Narendra Mohan Kasliwal, J.
1. The case of the petitioners is that in village Sinota, Tehsil Pipalda, District Kota, one Shri Chhittar Lal s/o Bhura Lal Gujar was the Muafidar of 190 bighas 19 biswas of land comprising Khasra Nos. 211, 298 and 328. A certified copy of the Jamabandi for the Samvat Year 2011 to 2014 has been annexed and marked as Annexure-1, According to the petitioners their father Jagannath s/o Sarwan was cultivating 43 bighas 6 biswas of land comprised in Khasra No. 328 as a sub-tenant since Samvat 2009-2010. At the time of the coming into force of the Rajasthan Tenancy Act, 1955 (here in after referred to as 'the 1955 Act)' on October 15, 1955, the petitioner father Shri Jagannath was entered as Zaili (Sub-tenant in the annual registers and as such he acquired khatedari rights under section 19(1)(a) of the Act.
2. It has been further alleged that Muafi lands of Shri Chhittar Lal were resumed under provisions of the Rajasthan Land Reforms and Resumption Jagirs Act, 1952 with effect from July 1, 1958 and the right, title and interest of Chhitar Lal and every other person claiming through him in his Muafi lands stood resumed to the Government free from all encumbrances.
3. It has been further alleged that Shri Jagannath expired in the year 1968 and he was survived by the petitioners, who are his sons and the land in question was cultivated by Shri Jagannath during his life time and after the death of Jagannath it is cultivated by the petitioners, Shri Chhitar Mal Muafidar died in the year 1965 and he is survived by the respondents. The case of the petitioners further is that on May 14, 1969 Patwari of the Halka upon Mutation No. 160 of village Sinota at the instance of petitioner No. 1 for entering the name of the petitioners as Khatedars of the land in question. The said mutation was checked by the Inspector Land Records and after making necessary inquiry and giving notice to the respondents the Tehsildar Pipalda vide order dated June 16, 1969 held that the Khatedari rights had accrued to deceased Jagannath under the provisions of the 1955 Act and since he was dead the names of the petitioners were ordered to be entered as khatedari tenants of the disputed land. It has been alleged that in the mutation proceedings the respondent did not appear despite service of notice and therefore ex parte proceedings were ordered to be taken against them. In compliance of the order of the Tehsildar dated June 16, 1969, orders were passed in mutation No. 160 of village Sinota, Tehsil Pipalda on June 24, 1969 and the land comprised in Khasra No. 328 measuring 43 bighas 6 biswas was ordered to be mutated in favour of the petitioners vide Annexure-2.
4. The respondents aggrieved against the order of the Tehsildar Pipalda dated June 24, 1983 filed a revision in the Board of Revenue for Rajasthan, Ajmer. The Board vide its order dated May 13, 1977, (Annexure 3) set aside the order of Tehsildar dated June 16, 1969 and also cancelled the mutation carried out as a result of that order. The Board of Revenue held that there was no provision of law under which the Tehsildar could act. In the opinion of the Board of Revenue there seemed to be a dispute between the Jagirdar and cultivator and since the original cultivator and the Jagirdar had died if anyone wished to establish his title a revenue suit had to be filed. The petitioners aggrieved against the judgment of the Board of Revenue (Annexure 3) have filed the present writ petition.
5. The respondents have failed to file any reply to the writ petition, but the learned Counsel for respondents supported the judgment of the Board of Revenue.
