Judgment:
Narendra Mohan Kasliwal, J.
1. The case of the Petitioner is that he was Khatedar tenant of agricultural land bearing Khasra No. 190 measuring 20 Bighas 10 Biswa and Khasra No. 191 measuring 8 Biswas Situated village Allapun Tehsil Bayana, District Bharatpur. According to the petitioner, he was in cultivatory possession of the above land as such he became Khatedar in Samvat 2012 on the coming into force of Section 15 of the Rajasthan Tenancy Act, 1955 (here in after referred to as 'the Act') The Patwari of the village made a wrong entry in Khasra Girdawari of Samvat 2015 by mentioning that half of Khasra No. 190 was of Kanchan and wrongly entered Kanchan as Khatedar of the land. The Tehsildar made an inquiry and after site inspection in Samvat 2017 made the correction by entering the name of the petitioner in place of Kanchan. The Patwari again in Samvat 2018 wrongly entered the names of Ramkhilari, Lahasaniya and Ghamandi sons of Kanchan and the said entry continued upto Samvat 2021. These person also threatened to take possession under the garb of the above wrong entries as such the petitioner filed a suit for declaration that he was Khatedar tenant of the entire land and the wrong entries should be corrected and the respondents be restrained from entering into above land. respondents
2. Learned Sub-Divisional Officer, Bayana by judgment dated November 18,1970, (Ex. 1) dismissed the suit filed by the petitioner. The petitioner filed an appeal before the Revenue Appellate Authority. The Revenue Appellate Authority held that petitioner was in cultivatory possession of the land as Gair Mauroosi Kashtkar from Samvat 2004. It also found that the wrong entry of Samvat 2015 in favour of Kanchan had been corrected in Samvat 2017 and the petitioner-plaintiff was in continuous cultivatory possession from Samvat 2004 to 2016. It was also held that the petitioner had been recorded as Gair Mauroosi tenant and as such became Khatedar in Samvat 2012 under Section 15 of the Act. The Revenue Appellate Authority as such allowed the appeal and decreed the suit filed by the petitioner vide its judgment dated October 1, 1977 (Ex. 2).
3. The defendant-respondents filed a second appeal before the Board of Revenue. The Board of Revenue held that Khasra Giriawari Ex P. 1 showed that the plaintiff was Gair Mauroosi tenant for six years The Board held that entry in column No. 6 of the Khasra Girdawari is supposed to be carried over from the Jamabandi. It was hard to believe that Jamabandi would mention in this column the number of years for which the person recorded had been a Khatedar, Gair Khatedar or sub-tenant. It was observed that such an entry is never made. The Board further observed that in the Khasra Girdawari of Samvat 2014 again the plaintiff has been shown as Gair Mauroosi for 10 years. According to the Board, this suggested that the plaintiff prevailed upon the land records staff to record his possession in this manner. It was thus held by the Board that the Revenue Appellate Authority made two fundamental mistakes The first is that a Gair Mauroosi is not a full fledged tenant. It was difficult to accept that even if the plaintiff was recorded in the Jamabandi of Samvat 2012 as Gair Mauroosi, he would be entitled to khatedari rights under Section 15 of the Act. It was held by the Board that under Section 15 of the Act tenants of Khudkasht and subtenants have been excluded and it only covers cultivators having full tenancy rights. The Board of Revenue referred to Section 131 of the Revenue Code (1905) of Bharatpur State and held that under the above Section a tenant holding the land continuously for a period of 12 years can have a right of occupancy in such land provided he is not holding as a lessee under a lease for a term of not less than 7 years or as a sub-tenant. It was thus held that since at the time of commencement of the Rajasthan Tenancy Act, the plaintiff had not been in possession for 12 years, even if his possession was counted from Samvat 2004, it cannot be said that he was an occupant tenant so as to entitle him to Khatedari rights on the coming into force of the Act. The Board of Revenue further observed that the second mistake of the learned Revenue Appellate Authority was that he could not have declared that the plaintiff was a Khatedar under Section 15 of the Act in the absence of any Jamabandi of Samvat 2012. The plaintiff only produced Khasra Girdawaris, which were not record of rights to establish his claim. The Board, however, observed that it did seem to them that the defendants had even less title than the plaintiff it was not for them to prove their case. Apart from that, since the plaintiff himself said that the Patwari had wrongly entered the name of the father of the defendants in the Khasra Girdawari and this position continued, as such it was quite clear that the plaintiff was not in possession. In case the plaintiff felt that the defendants were trespassers he ought to have filed a suit under Section 183 and not Section 188 of the Act. The plaintiff having not asked for possession he could not, in any case have been given the relief of declaration of his title in view of the proviso to Section 34 of the Specific Relief Act, 1963. The Board of Revenue for the above reasons set aside the judgment and decree of the Revenue Appellate Authority and restored that of the trial Court by judgment (Ex 3) dated August 17, 1976. In these circumstances, this writ petition has been filed by the petitioner, Mistri Lal.
