PETITIONER:
KISHORI LAL
Vs.
RESPONDENT:
BIRDHI LAL & ORS.
DATE OF JUDGMENT10/03/1976
BENCH:
SINGH, JASWANT
BENCH:
SINGH, JASWANT
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
CITATION:
1976 AIR 2011 1976 SCR (3) 588
1976 SCC (2) 239
ACT:
Constitution of India. Art. 226-Concurrent decisions of
Revenue authorities-Apparent error of law-Whether High
Court's interference justified.
Rajasthan Tenancy Act, 1955, S. 5 (44), essential
conditions, if satisfied- Rejection of alternative case
under s. 180.
HEADNOTE:
The appellant brought a suit for possession of land
against respondent Birdhi Lal, under Ss. 180 and 183 of the
Rajasthan Tenancy Act, 1955. The Assistant Collector, Baran,
dismissed the suit, but the Revenue Appellate Authority
allowed his appeal and held that Birdhi Lal was a
trespasser. A further appeal by Birdhi Lal was dismissed by
the Board of Revenue, Rajasthan. Thereafter, his application
made under Art. 226 was allowed by the High Court. The High
Court held Birdhi Lal to be a tenant within the meaning of
s. 5(43), and not a trespasser as conceived by s. 5(44). On
appeal by special leave, the appellants contended before
this Court that the High Court was not justified in
exercising appellate jurisdiction and interfering with the
concurrent opinions of the Revenue authorities. It was
further contended that even if Birdhi Lal was held to be a
tenant. he was liable to be ejected, as the original suit
had been framed alternatively under s. 180 of the Act.
Dismissing the appeal, the court
^
HELD: (1) The material on record does not establish
that Birdhi Lal took or retained possession of the land
without authority. The essential conditions for holding
Birdhi Lal to be a trespasser under s. 5(44) were manifestly
not satisfied. The High Court was right in rectifying the
error of law apparent on the face of the record and quashing
the judgments of the Appellate Revenue Authority and the
Board of Revenue. [589F-H & 590A]
(2) The alternative case under s. 180 required
necessary averments and proof of facts which were absent in
the case. The plea therefore, cannot be entertained. [590 C-
D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1436 of
1975.
Appeal by special leave from the Judgment and order
dated 10-3-1975 of the Rajasthan High Court in D. B. Civil
Writ Petition No. 384 of 1968.
Ahmed Bux, Beni Madhav Sharma, M/s. V.J. Francis & R.A.
Gupta, Advocates for the appellants.
S.M. Jain & Sushil Kumar Jain, Advocates for respondent
No. 1.
The Judgment of the Court was delivered by-
JASWANT SINGH,J.-This appeal by special leave is
directed against the judgment dated March 10, 1975 of the
High Court of Rajasthan at Jodhpur passed in Civil Writ
Petition No. 384 of 1968.
The facts leading to this appeal are: On July 1, 1961,
Kishori Lal, the appellant herein, brought a suit in the
court of the Assistant Collector, Baran, against Birdhi Lal,
respondent No. 1, for possession of land comprised in khasra
Nos. 513, 669 and 678 situate in village Balakhera of Anta
Tehsil of Kota District under sections 180 and 183 of the
Rajasthan Tenancy Act, 1955 (hereinafter referred to as the
Act). By his judgment dated December 24, 1962, the
589
Assistant Collector dismissed the suit. The appellant
thereupon preferred an appeal to the Revenue Appellate
Authority who allowed the same by his judgment dated
November 9, 1963, and reversing the judgment of the
Assistant Collector decreed the suit holding that Birdhi Lal
was a trespasser. Aggrieved by the judgment and decree of
the Revenue Appellate Authority, Birdhi Lal took the matter
in further appeal to the Board of Revenue, Rajasthan, but
remained unsuccessful as the members of the Board affirmed
the view taken by the Revenue Appellate Authority.
