DEEPversusSTATE OF RAJASTHAN AND ORS.

A                                   DEEPA
                                        v.
                     STATE OF RAJASTHAN AND ORS.

                             DECEMBER 15, 1995
B
                (K. RAMASWAMY AND B.L. HANSARIA, JJ.]

           Tenancy & Land Laws-Rajasthan Land Refomis and Resumption bf
    Jagirs Act, 1952-Section 10-Khatedar tenant-Name of appellant recorded
C   as cultivato,-Land could not be regarded as khudkasht of jagirdar.

         The respondent sought eviction of the appellant by invoking section
  177 of the Rajasthan Tenancy Act, 1955, on the ground that the latter had
  become liable for ejectment becanse of using the land contrary to the
  purpose for which it.was leased. The suit was dismissed on the ground that
D the land being part of jagir, the respondent had no locus standi to file the
  suit, as jagir stood abolished by the force of the Rajasthan Land Reforms
  and Resumption of Jagirs Act, 1952. That order passed in 1963 was
  confirmed by the Board of Revenue on 19.1.1978. The respondent filed an
  application u/s 82 of the Rajasthan Land Revenue Act for making a
  reference to the Board of Revenue to recommend making of entry in the
E record of rights relating to the self same land in favour of an Idol, the
  respondent being its Pujari. The application was allowed. The Board of
  Revenue did not accept the plea of res judicata raised by the appellant and
  held that the appellant's right was not heritable and transferable. The
  High Court also dismissed appellant's appeal. Hence this appeal under
F Art. 136 of the Constitution.

        The appellant contended that respondent himself having accepted
  the appellant as tenant in the first proceeding, a stand different from that
  could not be taken in the present proceeding; that Khasra Girdawari
  showed that the name of the appellant had been recorded as cultivator
G because of which the land could not be regarded as Khudkasht of the
  jagirdar which would make section 10 of the Jagirs Act inoperative, and .
  so, the respondent's name could not be recorded as Khatedar tenant; that
  the veiw taken by the authorities was not correct also because of the
  provisions in Chapter III-A of the Tenancy Act under which even a sub·
H tenant of khudkasht land becomes a khatedar tenant on the required
                                       780
                      DEEPAv. STATE[HANSARIA,J.j                     781

procedure being followed, which must be deemed to have been satisfied A
because of what bas been recorded in the kbasra Girdawari.

      The respondent submitted that though the land was shown in the
kbasra Girdawari under appellant's cultivation, that was not as a tenant
but as an employee of the respoµdent;
                                                                            B
        Allowing the appeal, this Court

      HELD : The respondent himself having accepted the appellant as a
tenant when proceeding under Rajasthan Tenancy Act, 1955 was initiated
against him, had lost that right when the respondent agitated the matter    C
again under section 82 of the Rajastban Land Revenue Act, 1956. It was
the appellant who had to be accepted as a tenant and a khatedar tenant
at that and so, the revenue record could not have been corrected to show
the respondent as the khatedar tenant (781-G, 783-D]

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5523 of D
1995.

     From the Judgment and Order dated 19.9.94 of the Rajasthan High
Court in D.B.C.W.P. No. 6735 of 1992.

        B.D. Sharma for the Appellants.                                     E
        K.S. Bhati for the Respondents.

        The Judgment of the Court was delivered by

       HANSARIA, J. The appellant, who was once accepted by respondent      F
No. 5-Ram Chandra (hereinafter the respondent), as a tenant when
proceeding under Rajasthan Tenancy Act, 1955 (Tenancy Act) was in-
itiated against him, has lost that right when the respondent agitated the
matter again under section 82 of the Rajasthan Land Revenue Act, 1956.
Shortly put, this is the grievance of the appellant, and the same is well   G
founded as it would appear from what is being stated later.