6. It has been contended by Mr. Mehrish, learned Counsel for the petitioners, that the Board of Revenue committed a serious error of law in ignoring the provisions of Section 19 of the 1955 Act. It was submitted that village Sinota of Tehsil Pipalda in Kota District had been declared as a colony under Clause (ii) of Section 2 of the Rajasthan Colonisation Act, 1954 and the power of deciding cases of the nature indicated under Section 135 of the Rajasthan Land Revenue Act. 1956, have been conferred vide Government Notification No. F. 8 (185) Re v. II/57 dated December 2, 1958 on the appropriate officers of the colonisation department to whom the powers of the land records officers have been delegated during the currency of survey and record operations. It was submitted that there was no officer of colonisation department and the Tehsildar was authorised to decide the cases of the nature indicated in Section 135 of the Rajasthan Land Revenue Act, 1956. It was argued by Mr. Mehrish that the disputed lands were neither Khudkasht land of Chhitar Lal Muafidar nor they were allotted to the Muafidar as Khudkasht lands under the provisions of Section 16 of the Rajasthan Land Reforms and Resumption of Jagirs Act. Admittedly the lands of the Muafidars had been resumed on July 1, 1958, and thereafter the Muafidar could have acquired khatedari rights under Section 10 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952, and that also in his Khudkasht lands only under Section 13 of the Act. It has been submitted that the Board of Revenue committed a grave illegality in holding that there appeared to be a dispute between a Jagirdar and a cultivator and if anyone wished to establish his title, he was required to file a revenue suit. It is submitted that the question whether any land was the khudkasht land of the Jagirdar or not could only be decided under the provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 and in view of Section 46 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952, the civil or revenue court had any jurisdiction in respect of any such matter which was required to be settled, decided or dealt with by any officer or authority under the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952. It was further argued that under Section 19(1)(a) of the 1955 Act even a sub-tenant automatically became the Khatedar tenant from the date of commencement of the Rajasthan Tenancy (Amendment) Act of 1959 and it was the duty of the Revenue Officers to make entries in this regard in the Revenue record and the Tehsildar Pipalda while attesting mutation in favour of the petitioners was discharging a duty, which was cast by law on him and there was no lack of jurisdiction in the order of Tehsildar, Pipalda. It was submitted that the moment a person was found recorded as a sub-tenant in the annual registers at the commencement of the 1955 Act he was entitled to be recognised as Khatedar tenant and this could be done by mutating the name of such person in the revenue records under the provisions of the Rajasthan Land Revenue Act, 1950. Thus, it was contended that the order of Tehsildar, Pipalda mutating the names of the petitioners was perfectly justified.
7. On the other hand, Mr. Pareek, learned Counsel for the respondents submitted that the name of Chhittar Lal has been recorded in Column No. 5 of Jamabandi as tenant. In Jamabandi (Annexure 1) itself, the name of Jagannath has been recorded as Zaili. It has thus been submitted that the land in question was in the Khudkast of the Muafidar and Jagannath was merely a sub-tenant and after resumption of Jagir the land ought to have been recorded in the Khatedari of Chhittar Lal. It is submitted that when there was a dispute regarding the tenancy rights, the same could not have been decided by the Tehsildar under the provisions of the Rajasthan Land Revenue Act, 1956. It was further argued that under the above referred Notification dated December 2, 1958, it was only Tehsildar Colonisation who was authorised to decide dispute regarding entries in record of rights and the Tehsildar, Pipalda in the present case being not a Tehsildar Colonisation had no power to make any mutation in the record of rights.
8. I have given my careful consideration to the arguments advanced by learned Counsel for both the parties.
9. The Board of Revenue has set aside the order of the Tehsildar on the ground that it had no power under the Rajasthan Tenancy Act, 1955 to decide in the matter of tenancy. It has been observed that basically there appeared to be a dispute between the Jagirdar and the cultivator. Both the Jagirdar and the original cultivator were dead and if anyone wished to establish his title to this land, he will have to do so by approaching the court competent to give this relief. The Board further observed that in other words, a revenue suit had to be filed. In my view, the above approach of the Board in the facts and circumstances of this case is totally wrong and erroneous. There cannot be any dispute that at the time of coming into force of the 1955 Act Jagannath had been recorded as 'Zaili' in Annexure 1 Jamabandi from Samvat year 2011 to 2014.
10. In Ramnath v. Damichand 1954 RLW 672 it was held that 'Zaili' is a sub-tenant and not a trespasser under the Kota State Revenue Court Circular No. 3.
11. Mr. Pareek, learned Counsel for respondents, submitted that the above case was considered in a later case of Madho Lal v. Kalyan 1963 RLW 462 in which the earlier case of Ram Nath (supra) was distinguished and it was held that Zaili in former Kota District may or may not be sub-tenant. It was further held that a person wrongly described Zaili in 'Gasht Girdawari is mere trespasser and may be ejected. I have carefully considered both the above cases.
