Section 68 of Part 2 of Schedule III under item (2)(ii) of clause 68 where the period of limitation prescribed is one year from the date the cause of action arises. The clause (i) applies to applications filed on grounds mentioned in clause (a) or (d) of Sec. 180(1). The clause (i) applies to applications filed on grounds mentioned in clause (a) or (d) of Sec. 180(1). According to the Board of Revenues own finding in the judgment delivered in favour of the petitioner from 9.7.1979 the application was not under clause (a) or clause (d) of Section 180. In that event either clause (a) or clause (b) of item (i) under clause 68 of part 2 of schedule III could not have been invoked. The application in that event is obviously fall within clause (ii) of item 68 where the commencement of limitation is from the date of cause of action. Apparently for ejecting the defendant sub-tenant, who has continuous possession by holding over, cause of action will arise on the date when the possession is demanded from the sub tenant and is refused. Tested on this premise, the contention of the learned counsel for the petitioner, according to the plaint / application, the possession was demanded on 15.8.1965 and when it was not delivered the period for filing application commenced from that date only. Obviously suit even if it be treated as an application, was filed within period of limitation from such date on 23.8.1965. (34). It was also contended in this regard that when plaintiff demanded possession from defendant on expiry of 5 years of lease period, the cause of action arose and application from that date having not filed within one year was barred by time. (35). This contention of learned counsel for the petitioner does not appear to be well founded. (36). According to the plaint allegation, it is clear that though the plaintiff has demanded for delivery of possession, the defendant has not refused but requested for allowing him to continue in possession and he was allowed to continue from year to year thereafter. The pleading of these facts ingrain within it that the defendant became tenant by holding over. The cause of action against the tenant by holding over thereafter arose only when possession was demanded on 15.8.1965 but was refused to be delivered by the defendant. That being the position, it cannot be said that the possession was demanded and refused in 1962. (37). For invoking clause 68(ii) of the Part II of IIIrd Schedule both condition must be fulfilled viz demand and refusal. That being the position, it cannot be said that the possession was demanded and refused in 1962. (37). For invoking clause 68(ii) of the Part II of IIIrd Schedule both condition must be fulfilled viz demand and refusal. In case on demand, the sub-tenant instead of vacating the land seeks continuance in possession and which is agreed to by the holder of land-lessor, the Explanation to Sec. 180(1)(b) comes into play to make the sub-tenant as tenant by holding over and he is not treated as trespasser. Significantly when demand is made to vacate but on such demand sub-tenant does not vacate, his continuance in possession ceased to be permissive as sub-tenant by holding over. His status becomes that of trespasser. (38). The seeming discrepancy in the provisions of Section 45 and Section 180(1)(b) needs to be clarified at this stage by noticing relevant statutory possession. (39). Sub-clause (b) of section 180(1) has been substituted w.e.f. 13.12.1962 vide Section 5 of Rajasthan Act No. 5 1968 which was published in Rajasthan gazette on 21.4.1962. Clause (b) of Section 180(1) and clause (c) of section 180(1) reads as under:- ``Sec. 180 (1) A tenant of Khudkasht or a Gair-Khatedar tenant or sub-tenant shall also be liable, on applications to ejectment on any of the following grounds, namely: (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) that he is a tenant or sub-tenant: holding from year to year: Provided that no tenant or sub-tenant holding land in the Abu area from year to year shall be liable to ejectment under this clause; Explanation : For the purpose of clause (b) a tenant or sub0tenant holding from year to year shall include a tenant or sub-tenant who remains in possession of the holding after the determination of the lease or sub-lease and the lessor or his legal representative accepts rent from the tenant or sub-tenant, or otherwise assents to his continuing in possession. (c) that the lease or sub-lease granted after the commencement of this Act under Section 45 has expired or will expire before the end of the current agricultural year and the landholder requires the land for his personal cultivation; (40). (c) that the lease or sub-lease granted after the commencement of this Act under Section 45 has expired or will expire before the end of the current agricultural year and the landholder requires the land for his personal cultivation; (40). Section 44 and 45 which constitute a scheme of sub-letting permissible under the Rajasthan Tenancy Act by the Khudkasht and khatedar read as under:- ``44. Rights to let or sub-let -- A holder of Khudkasht may let and a tenant may sub-let the whole or any part of his holding subject to such restrictions as are imposed by this Act. 45. Restrictions on letting and subletting-- (1) No holder or Khudkasht shall let and no Khatedar tenant or his mortgagee shall sub-let the whole or any part of his holding at any one time for a term exceeding