4. Mr. Agrawal, learned Counsel for the petitioner, submitted that the judgment of the Board of Revenue suffers from errors apparent on the face of record and is liable to be quashed. It was submitted that the name of the petitioner is entered in all the revenue records including Jamabandis which were prepared in Samvat 2005, 2009, 2013 and upto Samvat 2029. All these Jamabandis, were in the records of the Sub-Divisional Officer, Bayana but all these documents were not produced by the plaintiff as it would have resulted in making the record bulky. The record of the Girdawari and rent receipts were already produced. The defendants, on the other hand, did not produce any Jamabandi or revenue record in their favour nor could show their possession at any time over the lands in question. The petitioner has filed Jamabandi Ex. 4 of Samvat 2005, Jamabandi Ex. 5 of Samvat 2009 and Jamabandi Ex. 6 of Samvat 2013, which all go to show that the name of the petitioner Mishri has been shown in Column No. 5 of tenant. It was thus submitted that the Board of Revenue committed a serious error of Jaw in holding that khasra girdawari was not to be relied upon in absence of Jamabandi and without any basis drew a wrong inference against the plaintiff that Jamabandi was not in his favour.
5. It was further argued by Mr. Agrawal that the Board of Revenve also committed a serious error of law in holding that the record of khasra girdawari was of no consequence. In the instant case the record of the Girdawari was prepared on the basis of Jamabandi. The defendants never alleged that the Jamabandi was wrongly prepared or the name of the defendants where ever recorded in any Jamabandi nor they produced any Jamabandi in their favour. The defendants never challenged the entries in the khasra girdawaris right from Samvat 2004 to Samvat 2015. The Patwari for the first time made a wrong entry in Samvat 2015 and that also mentioning half share in Khasra No. 190. The said entry was subsequently corrected by the Tehsildar in Samvat 2017. It was thus argued by Mr. Agrawal that inspite of that the Patwari again made a mistake in recording the names of the defendants again in Samvat 2018 and that also in respect of both the Khasra Nos. 190 & 191. There was no rhyme or reason nor any basis for entering the names of the defendants in Khasra girdawaris and the plaintiff being in regular cultivatory possession was entitled to bring a suit merely for declaration under Section 188 and to seek a relief of injunction against a defendant. It was submitted that there was no justification for the Board of Revenue to hold that the plaintiff prevailed upon the staff of the land-records in recording his possession in this manncer.
6. Mr. Agrawal further contended that the Board of Revenue committed a serious error of law in interpreting Section 131 of the Bharatpur Revenue Code. The Board of Revenue itself has observed that it had seemed to them that the defendants had even less title than the plaintiff. It is submitted that after making the above observations there was no justification for dismissing the case of the plaintiff. Even if the case of the defendants is taken at its best, they cannot claim to become Khatedars. Even the wrong entry in favour of their father Kanchan was made for half share in Khasra No. 190 for the first time in Samvat 2015 but the same was corrected later on in Samvat 2017. There was no documentary evidence on the record to establish that the defendants at any time cultivated the land in question or were in possession of any part of these lands at any time. The plaintiff petitioner only wanted to remove the clouds cast on his title by the defendants as their names had again been wrongly entered in Samvat 2018 and the suit was perfectly in order for declaration and injunction.
7. It may be mentioned at this stage though this writ petition was filed as early as in October 1976 and the respondents had put in appearance by filing a caveat in January 1977 but no reply to the writ petition has been filed till the hearing of the writ petition. The arguments in the case were heard and concluded on December 12, 1986. Learned Counsel for the respondents was permitted to file written arguments and as such written arguments were submitted by the respondents.
