1. This is an application by two persons Jhunta and Mahadev under Article 226 of the Constitution of India.
2. The facts leading to this application are that on 10-8-1950, opposite party 2 Balu and his sou No. 3 Ram Nath presented an application under Section 7, Rajasthan (protection of Tenants) Ordinance, 1949 before the Anti Ejectment Officer, i.e., the Assistant Collector Sawai Jaipur. It was alleged by them that petitioner 2 in this case Maha-deva was a 'khatedar' tenant of sixteen fields in the village Talpatti, Tehsil Sawai Jaipur, that out of those sixteen 'khasra' Numbers, five fields numbering 77, 127, 129, 289 and 292 were in their sole cultivatory possession as sub-tenants from the 'Smt. Year 1997, while in the remaining eleven fields numbering 31, 290, 291, 294, 296, 297, 300, 426, 441, 442 and 443 they were co-tenants of petitioner 1 Jhunta, that with the assistance of the petitioners Jhunta and Mahadeva, four persons namely Lalu, Mahadeva, Govinda and Kana had dispossessed them from the fields and, therefore, their possession should be re-instated.
That application was dismissed by the Assistant Collector on 15-10-1951 on the ground that it was not a dispute between landlord and tenant but between tenant and tenant inter se and therefore, Section 7, Rajasthan (Protection of Tenants) Ordinance, 1949, was not applicable to the case. Balu and Ram Nath then went in revision against this order to the Board of Revenue for Rajasthan, Jaipur. On 17-3-1952, the Board of Revenue allowed the revision petition. It was held by that tribunal that from the entries in the land records and the statement of the Patwari, the applicants were found to be in sole possession of the 'khasra' Numbers 77, 127, 129, 289 and 292, and that they were entitled to remain in possession of them. As regards the remaining 'khasra' Numbers, it was decided that Mahadeva who was their 'khatedar' tenant had sub-let them to the applicant Jhunta who had taken Balu as partner in cultivating the land and that since he was neither a co-tenant nor a sub-tenant, he could not ask for reinstatement. It is against this decision of the Revenue Board that the present application has been filed by Jhunta and Mahadeva.
3. The first contention raised by the petitioners' learned advocate before us is that the Rajasthan (Protection of Tenants) Ordinance, 1949, was promulgated with a view to put a check on the growing tendency of land holders to eject or dispossess tenants from their holdings that in the present case the dispute was really one between tenants inter se and not between a land holder and a tenant as found by the Assistant Collector, that the said Ordinance- was therefore not applicable to the present case and the Board of Revenue had exceeded its jurisdiction by assuming powers which were not given to it under the said Ordinance. It is prayed that a writ of 'certiorari' should be issued and the above mentioned judgment of the Revenue Board dated 17-3-1952 should be quashed.
4. The Board of Revenue has neither filed any reply nor anybody has put in appearance in this matter on its behalf.
5. Opposite Parties 2 and 3, however, have filed their reply. It has been urged by their learned advocate before us that the facts stated by the petitioners are not correct, that so far as the five fields numbering 77, 127, 129, 289 and 292 are concerned, opposite parties 2 and 3 were the only sub-tenants of Mahadeva, that they were in the sole cultivatory possession of those fields, that there was no question of a dispute between tenants inter se, that it was the 'khatedar' tenant Mahadeva who in collaboration with Jhunta had dispossessed them, that this case was therefore, certainly covered by the Rajasthan (Protection of Tenants) Ordinance, 1949 that the Board of Revenue had perfect jurisdiction to decide the revision application under Section 10 of the said Ordinance and its decision being correct, an application for writ did not lie.
6. It is clear from the certified copies of the judgments of the Sub-Divisional Officer and the Board of Revenue filed by the applicant that the Sub-Divisional officer had dismissed the application of opposite parties 2 & 3 on the ground that the dispute between them and the opponents was a dispute between tenants inter se but the Board of Revenue did not find that fact to be correct, so far as five fields were concerned. Regarding the remaining fields it upheld the decision of the Sub-Divisional Officer and dismissed the revision application. The first question which therefore, confronts us is, whether the application for a writ of 'certiorari' is maintainable. In -- 'Mohsinali Mahomedali v. State of Bombay', AIR 1951 Bom 303 (A), the scope of writ of 'certiorari' was very concisely and precisely if we may say so, with respect laid down by their Lordships in the following words:
'The jurisdiction that the High Court exercises when it issues the high prerogative writ of 'certiorari' is a limited jurisdiction. Thus, when any Court has been empowered to determine certain questions and jurisdiction has been conferred upon it to determine those questions, then the determination by the Court of those questions, however, erroneous in fact or in law, cannot call into question the jurisdiction of the High Court under its high prerogative of issuing a writ of 'certiorari'. To this principle there are two exceptions; the first is that the superior Court will interfere when an error of law is patent on the face of record; and the second is that the determination is arrived at 'mala fide' in which case it will not be a determination at all and fraud or 'mala fides' will vitiate any decision however arrived at.'
