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Rajasthan High Court · body

2008 DIGILAW 740 (RAJ)

Banshidhar v. Hanuman

2008-03-10

G.K.TIWARI, R.S.AGRAWAL

body2008
Honble AGRAWAL, M.—This is an appeal under Section 224 of the Rajaslhdn Tenancy Act, 1955 (hereinafter referred to as the Act) against the judgment and decree dated 6.8.04 or Revenue Appdlate Authority Jaipur passed in appeal No. 257/0 I by which he dismissed the appeal and upheld the judgment dated 23.8.2001 of Assistant Collector, Chomu passed in case No. 181/89. 2. Briefly stated the facts are that the disputed old khasra No. 385, 386, 420, 421, 422, 423, 424, 425 and 426 area measuring 18 bighas 18 biswas with corresponding new khasra Nos. 733, 734, 892, 893 and 894 which were further convened into khasra No. 121, 122, 277, 278, 279 and 280 total area 7.71 hectares located in village Pratappura of Tehsil Amber in Jaipur District stood in the joint khatedari tenancy of plaintiffs-appellants and defendant-respondents No.1 and 3 with equal rights. According to Plaintiff-appellants, Hanuman - the respondent No. 1 - a recorded co-tenant of the land in question, relinquished his share in favour of plaintiff- appellants on 21.3.87 through a registered deed of relinquishment. Subsequently Hanuman (respondent No 1) sold the same land to respondent No.2 through registered sale deed. Plaintiff appellants filed a suit for declaration and permanent injunction against the defendant-respondents in the Court of Assistant Collector, Chomu, who by his decision dated 23.8.2001 dismissed the suit mainly on the ground that tenancy rights cannot be transferred by a khatedar tenant through a deed of relinquishment. Aggrieved against this decision of Assistant Collector, plaintiff-appellants filed an appeal before Revenue Appellate Authority, Jaipur who by his decision dated 6.8.2004 dismissed the appeal and upheld the judgment of Assistant Collector. Aggrieved against this impugned decision dated 6.8.2004 of Revenue Appellate Authority, Jaipur, the instant second appeal is preferred. 3. We have heard the learned counsel for the appellants. 4. The learned counsel for the appellants has argued that the respondent No.1 who is the recorded khatedar of the disputed land has relinquished his interest in the disputed land in favour of the appellants through a registered deed of relinquishment executed on 21.3.1987. Thus, the tenancy rights of respondent No.1 stand extinguished and the same are transferred to the appellants. It is argued that the disputed land is ancestral land. So a recorded co-tenant can relinquish his share in favour of other co-tenants. Thus, the tenancy rights of respondent No.1 stand extinguished and the same are transferred to the appellants. It is argued that the disputed land is ancestral land. So a recorded co-tenant can relinquish his share in favour of other co-tenants. It was also argued that lower Court erred in not recognizing transfer of tenancy through relinquishment deed even though the deed of relinquishment is a registered document. Learned counsel cited RBJ (5) 1998 page 407 and 29 in support of his contention. It was also argued that under Section 63 of the Act al though the khatedari rights are not transferred but the interest in the land of the executor of the deed of relinquishment become extinguished and thus by implication tenancy rights get vested in the person in whose favour rights are relinquished. It was also argued that the trial Court did not give decision issue-wise, although nine issues were framed in the case. 5. We have given our thoughtful consideration to the contentions of the learned counsel for the appellants and caretl1lly studied the impugned judgments of both the lower Courts and perused the record and document available on the file. 6. The main plea of the appellants is that the respondent No. 1 Hanuman who is a recorded co-tenant of the land ill question has relinquished his tenancy rights in favour of the appellants and as such the appellants have become khatedar tenants of the land. Learned counsel for the appellants has not cited any provision under the Act that tenancy rights can be transferred ill favour of any person through a deed of relinquishment. Chapter-IV or the Act contains detailed provisions for transfer of tenancy rights from Sections 38 to 53 - which comprise inter alia devolution, transfer, exchange and division of tenancy fights in agricultural holding. Nowhere in Chaptel-IV of the Act appears any provision for transfer of tenancy by way of relinquishment. The Chapter-V of the Act deals with surrender, abandonment and extinction of tenancy rights. Provision for relinquishment of tenancy rights through deed of relinquishn1ent does not figure in this Chapter also. Aforementioned rulings cited by learned counsel for the appellants are pertaining to Indian Stamp Act and are not applicable in respect of the Act. 7. The Chapter-V of the Act deals with surrender, abandonment and extinction of tenancy rights. Provision for relinquishment of tenancy rights through deed of relinquishn1ent does not figure in this Chapter also. Aforementioned rulings cited by learned counsel for the appellants are pertaining to Indian Stamp Act and are not applicable in respect of the Act. 7. The learned counsel for the appellants has pleaded that by virtue of deed of relinquishment, executed by the respondent No. 1, tenancy rights of the executor of the deed stand extinguished and get transferred in favour of the appellants. This plea is not tenable. Section 63 of the Act runs as follow: Section 63. Tenancy when extinguished [(1)] The interest of tenant in his holding or a part thereof, as the case may be, shall be extinguished (i) When he dies leaving no heir entitled to merit in accordance with the provisions of this Act; (ii) When he surrenders or abandons it in accordance with the provisions of this Act. (iii) When his land has been acquired under the Land Acquisition Act, 1894 (Central Act No. 1 of 1894); (iv) When he has been deprived of possession and his right to recover possession is barred by limitation; (v) When he has been ejected therefrom in accordance with the provisions of this Act, (vi) When he acquires or succeeds to all the rights therein of a landholder or the landholder inherits or otherwise acquires the same. (vii) When he sells or makes a gift thereof ill accordance with the provisions of this Act. [orJ (viii) if he migrates from India to a foreign country without obtaining a valid passport or without lawful authority. [(ix) if the allotment of land is cancelled or the land is ordered to be resumed under the provisions of the Rajasthan Land Revenue Act, 1956 (Rajasthan Act No. 15 of 1956) or rules framed thereunder or under any other law for the tiI11e being in force.] 