five years. (3). . . . . . . . . . (4). . . . . . . . . . (41). These provisions were part of the statute from the beginning. (42). Two provisions which seemingly look incompatible, has to be construed harmoniously, which is requirement of any interpretorial exercise by the Courts, as no legislative enactment can be presumed to be without purpose or assumed to render another statutory provision to be otiose or nugatory. (43). The apparent dichotomy which appears is if a sub-tenant is to be presumed to be a tenant from year to year for indefinite period by holding over for the purpose of Section 180 (1) (b), in spite of violation of restriction placed under Section 45 against the renewal of lease, appears to make Sec. 45 redundant. This apparent conflict has appeared after sub-clause (b) in Sec. 180(1) was substituted vide Rajasthan Act No. 5 of 1962, but no such amendment was made in Section 45 so as to permit the tenant for Khudkasht to create a sub-lease for a period exceeding 5 years at that time, which also restricts further grant of lease after expiry of the first period only after a hitus of two years by envisaging that further lease not to be granted within two years after expiry of first period of lease. (44). The Transfer of Property Act provides a general law providing for transfer of property of any kind in general. (44). The Transfer of Property Act provides a general law providing for transfer of property of any kind in general. Section 6 of the Transfer of Property Act makes it clear when it says that the property of any kind may be transferred by the owner, except as otherwise provided under the Transfer of Property Act or by any other law for the time being in force. (45). Section 38 of the Rajasthan Tenancy Act, is one such other, law which provides that interest of a tenant in his holding is heritable but not transferable save as provided in the Rajasthan Tenancy Act. Thus, the tenancy rights of a holder in law, though passes on his death by succession to his heirs as per personal law applicable to him and as per Sec. 39 of the Act of 1955 his rights in holding can also devolve by testamentary succession. But such rights in holding are not generally transferable within the generality of provisions of Transfer of Property Act. Such rights are only transferable to the extent and in the manner provided under Rajasthan Tenancy Act, 1955. (46). Sec. 38 excludes the general provisions applicable to the Transfer of Property under Transfer of Property Act. Section 44 of the Rajasthan Tenancy Act permits in terms of Section 38 that a holder of Khudkasht or a land owner may let and the tenant may sublet his holding or any part thereof subject to such restrictions as are imposed by this Act. (47). Section 45 imposes restriction on the period of leasing out the rights of Khudkast or subletting the right of a tenant. The maximum period for which such rights could be created at a time cannot exceed five years under Sec. 45. Section 45 in terms is clear that no sub-tenancy can be created by a tenant at any one time for a term exceeding 5 years. Sub-section (2) of Section 45 further envisages that where a lease is granted for any term, no further sub-lease in respect of the same land can be granted without hiatus of two years between the expiry of first period of lease and the commencement of succeeding lease. Thus, continuance of lease after the expiry of the term of lease for which it has been granted in the first instance without a break is not permitted by law. Thus, continuance of lease after the expiry of the term of lease for which it has been granted in the first instance without a break is not permitted by law. Therefore, it was not permissible by invoking the principles of Transfer of Property Act to consider a tenant as a tenant by holding over on acceptance of rent by the landlord after expiry of term of lease or by consent of lessor for sub- tenants continuance over the land in question. As such creation of right is prohibited by law, it must be held to be invalid and continued possession of such tenant or sub-tenant cannot be considered to be authorised possession under the law so far as the paramount owner is concerned. As per scheme of Tenancy Act the land owner is State. Thus qua State such person continuing in possession in violation of Sec. 45 must be deemed to be in unauthorised possession and liable to be ejected as such. (48). However, remedy to a person, party to contract of lease or against a person who continues to remain in possession after term or lease or sub-lease expires are provided elsewhere. (49). Section 180 of the Rajasthan Tenancy Act provides specific remedy for ejectment of tenant of Khudkasht or a Gair Khatedar tenant or sub-tenant. Sub-section (1) provides that the tenant of Khudkast or a Gair Khatedar tenant or sub-tenant shall also be liable, on applications, to ejectment on any of the grounds mentioned in Section 180(1). Apparently this is an additional remedy of summary nature in addition to the general remedy for filing a regular suit for ejectment. The additional grounds mentioned on which a tenant of Khudkast or Gair Khatedari tenant or sub-tenant can be ejected by the Khudkast or a tenant who has sub-let the land in question are enumerated in clauses (a) to (d) of Sub-Section (1) of Section 180. (50). The ground provided in clause (a) is that if the land in possession of sub-tenant is in excess of