7. In -- 'Veerappa Filial v. Raman and Raman Ltd.', AIR 1952 SC 192 (B). it was observed by their Lordships of the Supreme Court that
'Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However excessive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made.'
8. It is evident from these observations that in determining aa application for a writ of 'certiorari' it is not the function of this Court to sit in appeal on the judgments of the tribunals in the cases which those tribunals had jurisdiction to decide. What we have to see before issuing a writ of 'certiorari' is
1. if the tribunal has acted wholly without jurisdiction or in excess of it, or,
2. it has failed to exercise jurisdiction vested in it, or,
3. it has acted in violation of the principles of natural justice, or,
4. whether there is a patent error of law on the face of the record which has resulted in manifest injustice or,
5. the determination of the tribunal is 'mala fide'.
9. In the present case, the Revenue Board had jurisdiction to hear and decide the revision application before it under Section 10, Rajasthan (Protection of Tenants) Ordinance, 1949. The only ground on which the Sub-Divisional Officer had dismissed Ram Nath and Balu's application was a dispute between tenants 'inter se'. The Revenue Board decided, this question otherwise and according to its finding, the applicants before it were the only sub-tenants and there was no question of dispute between sub-tenants 'inter se'. The tribunal had jurisdiction to decide the point and it cannot be said that in doing so it has exceeded its jurisdiction.
10. It is next contended by the applicants' learned advocate that the 'khatedar' tenant Mahadeva from whom Ram Nath and Balu claimed their sub-tenancy had no hand in dispossessing them and if a trespasser had dispossessed them, the Rajasthan (Protection of Tenants) Ordinance, 1949 did not apply because Section 12 provided a specific bar in that matter. Section 12, Rajasthan (Protection of Tenants) Ordinance, 1949 runs as follows:
'Nothing in this Ordinance shall apply to a trespasser or to a tenant who had been dispossessed of his holding or a part thereof for the reason that the land has been acquired by the Government for any public purpose.'
11. It is apparent from the language of the section that it is only a trespasser who is dis-possessed of his holding that is precluded from taking recourse under this law. It does not mean that if a tenant is dispossessed by a trespasser at the instance of the land holder, the Ordinance I would not apply. If the view propounded by the I applicants' learned advocate be allowed, it would mean that the land holder would be able to dispossess their tenants by instigating third persons and in that case the whole object of this Ordinance would be defeated.
12. The applicants' learned advocate has filed a certified copy of Balu and Ram Nath's application dated 10-8-1950 before the Anti Ejectment Officer to show that from their own application, it appeared to be a dispute between tenants 'inter se', that Mahadeva had no hand in the matter and the decision arrived at by the Board of Revenue proceeded on an error apparent on the face of the record. This contention is also not borne out from the perusal of the application because in para. 6 thereof, it was specifically stated that opposite parties 1 to 4 namely Lalu, Mahadeva, Govinda and Kana had forcibly dispossessed the applicants Ram Nath and Balu with the aid of opposite party 5 Jhunta and No. 6 Mahadeva.
The learned advocate for the opposite party has produced a certified copy of the written statement filed by Mahadeva before the Anti Ejectment Officer dated 28-4-1951 and it further shows that Mahadeva was backing Jhunta in dispossessing Balu and Ram Nath. He had not only contested their application but also stated in clear words that he himself wanted to cultivate the land. This leaves no doubt that it was in fact Mahadeva the tenant who had dispossessed the sub-tenant Balu and Ram Nath. since Jhunta was cultivating other fields with Balu, Mahadeva tried to use his agency to dispossess Balu and Ram Nath and show that the dispute about the said five fields was dispute between tenants inter se. This contention of the applicants' learned advocate, therefore, fails.
13. The last objection raised by the petitioners' learned advocate was that according to Sub-section (2) of Section 7, Rajasthan (Protection of Tenants) Ordinance, 1949, it was necessary that a notice should have been given to the land holder i.e., the Jagirdar of Thikana Lawan, Tehsil Dausa and since it was not done the opposite party No. 1 had 'acted illegally and without jurisdiction in not applying the provisions.' Opposite parties 2 and 3 have controverted this allegation as well and Ram Nath has filed an affidavit to the effect that the first Court had sent notice to the land holder i.e., the Jagirdar of Thikana Lawan, Tehsil Dausa that it was duly served on his accredited representative, the Vakil of Thikana Lawan and that the land holder had no interest in the case and he did not send his representatives to contest the application. The petitioner has not cared to contradict this affidavit with reference to any certified copy of the proceedings of the Assistant Collector, and, therefore, there is no reason to disbelieve Ram Nath's affidavit. This contention also, therefore, must fail.
14. In the writ petition the applicants had alsochallenged the validity of the Rajasthan (Protection of Tenants) Ordinance 1949, but that pointwas not pressed at the time of arguments and,therefore, we need not go into that question. Wedo not find any good reason to interfere with thedecision of the Revenue Board and, therefore, theapplication is dismissed with costs.