The main legal point established in the judgment is the need for appropriate proceedings to determine the occurrence of the contingencies under Section 63 of the Rajasthan Tenancy Act before taking action to evict a person. The court emphasized the importance of examining the evidence and credibility of the objector's evidence and clarified the legal principles related to the procedure for taking possession of the holdings when the tenant's rights are considered to have been extinguished under Section 63.

Headnote:
MIGRATION - TENANCY RIGHTS - Rajasthan Tenancy Act, 1955, Section 3/6, Section 63, Section 64 - The court discussed the provisions of Section 63 and Section 64 of the Rajasthan Tenancy Act, which envisage the circumstances in which the interest of a tenant in his holding is extinguished and the consequences of such extinguishment. The court also examined the legal principles related to the procedure for taking possession of the holdings when the tenant's rights are considered to have been extinguished under Section 63. The court emphasized the need for appropriate proceedings to determine the occurrence of the contingencies under Section 63 before taking action to evict a person. The court also analyzed the meaning of 'migration' and the legal fiction created under the Explanation to Section 63(1)(viii), which presumes that a tenant who moves to a foreign country without a valid passport or lawful authority shall be deemed to have migrated from India to a foreign country. The court clarified that the Explanation provides a rule of evidence to raise a rebuttable presumption against the holder, and the burden of proof can be shifted to the tenant to prove that the movement was not migration. The court highlighted the importance of examining the evidence and credibility of the objector's evidence before taking action to evict a person on the ground of the contingency under Section 63(1)(viii). The court set aside the previous orders and directed the Tehsildar to decide the appeal afresh in the light of the material on record and the observations made.
Fact of the Case:

The appellant Abdul alias Abud was prosecuted for crossing the Indian border without a valid passport. Subsequently, proceedings were initiated against him under Section 63(1)(viii) of the Rajasthan Tenancy Act for recovery of possession of land. The authorities found that the appellant had crossed the Indian border to Pakistan without a valid passport, leading to the extinguishment of his tenancy rights.
Finding of the Court:

The court found that the authorities had not considered the meaning of 'migration' and the effect of the legal fiction created under the Explanation to Section 63(1)(viii) in the right perspective. The court emphasized the need to examine the evidence and credibility of the objector's evidence before taking action to evict a person on the ground of the contingency under Section 63(1)(viii). The court set aside the previous orders and directed the Tehsildar to decide the appeal afresh in the light of the material on record and the observations made.
Issues: The issues involved in the case included the interpretation of the provisions of Section 63 and Section 64 of the Rajasthan Tenancy Act, the meaning of 'migration' under the Explanation to Section 63(1)(viii), and the requirement to examine the evidence and credibility of the objector's evidence before taking action to evict a person on the ground of the contingency under Section 63(1)(viii).
Ratio Decidendi: The court emphasized the need for appropriate proceedings to determine the occurrence of the contingencies under Section 63 before taking action to evict a person. The court clarified that the Explanation to Section 63(1)(viii) provides a rule of evidence to raise a rebuttable presumption against the holder, and the burden of proof can be shifted to the tenant to prove that the movement was not migration. The court highlighted the importance of examining the evidence and credibility of the objector's evidence before taking action to evict a person on the ground of the contingency under Section 63(1)(viii).
Final Decision: The appeal was allowed, the judgment under appeal was set aside, and the writ petition was allowed. The judgments of the Board of Revenue, the Collector, and the Tehsildar were quashed. The Tehsildar was directed to decide the appeal afresh in the light of the material on record and the observations made above within three months.

JUDGMENT

1. Heard learned counsel for the parties.

2. As the matter can be decided without preparation of paper- book and filing of initial charges and list of documents, therefore, the same are dispensed with and the matter is heard on merits at the request of learned counsel for the parties.

3. The appellant/petitioner Abdul alias Abud, since deceased, was prosecuted in the Court of Munsif and Judicial Magistrate, Ist Class, Barmer under Section 3/6 of the Indian Pass-port Rules on 10.2.81 inter alias on the allegation that accused Abut along with one other person was caught by the patrolling guard/Officers at the Pakistan check post because they were crossing the Indian Border and they were not having valid passports. The accused has stated in his statement that in fact he was going to meet his sister through the way which was passing near the Border and he was wrongly caught. However, this plea was not accepted and he was convicted for the aforesaid offence.

4. After this order of conviction was passed, proceedings were initiated against the petitioner under Section 63 (1) (viii) of the Rajasthan Tenancy Act for recovery of possession of land from the petitioner/appellant. It was recorded that Abut or Abdul are one and same person who is son of Mewa, resident of village Punjasar. This was verified by the Patwari of the region. In his defence, he denied having ever gone to Pakistan and also took the plea that on the relevant date in question, he has gone to meet his sister and while returning from the way which was passing near Pakistan Border, a person of BSF apprehended him. The plea taken by the appellant is exactly similar to the plea which was taken during defence before the criminal Court. This makes it sure that accused,Abul and the appellant Abdul are one and the same person and this fact was further corroborated from the statement of Suwana and the Patwari of the region. In fact, it was not a case where at any time it was urged by the petitioner/appellant that he was not accused in the aforesaid criminal case in the Court of Munsif and Judicial Magistrate. On the aforesaid material available on record, the Tehsildar-Choutan found that petitioner/appellant has crossed the Indian Border to Pakistan without' having valid passport and, therefore, his khatedari rights are extinguished on terms of Section 63 of the Rajasthan Tenancy Act, 1955. This order was made on 7-9-94.

5. The appeal filed by the father of petitioner was dismissed by the Revenue Appellate Authority vide order dated 18-4-95 agreeing with the finding of Tehsildar and thereafter same was affirmed by the Board of Revenue in revision vide its order dated 20-3-98. The contention of petitioner/appellant that he never went to Pakistan was not accepted by the Board of Revenue and in view of statutory provisions, the order passed by Tehsildar was affirmed, which resulted in filing the writ petition before this Court, which too was dismissed by learned Single Judge vide order dated 18-8-2000.

6. Having perused the order under appeal we are of the view that the order passed by learned Single Judge does not give clear picture of the controversy raised in the writ petition. However, this alone is not sufficient to allow the appeal and writ petition without considering the question on merit of the petitioner's contention.

7. The first contention raised by the petitioner is about the divergence in the name between the person shown as accused person in criminal case referred to above and the petitioner's name already noted above. This has been found by all the Courts below that Abut and Abdul are one and the same person. Moreover it was not the contention of petitioner that he is not Abut. What was his case, was that he has never visited Pakistan; in fact he was returning from his sister's house when BSF personnel apprehended him. Copy of the order passed in criminal case by Munsif and Judicial Magistrate shows exactly the same defence taken by appellant Abdul in that cas

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2003 Supreme(Raj) 1426

RAJASTHAN HIGH COURTRajesh Balia, Prakash Tatia, JJ.Legal Heirs of Abdul - AppellantVersusState of Rajasthan and others - RespondentC.S.A. No. 879 of 2000.Decided On : 3-09-2003

RAJASTHAN HIGH COURT
Rajesh Balia, Prakash Tatia, JJ.
Legal Heirs of Abdul - Appellant
Versus
State of Rajasthan and others - Respondent
C.S.A. No. 879 of 2000.
Decided On : 3-09-2003