Dissatisfied with the decisions of the Revenue Appellate
Authority and the Board of Revenue, Rajasthan, Birdhi Lal
approached the High Court of Rajasthan by means of a
petition under Article 226 of the Constitution. The High
Court by its aforesaid judgment and order dated March 10,
1975, allowed the petition and held that Birdhi Lal being a
tenant within the meaning of section 5(43) of the Act and
not a trespasser as conceived by section 5(44) of the Act,
was not liable to be ejected from the land. Dissatisfied
with this judgment, Kishori Lal has come up this Court.
The learned counsel for the appellant has, while
supporting the appeal, vehemently tried to press upon us
that as the High Court has exercised appellate jurisdiction
and substituted its own opinion for the opinion of the
Revenue authorities contrary to the well established
principles of law, the impugned judgment cannot be
sustained. Elaborating his submission, the learned counsel
has submitted that since both the Revenue Appellate
Authority and the Board of Revenue had concurrently held
that Birdhi Lal was a trespasser and there was no error
apparent on the face of the record, the High Court was not
justified in interfering with the aforesaid decisions of the
Revenue Appellate Authority and the Board of Revenue. The
contention advanced on behalf of the appellant is, in our
opinion, wholly untenable. The expression ‘trespasser’ is
defined in section 5(44) of the Act as follows:-
“5(44). Trespasser shall mean a person who takes
or retains possession of land without authority or who
prevents another person from occupying land duly let
out to him”.
The above definition makes it clear that in order to be
able to succeed in his suit, Kishori Lal had to show that
Birdhi Lal had taken or retained possession of the land
without authority or that he had prevented him from
occupying the land duly let out to him. In the instant case,
there was no allegation by the appellant in his plaint that
he was prevented by Birdhi Lal from occupying the land which
had been let out to him. The only point that we are,
therefore, left to determine is whether Birdhi Lal took
possession or retained possession of the land without
authority. The material on the record does not at all
establish any of these elements. On the other hand, as
rightly pointed out by the High Court, the Parcha lagan,
Exhibit A-3 and Pantinama, Exhibit A-4 clearly show that the
land in question had been let out by the appellant to Birdhi
Lal on payment of rent. As the essential conditions for
holding Birdhi Lal to be a trespasser were manifestly not
satisfied in the present case, the High
590
Court was perfectly right in rectifying the error of law
apparent on the face of the record and quashing the
judgments of the Appellate Revenue Authority and the Board
of Revenue.
It was next urged that even if the respondent Birdhi
Lal is held to be a tenant by reason of the Pantinama (Ex.
A-4), he was liable to be ejected as the appellant Kishori
Lal had framed his suit alternatively under section 180 of
the Act. Reference to section 180 of the Act shows that it
applies only to suits for “ejectment of Khudkasht or Ghair-
Khatedar tenants or sub-tenants”. Khudkasht is defined in
section 5, sub s. 23 as land “cultivated personally by an
estate holder”. It also includes “land recorded as
Khudkasht, sir, havala, niji-jot, gharkhed in settlement
records” at the commencement of the Act as well as “land
allotted after such commencement as Khudkasht under any
law”. Similarly, the components of rights to sub-tenancy and
gair khatedari tenancies are also determined by the
provisions of the Act. The High Court had recorded the
finding, on this part of the case: “It may be mentioned at
the outset that although the suit was raised by respondent
Kishori Lal under sections 180 and 183 of the Act as
aforesaid, his claim was not upheld under section 180 so
that the suit was decreed as one under section 183”. In
other words, findings of the Revenue Courts as well as the
High Court repel the alternative case sought to be made out
before us. It required necessary averments and proof of
facts which were absent in the case. It was, therefore, a
completely hopeless plea which we cannot entertain at this
stage.
For the foregoing reasons, we do not find any merit in
this appeal which is hereby dismissed with costs.
M.R. Appeal dismissed.
591