In Ram Nath's case (supra) a Bench of Wanchoo, C.J. and Bapna, J. considered the argument that in the Kota Circular the word 'Zaili' included a trespasser. It was held as under:
We have seen the definition of the word 'Zaili' given in Section 69 and the subsequent sections and are satisfied that the word 'Zaili' as defined in the Kota Circular cannot include a trespasser. Section 87 deals with the ejectment of a Zaili, i.e., a sub-tenant. There is another section, viz., Section 95 which provides for the ejectment of a trespasser. As the applicant himself had come forward to eject Laxmichand and Ramkishan by an application under Section 87 treating them as Zailies, he cannot now turn round in this Court and say that they were trespassers. Therefore, the Rajasthan Protection of Tenants Ordinance was rightly applied to them.
12. In Madho Lal v. Kalyan (supra) Ranawat, C.J. and Tyagi, J. considered a case where Kalyan filed a suit in the court of Sub-Divisional Officer, Kota for ejectment against Madholal on the allegation that the defendant was a trespasser. The Sub-Divisional Officer, granted a decree for ejectment of Madholal and the same was upheld right upto the Board of Revenue. Madho Lal then filed a writ petition and it was urged on his behalf that he was Zaili as defined under Section 69 of the Circular No. 3 of the then Kota State and reliance was placed on Ramnath's case (supra). The counsel for Madho Lal laid much stress on the fact of the entry in Gasht Girdawari describing him as a Zaili. The court in that case observed as under:
It may be noted that on the whole a 'Zaili may be sub-tenant and even though the definition of the term, Zaili' in Section 69 of Circular No. 3 is very wide, it is seldom that a trespasser may come within the purview of the term. However the marginal noting of Section 77 may have been taken note of by the officer in making the entries in the Gasht Girdawari in the instant case and if so the entry of Zaili may disclose the status of a sub-tenant even though he may be even styled not a Zaili. The facts of the case as mentioned in the judgment of the Board of Revenue are clear and they leave no room for any doubt that Madho Lal enterted into the cultivation of the land during the minority of Kalyan while living with him and cultivating the land on his behalf as a member of his family mere as his agent and manager of the property than as a sub-tenant. The entry in Gasht Girdawari in view of these circumstances has no meaning and it cannot be regarded as giving Madho Lal the status of sub-tenant. It is for these facts the Board of Revenue has tried to distinguish between the case of Zailies, who may be sub-tenants and those who may under peculiar circumstances not be entitled to such a status. This court has no doubt observed in Ram Nath's case that a Zaili is ordinarily a sub-tenant, but having regard to the vague fact of this case, he may even be described as a Zaili in fact he is and the term has not been used correctly in his case. Madho Lal was obviously a trespasser when he tried to cultivate the land in defiance of the tenant and he became a trespasser on that account.
13. The above observations made in the Madho Lal's case are self-evident to show that in the peculiar facts of that case Madho Lal was not given a status of sub-tenant even though he was entered as Zaili in the Gasht Girdawari. In case the learned Judges constituting the Bench in Madho Lal's case (supra) would have differed from Ram Nath's case (supra) which was also a Division Bench case, they would have certainly referred the case to a larger bench, This goes to show that the observations made in Ram Nath's case (supra) that 'Zaili' is a person who is in cultivatory possession of the land of a Khatedar tenant has been approved even in Madho Lal's case (supra) by observing that Zaili is ordinarily a sub-tenant but in the peculiar facts of that case it was held that the term has not been used correctly in that case.
14. Now considering the facts in hand before me Jagannath was recorded as a 'Zaili not only in Annexure 1 Jamabandi but also in Khasra Girdawari (Annexures 4 to 7) which relate to the period from Samvat year 2012-2027. Apart from that the petitioners clearly alleged in the writ petition that their father Jagannath was cultivating the land in question and was entered as a 'Zaili' (sub-tenant) in the annual registers at the time of coming into force of the Tenancy Act and after the death of Jagannath in 1968 the land was cultivated by the petitioners. The above fact is not controverted from the side of the respondents. Even subsequent Khasra Girdawaris from S.Y. 2028-2035 Annxs. 8 & 9 also mentioned the name of the petitioners themselves in the column of tenants and Annxs. 11 to 14 which are Jamabandies for S.Y. 2015 onwards clearly show the name of Jagannath and the petitioners. All the above documents, which remained uncontroverted clearly go to show that till Jagannath was alive, he was cultivating the land and after his death the petitioners are in cultivatory possession of the land in dispute. It is well settled that entries by mutations in the record of rights are meant only for fiscal purpose. In order to fix a liability for payment of revenue to the State after the resumption of muafi land it was necessary to record the names of the petitioners after the death of Jagannath. Such entries have to be made on the basis of possession and will be determined by the Tehsildar under Section 135 of the Rajasthan Land Revenue Act. These entries made for fiscal purpose do not determine any rights if they are challenged by any of the parties. In my view, the order passed by the Tehsildar in this case is not final in the sense that it debars the respondent to claim their khatedari rights, if any, over the land in dispute even after the resumption of muafi land. The Board of Revenue in a Full Bench case in Shri Suraj Mal v. Shri Hazari held that a mutation does not confer any right but merely records the acquisition of any right or interest or lawful possession or some right or interest in land, including khatedari rights whether under Section 15 or 19 of the 1955 Act or through Court order or registered sale or through any other lawful means, the Gram Panchayat will make an enquiry under Section 135 and if the right of interest or lawful possession appears to have been acquired, a mutation will be recorded.
