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Shaitana Vs. the Rajasthan Board of Revenue and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Case No. 88 of 1955
Judge
Reported inAIR1958Raj164
ActsTenancy Law; Rajasthan (Protection of Tenants Ordinance), 1949 - Sections 7
AppellantShaitana
RespondentThe Rajasthan Board of Revenue and ors.
Appellant Advocate C.M. Mathur, Adv.
Respondent Advocate M.M. Tiwari, Adv. for Opposite Party No. 3
Cases ReferredMula v. Ganga Shai
Excerpt:
.....enforcement of a decree for ejectment is usually the same as is provided in order xxi rule 35 sub-rule 1) for decrees for delivery of any immovable property i. it may be pointed out that a joint tenant like sedhu, who is ejected has a remedy under the ordinary tenancy laws......rtlief under section 7 of the rajasthan (protection of tenants) ordinance, is available to a joint tenant who is not in exclusive possession of any particular portion of the land but is jointly in possession of the whole holding along with other joint tenants?'2. the brief facts which have led to this reference, may be given here. sedhu, who is opposite party in this court, filed an application under section 7 of the rajasthan (protection of tenants) ordinance (no. ix of 1949) hereinafter called the ordinance.) his case as found by the board was that he, along with shaitana who is the applicant in this court, were co-tenants of certain holdings and his share was half. shaitana dispossesed sedhu and in consequence sedhu applied for reinstatement under section 7. the application was.....
Judgment:

K.N. Wanchoo, C.J.

1. The following question has been referred to this Full Bench for decision, viz. :

'Whether rtlief under Section 7 of the Rajasthan (Protection of Tenants) Ordinance, is available to a joint tenant who is not in exclusive possession of any particular portion of the land but is jointly in possession of the whole holding along with other joint tenants?'

2. The brief facts which have led to this reference, may be given here. Sedhu, who is opposite party in this court, filed an application under Section 7 of the Rajasthan (Protection of Tenants) Ordinance (No. IX of 1949) hereinafter called the Ordinance.) His case as found by the Board was that he, along with Shaitana who is the applicant in this court, were co-tenants of certain holdings and his share was half. Shaitana dispossesed Sedhu and in consequence Sedhu applied for reinstatement under Section 7. The application was opposed by Shaitana and two main points were urged on his behalf.

(1) That the application had not been made within three months and was therefore barred by limitation, as provided under Section 7.

(2) As Sedhu and Shaitana were joint tenants and the dispossession of Sedhu was by his joint tenant Shaitana, it was not open to one joint tenant to apply for reinstatement against another joint tenant under Section 7 of the Ordinance.

3. The application was dismissed by the Sub-Divisional Officer. Then there was a revision to the Board of Revenue and that revision was allowed. It was held by the Board that as Sedhu and Shaitana were joint tenants, there was no question of limitation as the possession of one joint tenant was on behalf of the entire body of tenants. The Board further held that in view of certain decisions which had been already given by it, it was open to one joint tenant to apply under Section 7 against another joint tenant who had dispossessed him. The present appli-cation was thereupon filed in this court and the main contention of the applicant, Shaitana, is that Section 7 does not apply to a case where one joint tenant is actually dispossessed by another joint tenant.

4. The question whether Section 7 of the Ordinance applies to a case of this kind will have to be decided on a consideration of the terms of that section. Sub-section (1) provides that any tenant who has been ejectedor dispossessed may apply within the period of three months already mentioned for reinstatement on the holding or part of it from which he has been ejected. Now, Sedhu was certainly a tenant within the meaning of Sub-section (1), for he was holder of half share, as decided by the Board of Revenue. He would thus be competent to apply under Section 7 as a tenant provided any relief could be given to him. But if no relief was contemplated for such an applicant under Section 7, it would, in our opinion, be proper to hold that though a person like Sedhu was covered by the word tenant, he could not apply for relief under that section,