      2. In the first proceeding, the respondent had sought eviction of the
appellant by invoking section 177 of the Tenancy Act on the ground that
the latter had become liable for .ejectment because of using the land
contrary to the purpose for which it was leased. The respondent lost that H
    782                    SUPREME COURT REPORTS [1995J SUPP. 6 S.C.R.

A suit on the ground that the land being part of jagir he had no locus standi
    to file the suit, as jagir stood abolished by the force of the Rajasthan Land
    Reforms and Resumption of Jagirs Act, 1952 (Jagir Act). That order was
    passed on 30.6.1963 and was confirmed even by the Board of Revenue on
    19.1.1978.

B          3. Tn 1987 the respondent filed an application before the Collector
    under section 82 of the Raiaslli"n Land Revenue Act for making a refer-
    ence to the Board of Revenue lo recommend making of entry in the record
    of rights relating to the self-same land in favour of Idol Shri Charbhujaji -
    the respondent being its Pujari. The appellant contended, inter alia, that
C   the matter could not be re-opened in view of the earlier proceeding and,
    in any case, he having become a khatedar tenant under provisions of the
    Tenancy Act, the record of rights could not be corrected to show the
    respondent as a khatedar tenant. The Board of Revenue did not accept the
    plea of res judicata and having taken a view that the appellant's right was
    not heritable ond transferable, granted prayer of the respondent. On the
D   High Court being approached by the appellant, he did not get any relief,
    inter alia, because he had not filed Khasra Girdawari relating to Sambat
    2012 (1957 A.D.) by wnich year fenanc'Y Act had come into force. Hence
    this appeal under Art. 136 of the Constitution.


E          4. Shri Sharma, appearing for the appellant, contended, and rightly,
    that respondent himself having accepted the appellant as tenant in the first
    proceeding, a stand different from that could not be taken in the present
    proceeding. He then urged that Khasra Girdawari, which has now been but
    on record, clearly shows that the name of the appellant had been recorded
    as cultivator by Samba! 2012, because of which the land could not be
F   regarded as Khudkasht of the .iagirdar which would make section 10 of the
    Jagirs Act inoperative, and so, the respondent's name could not be
    recorded as khatedar tenant. As to this submission, the learned counsel for
    this respondent submillcd that though the land was shown in the Khasra
    Girdawari under appellant's cultivation, that was not as a tenant but as an
G   employee of the respondent. This stand is untenable because from the
    impugned judgment of the Board of Revenue in the present proceeding it
    appears that the case of this respondent was that Deepa's father had been
    given the land for cultivation on 11 Panti Basis'\ that is, on share basis, which
    would clearly show that the land was tenanted to Deepa's father and in lieu
H   of cash he was to pay in kind.
                    DEEPAv. STATE [HANSARIA, J.]                        783

       5. Shri Sharma's further contention is that the view taken by the A
authorities is not correct also because of the provisions in Chapter III-A
of the Tenancy Act, under which even a sub-tenant of khudkasht land
becomes a khatedar tenant on the required procedure being followed,
which must be deemed to have been satisfied because of what has been
recorded in the Khasra Girdawari. Now, if a person becomes a Khatedar B
tenant, then by the force of section 9 of the J agirs Act, his right becomes
heritable and fully transferable; and so, the contrary view taken by the
authorities is not correct. Still another weapon in the armoury of Shri
Sharma is that under section 13 of the Marwar Tenancy Act, 1949, (regard-
ing the applicability of which Shri Medh has some objection) the interest
of a tenant is heritable but is not transferable otherwise than in accordance C
with the provisions of that .Act.

      6. We are satisfied (even if what has been stated in section 13 of the
Marwar Tenancy Act is kept out of consideration) that it is the appellant
who has lo be accepted as a tenant and a khatedar tenant at that; and so,
the revenue records could not have been corrected to show the respondent D
as the khatedar tenant.

      7. The appeal is, therefore, allowed with cost by declaring the appel-
lant as the Khatedar ten~nt of the land in question.

R.A.                                                       Appeal allowed.     E