8. It has been submitted in the written arguments that this Court in the exercise of jurisdiction under Article 226 of the Constitution is not entitled to sit as a court of appeal. Certiorari jurisdiction is only available in very restricted circumstances. It has been further submitted that Gair Mauroosi tenant in Bharatpur State could not have obtained tenancy right unless such tenants cultivated a land for a continuous period of 2 years. It has been submitted that the Rajasthan Tenancy Act came into force on October 15 1955 corresponding to Samvat 2012. The Rajasthan Tenancy Act itself did not repeal the Bharatpur Code at its commencement. On the contrary, the Bharatpur Code came to be repealed only at a later stage i.e. on the promulgation of the Rajasthan Land Revenue Act, 1956. It has thus been submitted that it was wrong on the part of the petitioner to contend that the Bharatpur Code was not in force in Samvat 2012. Thus, if the Bharatpur Code was in force at the relevant time then according to Section 131 of Bharatpur Code no person could have occupancy rights in an agricultural land unless 12 years continuous cultivatory possession was proved strictly in terms of Section 131. It has been further submitted that even under the Rajasthan Tenancy Act the petitioner does not come under the definition of tenant given in the Tenancy Act. The plaintiff has not proved that he was paying any rent to the State or to the land-holder. There cannot be any manner of doubt that the land in question was either Jagirdari land or a Biswedari land. The plaintiff himself made a statement to the effect that he came into the occupation of the land with the permission of some Biswedar, which goes to prove that the land was a Jagirdari land. The plaintiff has nowhere proved as to what rent he was paying to whom and whether there was any contract in this regard Mere payment of some rent voluntarily to some person would not make a person a tenant under the Rajasthan Tenancy Act, particularly when the rent is paid to the Government. It is not for the Government to see at that time whether the rent is being rightly paid by a person entitled to be a tenant. The receipts of rent relied upon by the petitioner are of no significance. The two receipts Ex. P 6 and Ex. P 7 of December 4, 1967 and May 25, 1955 alleged to have been filed by the plaintiff during the trial before the Sub-Divisional Officer did not indicate as to which land is covered by those receipts. It is also not mentioned as to on what account the amount has been paid.
9. It has been further submitted that the plaintiff never came out with a case in the plaint that he got into occupation of the land in question at the instance of some Biswedar. Thus, the plaintiff is not entitled to make out a case beyond the pleadings. The question whether the petitioner is a tenant or not, is a pure question of fact and the finding of the Board of Revenue in this regard cannot be interfered in the exercise of extraordinary jurisdiction It has been further submitted that the khasra girdawaris had no evidentiary value as regards the title of the person. The preparation of khasra girdawari in favour of a person cannot take place unless there is a jamabandi prepared at any point of time earlier than the khasra girdawari itself. Rule 72 of the Raiasthan Land Revenue (Land Records) Rules, 1957 (here in after referred to as 'the Rules') provides that the number of jamabandi has to be entered in column 4 of khasra girdawari. Thus, this rule itself leads to the conclusion that there should be jamabandi in favour of the petitioner before he can rely upon any khasra girdawari. The petitioner has produced some jamabandi with the writ petition. He should have produced these jamabandis before the trial Court. By lapse of time and merely because of change in the forum no one can be allowed to extend the pleas and adduce new evidence. The entries of the Jamabandi now sought to be produced should not be permitted by this Hon'ble Court and they should not be looked into. Reliance in this regard is placed on the following observations made in Mohinder Singh Gill v. Chief Election Commissioner, New Delhi and Ors. : [1978]2SCR272 :
The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out We may here draw attention to the observation of Bose, J. in Gordhandas Bhanji : [1952]1SCR135 .
Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to effect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
Orders are not like old wine becoming better as they grow older.
10. I have carefully gone through the record and have considered the arguments advanced by learned Counsel for both the parties as well as the written arguments submitted on behalf of the respondents.