minimum area prescribed by the State Government in District or part of the District in which such land is situated and ejectment from the excess land is sought by the landholder for the purpose of his personal cultivation. (51). Clause (b) provides a remedy to lessor against a tenant or sub-tenant holding from for year to year. (51). Clause (b) provides a remedy to lessor against a tenant or sub-tenant holding from for year to year. What is meant by a `tenant or sub-tenant holding from year to year, for the purpose of availing remedy under Sec. 180(1)(b) by a land holder has been defined in Explanation to clause (b). It inter alia provides that a tenant or sub-tenant who remains in possession of holding after the determination of the lease or sub lessee and the lessor or his legal representative accepts rent from the tenant or sub- tenant, or otherwise assents to his continued possession. This Explanation is recognisation of the fact that if a person who has been let in as a tenant or sub-tenant by the Khudkasht or land owner or the tenant, as the case may be, and the land holder allows him to remain in possession of the said land after expiry of term of lease whether by acceptance of rent, in which case consent of land holder is implicit or otherwise manifests his consent to tenants or sub-tenants continued possession cannot be considered as a trespasser qua the lessor for the purpose of availing remedy of ejectment. Such person is considered to be in permissive possession qua the lessor. In this context while devising the remedy to a lessor against a person continuing in possession after expiry of lease by consent, special provision has been made under Section 180. Such a lessor can in addition to availing remedy of filing a suit against a person in possession after such refusal as trespasser, can also resort to make an application under Section 180(1)(b) or 180(1)(e) as the case may be. It may be noticed that it is for the limited purpose of clause (b) of Sec. 180(1) that the definition of a tenant by holding over has been incorporated in the provisions of the Rajasthan Tenancy Act. The Scheme of Sec. 180 is clear in its term. It provides for summary remedy to a lessor-land-holder as distinguished from a land owner to recover possession from a lessee or sub-lessee who is let in possession with lessors permission. The relationship of lessor and lessee is out-come of an agreement or contract. The Scheme of Sec. 180 is clear in its term. It provides for summary remedy to a lessor-land-holder as distinguished from a land owner to recover possession from a lessee or sub-lessee who is let in possession with lessors permission. The relationship of lessor and lessee is out-come of an agreement or contract. The explanation to Sec. 180(1)(b) merely recognises such contractual relationship to continue by consent either implied or express, for the purpose of providing effective and quick remedy for recovering possession from the tenant or sub tenant by the land-holder-lessor. It does not go beyond it to nullify jural effect of Sec. 45. (52). Thus, construed harmoniously no incompatibility remains in the two provisions. Such continuance remains substantively in violation of Section 45. But for the purpose of persuing remedy for recovery of such land from the possession of a person is deemed to be continuing as a tenant or sub-tenant. Lessor need not necessarily take resort to filing a suit by treating the tenant or sub-tenant, as the case may be, as trespassor but such person can be ejected by filing an application under Section 180(1)(b) by the lessor-land-holder treating such person in possession to be in permissive possession even after the expiry of the period of lease. For this limited purpose this provision has been enacted. (53). It may further be noticed that it is not in every case a tenant or sub tenant after expiry of period of lease is considered to be a tenant or sub tenant holding over. It is only when such continuance is with the consent of lessor evidenced by acceptance of rent or by any other mode conveying his assent that the continuance of tenant or sub tenant in possession after expiry of term of lease is considered to be a tenant or sub- tenant by holding over from year to year, for the purpose of providing additional remedy to lessor to recover possession without filing a suit under Sec. 183 founded on trespass. The remedy under Section 183 can be persued where a tenant has continued in violation of Section 45 without consent and remedy by way of an application under Section 180(1)(b) can be persued by the lessor for evicting the person who has continued in possession with consent after expiry of period of lease or sub- lease. (54). The remedy under Section 183 can be persued where a tenant has continued in violation of Section 45 without consent and remedy by way of an application under Section 180(1)(b) can be persued by the lessor for evicting the person who has continued in possession with consent after expiry of period of lease or sub- lease. (54). Thus construed that there remained no conflict between section 45 and Section 180(1)(b). The provision enacted by providing specific remedy cannot be construed to be in conflict with Section 45 of the Act. It has to be read in the context for limited purpose of providing a remedy to the land holder-lessor in specific circumstances enumerated in clauses (a) to (d) of Section 180(1). (55). It may