15. The above statement of law made by the Full Bench of Board of Revenue is correct and the impugned order of the Board of Revenue (Annexure 3) dated May 13, 1977, is clearly wrong and illegal. In the above full bench case the Board of Revenue considered the powers in respect of Gram Panchayat while in the case in hand before me there can be no dispute that such power lies with the Tehsildar. As regards the argument raised by Mr. Pareek that the impugned order has been passed by the Tehsildar and not by any Tehsildar Colonization, I rely on the statement made at the Bar by Mr. Mehrish that he was Conversant with the local area and in Tehsil Pipalda in question. No Tehsildar Colonization was ever appointed and it was the duty of Tehsildar, Pipalda itself, who was exercising such power, to order mutation.
16. It is no doubt correct that an inquiry into mutation proceedings is in the nature of a fiscal inquiry to ascertain which of the several claimants for the occupation of agricultural land may be put into possession, so that the State Revenue may not suffer, but at the same time even for the purpose of this summary inquiry it can be seen as to which of the claimants had acquired khatedari rights under the law. Such decision of the authority dealing with the mutation is not intended in law to decide questions of title to property involved there in. In the present case Muafi of Chhitar Lal had been admittedly resumed on July 1, 1958 and Jagannath father of the petitioners was recorded as sub-tenant 'Zaili' in the Jamabandi at the time of coming into force of the 1955 Act. Section 19(1)(a) as it stood after amendment which came into force with effect from April 5, 1959, clearly provided that every person, who at the commencement of this Act was entered in the annual registers then current as a tenant of Khudkasht or sub-tenant of land other than grove land, shall as from the date of commencement of Rajasthan Tenancy (Amendment) Act, 1959, become the khatedar tenant of such part of the land. The land in question was never shown in Khudkasht of the Muafidar Chhitar Lal. Under Section 5(23) of the 1955 Act 'Khudkasht' has been defined as under:
Khudkasht' shall mean land in any part of the State cultivated personally by an estate holder and shall include-
(i) land recorded as Kbudkasht, sir haval nijijot gharkhed in settlement records at the commencement of this Act in accordance with law in force at the time when such record was made, and
(ii) land allotted after such commencement as khudkasht under any Jaw for the time being in any part of the State.
17. Thus, in order to mean a land in Khudkasht it must be either cultivated personally by the estate holder or it must be recorded as Khudkast in the settlement records or it must be a land allotted after such commencement as Khudkasht under any law for the time being in force in any part of the State Prima facie, the case of Chhitar Lal Muafidar did not fall in any of the above categories to hold the land in question in Khudkasht of Chhitar Lal. A notice had been given by the Tehsildar to the respondents before dealing with the application filed by the petitioners for mutating their names in place of their deceased father Jagannath. No body has appeared on behalf of the respondents and the Tehsildar in these circumstances, was perfectly justified in passing the impugned order and to make mutation in favour of the petitioners. The Board of Revenue did not apply its mind at all to the merits of the question and simply set aside the order of the Tehsildar taking in view that the Tehsildar had no jurisdiction to decide such controversy. I am clearly of the view that in mutation proceedings also an inquiry can be made and if automatically by operation of the provisions of law like Section 19(i)(a) of the 1955 Act Khatedari rights were conferred on a sub-tenant, then such authority was competent to record Khatedari in favour of the subtenant in mutation proceedings as well.
18. This writ petition is allowed, the order of the Board of Revenue (Annexure 3) dated May 13, 1977, is quashed and set aside and order of the Tehsildar Pipalda is maintained. Parties are left to bear their own costs.