11. Entire record shows that right from Samvat 2004 till 2015 the plaintiff-petitioner has been shown as in cultivatory possession of the lands bearing Khasra Nos. 190 and 191. It was only for the first time in Samvat 2015 that the Patwari made an entry of half share in favour of Kanchan and that also in Khasra No. 190. That entry was corrected by the Tehsildar in Samvat 2017. Thereafter, again in Samvat 2018 entries were made in favour of she respondents in respect of both the Khasra Nos. and this gave a cause of action to the plaintiff to file the suit. Khasra Girdawaris are not meant for proving the title but they are certainly relevant for the purpose of showing possession of a person over the land at that relevant time. It is no doubt correct that if there are already certain entries recorded in the jamabandi then khasra girdawari would also contain the same entries but the reverse is not necessary. In the present case, both Khasra girdawaris as well as jamabandis consistently show the name of the plaintiff as cultivator of land in question. Merely because the jamabandis were not filed by the petitioner during trial, the Board of Revenue was not at all justified in drawing adverse inference against the plaintiff that he got any entries made in the Khasra Girdawaris with the connivance of the staff of the land-records. I am constrained to observe that the Board of Revenue was uncharitable and totally wrong in making such observations without any basis. It was not the case of the defendants at any stage even during trial or before the Board of Revenue or before this Court that there were any entries in the Khasra Girdawari or in Jamabandis in favour of the defendant-respondents prior to 2015. In these circumstances, there was no basis what so ever for doubting the correctness of the khasra girdawaris in favour of the plaintiff-petitioner. In order to dispel any doubt which unnecessarily crept in the mind of the Board of Revenue, the petitioner was perfectly justified in placing the certified copies of even Jamabandis before this Court which recorded the name of the petitioner in Jamabandis of 2005. 2009 and 20 3 The respondents had no courage to file any reply nor even in the written arguments they have been able to raise any finger against the genuineness of such entries. The only plea taken in this regard in the written argument is that such documents, which had not been filed during the trial, should not be taken into consideration in the certiorari jurisdiction of this Court. I am not prepared to accept this sort of contention raised on behalf of the respondents. The jamabandis are record of rights and their certified copies Ex. 4, 5 and 6 have been filed from the record of the Tehsil, Bayana and they are entries of public record.
12. It is further important to note that the Board of Revenue itself was compelled to observe that it did seem to them that the defendants had even less title than the plaintiff. The Board of Revenue, however, fell in gross error in observing that it was not for the defendants to prove their case. Both the parties had led their evidence and the question for consideration was as to which party was in possession and whether the plaintiff had acquired khatedari rights or not as claimed by him. In the present case, the entire documentary evidence supported the case of the plaintiff while no document or revenue record has been filed by the defendants in support of their case. As already observed above even no khasra girdawari or rent receipts were filed by the respondents prior to Samvat 2015 when admittedly this controversy had arisen. Learned Counsel for the respondents was unable to place any record or any argument to show as to how the Patwari made an entry of half share in Khasra No. 190 in favour of Kanchan in Samvat 2015 an 1 when it was corrected by the Tehsildar in Samvat 2017, how the name of the defendants came to be recorded again in Samvat 2018 in both the Khasra Numbers. The petitioner, in these circumstances, was perfectly justified to file a suit under Section 188 for injunction against wrongful ejectment. There was no question of filing any suit under Section 183 which relates to ejectment of certain trespassers. It was never the case of plaintiff that the defendants had come into actual possession of the land but he had come forward with a case that wrong entries made by the Patwari were putting a cloud on his title and the defendants were threatening to invade the right of the petitioner and as such he had brought a suit for declaration and perpetual injunction under Section 188 of the Act.
13. Looking the case from another angle also. In Jamabandi Ex. 4 of Samvat 2005 in the column of period of cultivation it has been mentioned that the plaintiff Mishri was cultivating Khasra No. I 90 and 191 for the previous 10 years. This document showed that the plaintiff-petitioner Mishri was cultivating the land in question even since Samvat 1955. Even in Jamabandi Ex. 6 of Samvat 2013, the possession has been shown for the last 10 years. Leaving aside the above question of previous possession it is beyond any manner of dispute that on October 15, 1955, when the Rajasthan Tenancy Act came into force and also in 1956 corresponding to Samvat 2013 when according to the respondents own showing in the written arguments that the Bharatpur Revenue Code had been repealed the plaintiff alone was recorded as Gair Mauroosi tenant in the Jamabandi as well as in Khasra Girdawari Section 15 of the Rajasthan Tenancy Act confers Khatedari rights on tenants. Section 14 only classified the following kinds of tenants:
(a) Khatedar tenants;
(aa) Maliks;
(b) Tenants of Khudkasht; and
(c) Gair Khatedar tenants.