be viewed from another aspect. A continued possession of a sub tenant in violation of Section 45 may render him in unauthorised possession of land. But for the provision of Section 180(1)(b), he has to be treated as trespasser even qua lessor. In such event suit filed by the plaintiff within 12 years of expiry of term of lease shall be within limitation. Construing this way also, the plaintiffs suit could not have been held to be barred by time. (56). In either case, whether plaint is treated as an application under Section 180(1)(b)/180(1)(e) for evicting a sub-tenant by holding over or a suit under Sec. 185 against a sub tenant in unauthorised occupation as a trespasser, the respondents suit/application has to be treated within limitation is demonstrately established. (57). We may also notice that sub-clause (c) of Section 180(1) provides another ground for evicting the tenant or sub-tenant, whether his term has expired under Section 45 or will expire at the end of current year. It permits the lessor to file an application for securing the possession of the land on the ground that such land is required by the land holder-lessor for personal cultivation. (58). It may be relevant to notice here that in fact the respondent has filed an application primarily on the ground that he requires the land for his personal cultivation by making averments that the petitioner sub-tenant has continued in possession of the land from year to year after expiry of the first term of lease which was for 5 years. (59). (59). In view of the aforesaid interpretation of the relevant provisions of the Rajasthan Tenancy Act for the purpose of Section 180(1)(b), the petitioner Tiku was a sub-tenant by holding over so that the remedy of ejecting him under Section 180(1) (b) could be availed by the lessor as well as during the current period of sub-tenancy by holding over, on the ground that the plaintiff required the holding in question for personal cultivation, which ground was also made out. (60). In this connection, we may notice that the decision relied on by the learned counsel for the petitioner in Balveer Singh and Ors. vs. Board of Revenue and Ors. (supra), was in the context of Section 19(1A) of the Tenancy Act about the confirmation of khatedari rights. It was not a case in which the question has been raised in the context of availability of the remedy under Section 180(1)(b) of the Tenancy Act. The observations about the sub-tenant becoming a tenant by holding over under Section 180(1)(b) has been made with reference to the claim of sub-tenant to have acquired khatedari rights under Section 19(1A). (61). We are of the opinion that so far as the conferment of khatedari rights under Section 19(1A) by considering a person continuing in possession after expiry of term under Section 45 as a tenant by holding over is open to serious doubt inasmuch as the Explanation under Section 180(1)(b) has been inserted for the limited purpose of providing remedy to lessor land holder cannot be extended to confer khatedari rights as the sub-tenant in possession is violative of Section 45. No provision under Rajasthan Tenancy Act has been shown to provide for extinction of tenants right where a sub-tenant continues to remain in possession after the expiry of period under Section 45. The right of lessor to recover possession from the person who has been let in possession remain intact. The Explanation to Sec. 180(1)(b) clearly says that it is Limited to the purpose of persuing remedy under Sec. 180(1)(b). Its scope cannot be extended to read it for the general purpose of Rajasthan Tenancy Act so as to result in extinction of parent title. (62). On the other hand, another decision which we noticed above is a Bench decision of this Court in Smt. Kaushal and Ors. vs. Board of Revenue and Ors (Supra). Its scope cannot be extended to read it for the general purpose of Rajasthan Tenancy Act so as to result in extinction of parent title. (62). On the other hand, another decision which we noticed above is a Bench decision of this Court in Smt. Kaushal and Ors. vs. Board of Revenue and Ors (Supra). It was a case where the plaintiffs filed a suit for ejectment against the tenant. The plaintiffs had become khatedar tenant of the suit land. The sub- tenant has claimed that by virtue of Section 19(1)(a) and (b) he had become khatedar tenant because he was sub-tenant by holding over. The Board of Revenue did not accept the plea of sub-tenant on the ground that sub-tenancy cannot be continued exceeding a period of 5 years and thereafter on expiry of such period he becomes trespasser on the land in question. This view of the Board of Revenue was accepted by the Division Bench referring to Section 45 of the Act. In our opinion, the position of a sub- tenant vis-a-vis his claim to acquire a khatedari rights by virtue of Section 19(1)(a) lays down the law correctly. It was unfortunate that the Bench decision was not brought to the notice of learned Single Judge in Balveer Singhs case which was a case decided almost a year after the decision in Smt. Koshliyas case. The decision of the learned Single Judge in Balveer Singhs case is contrary to the earlier Bench decision. For this reason also the decision in Balveer Singhs case was per incurium and cannot be of any assistance to the petitioner. (63). For the reasons stated above, this petition fails and is hereby dismissed. There shall be no orders as to costs.