8. Nowhere in the above Section 63 does there appear any provision of relinquishment of tenancy rights through deed of relinquishment leading to extinction or tenancy rights. 9. However there are provisions of surrender and abandonment of tenancies in Chapter- V of the Act. Surrender of tenancy under Section 55 of the Act is always in favour of the landholder, i.e., State Government. 9. However there are provisions of surrender and abandonment of tenancies in Chapter- V of the Act. Surrender of tenancy under Section 55 of the Act is always in favour of the landholder, i.e., State Government. Under Section 60 of the Act tenancy rights can also be extinguished through abandonment. Whether relinquishment is akin to abandonment - needs looking into the ingredients of abandonment as contained in Section 60 which runs as follow: Section 60. Abandonment (1) Subject to the provisions of Sub-Section (2) and (3) a tenant who ceases to cultivate and leaves the neighbourhood shall not lose his interest in his holding if he leaves in charge thereof a person responsible for paYI11ent of rent as if falls due and gives written notice to the landholder of such arrangement. (2) If the person so left in-charge is a person (a) on whom, in the event of the tenants death, the tenants interest would devolve, or (b) Who is to manage the holding for the benefit of the person on whom, in the event of the tenants death, the tenants interest would devolve, the tenant shall on expiry of a period of seven years lose his interest in his holding unless he, within such period, resumes cultivation thereof, and such interest shall devolve on the person on whom the tenants interest would devolve in the event of his death. (3) If the person so left in-charge is not person mentioned in sub-section (2), the tenant shall on the expiry of the period for which he could have sub-let, be presumed to have abandoned his holding unless within such period he resumes cultivation thereof. (4) A tenant who ceases to cultivate and leaves the neighbourhood otherwise than in accordance with the provisions of sub-section (1), shall be presumed to have abandoned his holding. 10. Perusal of above mentioned provisions make it clear that the deed of relinquishment, referred to by the appellants, does not make the land abandoned by t he executor of the deed leading to extinction of tenancy rights in respect of him as eh resumed the land and sold it through the registered deed to respondent No.2. 11. Modes of transfer of agricultural tenancies cannot be other than those provided under the Act. 11. Modes of transfer of agricultural tenancies cannot be other than those provided under the Act. Apart from testamentary and non-testamentary devolution of tenancies (Sections 39 and 40) tenancy rights can be exchanged (Sections 48 to 52) and divided (Section 53). Sections 41 and 42 of the Act govern transferability of khatedars interest in agricultural holding, according to which the sale, gift and bequest by a khatedar tenant of his interest in the whole or part of his agricultural holdings are subject to the restrictions provided in Section 42. Short term transfer of tenancy rights can be done by way of mortgage (Section 43), letting and sub-letting (Sections 44 and 45) subject to restriction provided thereunder. It is abundantly clear in light of these provisions that transfer of khatedari rights through relinquishment in favour of a person through a deed of relinquishment does not figure in any of these provisions relating to transfer of agricultural tenancies. Thus, deed of relinquishment cannot be an instrument to effect transfer of tenancy rights from a recorded khatedar tenant to any other person according to the Act. If it were done, it would not only defeat the provision and purpose of Section 42 of the Act but also lead to huge pilferage of stamp duty leviable on deeds of sale and gift of agricultural holdings circumventing the law. 12. It would not be out of place to mention here that the Rajasthan Tenancy Act, 1955 is not only a special Act of over-riding effect but also an Act of land reforms. The transfer of agricultural tenancy is governed strictly according to the provisions of this special Act and not by any other law so long as there are express provisions of transfer of tenancies in the Act. If there is any provision in any other law with regard to transfer of proprietary rights in any immovable property which is at variance: with the provision of transfer of khatedari interest in agricultural holding as contained in the Act, the provisions of the latter would prevail over the former. Thus, it is evident from the above discussion that tenancy rights cannot be transferred through a deed of relinquishment by a khatedar tenant. 13. The plea of the appellants that the impugned decision dated 23.8.2001 is not issue-wise, is not tenable. Thus, it is evident from the above discussion that tenancy rights cannot be transferred through a deed of relinquishment by a khatedar tenant. 13. The plea of the appellants that the impugned decision dated 23.8.2001 is not issue-wise, is not tenable. A perusal of the decision dated 23.8.2001 of Assistant Collector Chomu makes it dear that he has discussed every issue framed and his decision is issue-wise. Learned Revenue Appellate Authority has concurred in the findings of Assistant Collector, Chomu, so it is not necessary for him to give issue-wise separate findings. Plea of the appellants that the land is ancestral land is not corroborated by any evidence on record. Thus, we do not find any infirmity in this respect in the impugned decision of tile learned Revenue Appellate Authority, Jaipur. 14. In the result, the appeal stands dismissed being of without any force. Pronounced.