Section 15 reads as under:
(1) Khatedar Tenants-(1) Subject to the provisions of Section 16 (and Clause (d) of Sub-section (I) of Section 180) every person who at the commencement of this Act, is a tenant of land otherwise than as a sub-tenant or a tenant of Khudkast or who is, after the commencement of this Act, admitted as a tenant otherwise than as a sub-tenant or a tenant of Khudkasht (or an allottee of land under in accordance with rules made under Section 101 of the Rajasthan Land Revenue Act, 1956 (Rajasthan Act 15 of 1956) or who acquires Khatedari rights in accordance with the provisions of this Act or of the Rajasthan Land Reforms and Resumption of Jagir Act, 1952 (Rajasthan Act VI of 1952) or of any other law for the time being in force shall be a khatedar tenant and shall subject to the provision of this Act be entitled to all the rights conferred and be subject to all the liabilities imposed on Khatedar tenants by this Act:
Provided that no Khatedari rights shall accrue under this section to any tenant, to whom land is or has been let out temporarily in Gang Canal Bhakhra, Chambal or Jawai project area or any other area notified in this behalf by the State Government;
(2) Not with standing anything contained in Sub-section (1), khatedari rights shall not accrue there under to any person to whom land had been let out before the commencement of this Act by the State Government in furtherance of the 'Grow More Food Compaign' or under some special order or subject to some specified 'conditions or in pursuance of some statutory or non-statutory rules and who shall have, before such commencement, made a default in securing the objective of such campaign or a breach of any such order, condition or rule;
(3) Any person referred to in Sub-section (2) may, within three years from the date of commencement of this Act and on payment of a court-fee (twenty five naye paise) apply to the Assistant Collector having jurisdiction praying for a declaration that he acquired khatedari rights under Sub-section (I) in the land held by him;
(4) such application may be made on any of the following grounds, namely:
(a) that the land held by him was let out to him after the commencement of this Act;
(b) that it was not let out to him in any of the circumstances specified in Sub-section (2);
(c) that when the land was so let out to him he was not apprised of such circumstances;
(d) that he had, before such commencement, made no default or breach of the nature specified in Sub-section (2);
(5) The Assistant Collector shall, upon the presentation of an application under Sub-section (3), make inquiry in the prescribed manner and afford reasonable opportunity to the applicant of being heard and shall, if he does not reject the application, declare the applicant to have become a khatedar tenant of his holding in accordance with and subject to the provisions of the Sub-section (1).
14. Admittedly, the plaintiff petitioner was neither a sub-tenant nor tenant of Khudkasht. Even if he was shown as Gair Mauroosi, he all the same remained as a tenant as his name is shown in column 5 of Jamabandi which records the name of the cultivator along with his period of such cultivation. A tenant in Clause (43) of Section 5 of the Act has been defined as under:
'Tenant' shall mean the person by whom rent is or but for a contract, express or implied, would be, payable and, except when the contrary intention appears, shall include-
(a) in the Abu area, a permanent tenant or a protected tenant;
(b) in the Ajmer area, an ex-proprietary tenant or an occupancy tenant or a hereditary tenant or a non-occupancy tenant or a Bhooswami or a Kashtkar;
(c) in the Sunel area, an ex-proprietary tenant or a Pakka tenant or an ordinary tenant;
(d) a co-tenant;
(e) a grove-holder;
(f) a village servant;
(ff) a tenant holding from a land owner;
(g) a tenant of Khudkasht;
(h) a mortgagee of tenancy right; and (i) a sub-tenant.
but shall not include a grantee at a favourable rate of rent or an ijaredar or a the kadar or a trespasser.
15. According to the above definition every person would be a tenant by whom rent is or but for a contract express or implied would be payable. There can be no manner of doubt all that the rent was payable by the plaintiff as he alone was cultivating the land even though be might have been recorded as Gair Mauroosi tenant. Thus, the petitioner fell clearly within the definition of tenant and was entitled to be recorded as a khatedar tenant after the repeal of the Bharatpur Revenue Code in 1956 under the provisions of Section ] 5 of the Rajasthan Tenancy Act. There is no question of making out any new case by the plaintiff beyond the pleadings and the question whether this land was a jagir land or any biswedari was totally besides the controversy raised in the case. The observations of the Supreme Court in Mohinder Singh Gill's case (supra) render no assistance to the respondents.
16. Thus, in my view, the Board of Revenue committed an error apparent on the face of the record and committed a patent error of law in allowing the appeal and dismissing the suit of plaintiff.
17. In the result, this writ petition is allowed, the judgment of the Board of Revenue Ex. 3 dated August 16, 1976 and that of the Sub-Divisional Officer, Bayana (Ex. 1) dated November 18, 1973, are hereby quashed and the judgment of the Revenue Appellant Authority Ex. 2 dated October 1, 1971, is held to be valid and the plaintiff's suit as decreed by the Revenue Appellate Authority is upheld. In the facts and circumstances of the case, the parties are left to bear their own costs.