5. This brings us to Sub-section (2) which provides for a summary enquiry and the Sub Divisional Officer is enjoined, after such enquiry, to order that the applicant be reinstated in such holding or part thereof and that any other person in possession of it be ejected therefrom. It is clear beyond doubt that what the Sub-Divisional Officer has to do is to order the reinstatement of the person applying and at the same time, to order ejectment of the person who may be in possession of the holding or part thereof and who was presumably responsible for the dispossession of the applicant. Sub-section (3) is immaterial for present purposes. But Sub-section (4) is, in our opinion, very important. It lays down that an order for re-instatement shall be enforced as nearly as may be in the same manner as if it were a decree for ejectment but regard shall not be had to the time, if any prescribed for the enforcement of such decree. Now it is well known that the procedure for enforcement of a decree for ejectment is usually the same as is provided in Order XXI Rule 35 Sub-rule 1) for decrees for delivery of any immovable property i. e. that the person ejected is actually dispossessed from the property and the person in whose favour the decree is p ssed is put in actual possession of the property. Sub-rule (2) of Rule 35 on which learned counsel for Sedhu seems to rely, has, in our opinion, nothing to do with enforcement of a decree for ejectment. It applies only to cases of decrees for joint possession which are different from decrees for ejectment. We do not think it necessary in this connection to refer to the provisions of the various Tenancy Acts in force in the various Covenanting States. It is enough for our purposes to refer to Section 185 of the Rajasthan Tenancy Act as illustrative of what we have said. We know that the Rajasthan Tenancy Act, 1955 does not in fact apply to the present case, for it came into force on the 15th October 1955. But we have no doubt that the Tenancy Acts of former Covenanting States had similar provisions in that respect. Section 185 of the Rajasthan Tenancy Act provides the mode for execution of decrees for ejectment, namely that they shall be enforced in accordance with the provisions of the Code of Civil Procedure relating to the execution of decrees for delivery of immovable property. Therefore when Sub-section (4) of Section 7 of the Ordinance provides that an order for re-instaternent shall be enforced as nearly as may be in the same manner as if it were a decree for ejectment, there is clear direction that the person re-instated shall be put back in possession and the person, who has dispossessed him of the land, shall in his turn be dispossessed. This can be done at any time and the restriction which the revenue laws placed as to the time for execution of decrees for ejectment, does not apply to a case under Sub-section (4). Thus, it is clear on a reading of Sub-sections (1), (2) and (4) of Section 7 that though a tenant may have a right to apply under Sub-section (1), the relief contemplated under sub s. (2) is that the person applying under sub s. (1) is put back in actual possession and the person who has dispossessed him is actually ejected. This being the relief contemplated under Section 7, it is to our rnind absolutely clear that this section does not contemplate cases where one co-tenant is ejected by another co-tenant. Insuch a case, there can be no relief as contemplated by Section 7, for the applying co-tenant cannot be put back in possession and the co-tenant who has dis-possessed him cannot be ejected from the holding or any part thereof. It follows, therefore, that Section 7 applies to those cases where a tenant is in exclusive possession of certain holding or certain part of it and is ejected from that part If the Sub-Divisional Officer can put him back in exclusive possession o the holding or part thereof from which he has been ejected, Section 7 will apply and come to the help of such a tenant. But if the co-tenant who has been dispossessed and the co-tenant who has dispossessed him and has, let us say, usurped the possession of the entire holding are joint tenants of every part of the holding, it is not possible for the Sub Divisional Officer to eject a co-tenant who has dispossessed other co-tenant from any part of it because both are entitled to possession over every part o the holding until their holding is partitioned. Therefore, howsoever we look at the matter, Sub-sections (2) and (4) of Section 7 make it absolutely clear that relief under Section 7 cannot be given to a co-tenant ejected by another co-tenant from the holding or part thereof, where both are joint tenants with a right to possession over every part of the holding.

6. Our attention in this connection was drawn to a number of decisions of the Board of Revenue. The earliest decision on the point was Dalla v. Nanu, 1952 Raj L W 62 (Rev Sup) (A). In that case the learned Member observed at the end of the judgment that if tenants who were cultivating parts of holding held jointly with co-sharers were to be debarred from asking for reinstatement any person cultivating a part of holding would eject another tenant cultivating another part of the same holding and would thus defeat the purpose of this Ordinance. We may point out that that case came before the Board in execution proceedings. There had already been an order for reinstatement of Nanu who had been rejected by his brother Dalla. The order for re-iu-statement had been passed on a compromise between Nanu and Dalla and that order was carried out by the Sub-Divisional Officer by giving not joint possession but certain specific area to Nanu. The order was upheld by the Board of Revenue and these observations, as we have said before, were made at the end of the order. All that we need say is that these observations were not necessary for decision of that case and the learned Member did not really analyse Section 7 of the Ordinance. There are four other cases to which, however, we need not refer in detail because it is the observations in Dal'a's case (A) which have been taken to lay down the law in those cases.

7. As against this, another Member of the Board of Revenue held in Mula v. Ganga Shai, 1955 Raj L W 27 (Rev Sup) (B) that where one of the tenants is ejected by his co-tenants, the remedy would lie in a suit lor division of holding or rendition of account and not in an application for recovery of possession under the Ordinance. The learned Member did not give any reasons for that conclusion But for reasons that we have given, that is the sounder view. It may be pointed out that a joint tenant like Sedhu, who is ejected has a remedy under the ordinary tenancy laws. Here again, without referring to the provisions of the earlier laws on the subject, we may refer to the Rajasthan Tenancy Act. 1955. Such a tenant can, in our opinion, file a suit under serial Nos. 3 and 5 of part I--Suits--of the third sehedule of the Rajas-than Tenancy Act. We have no doubt that he had similar rights earlier also. Our answer, therefore, to the question put to us is this : 'No relief under Section 7 of the Rajasthan (Protection of Tenants) Ordinance is available to a joint tenant who is not in exclusive possession of any particular portion ot the land, but is jointly in possession of the whole holding alongwith other joint tenants'. Let this answer be placed before the Bench concerned.


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