http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: KISHORI LAL

       Vs.

RESPONDENT: BIRDHI LAL & ORS.

DATE OF JUDGMENT10/03/1976

BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT RAY, A.N. (CJ) BEG, M. HAMEEDULLAH

CITATION:  1976 AIR 2011            1976 SCR  (3) 588  1976 SCC  (2) 239

ACT:      Constitution of India. Art. 226-Concurrent decisions of Revenue  authorities-Apparent   error  of  law-Whether  High Court’s interference justified.      Rajasthan Tenancy  Act,  1955,  S.  5  (44),  essential conditions, if  satisfied-  Rejection  of  alternative  case under s. 180.

HEADNOTE:      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 Act.      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]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

JUDGMENT:      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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

    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. 591