Kishori Lal Vs. Birdhi Lal & Ors
 INSC 47 (10 March 1976)
SINGH, JASWANT SINGH, JASWANT RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
CITATION: 1976 AIR 2011 1976 SCR (3) 588 1976
SCC (2) 239
Constitution of India. Art. 226-Concurrent
decisions of Revenue authorities-Apparent error of law-Whether High Court's
Rajasthan Tenancy Act, 1955, S. 5 (44),
essential conditions, if satisfied- Rejection of alternative case under s. 180.
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
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]
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.