A jailis, who is not a tenant within the meaning of the Rajasthan Tenancy Act, 1955, cannot acquire khatedari rights under the Rajasthan Land Reforms and Resumption of Jagirs Act, 1963.

1. :- The ancestors of petitioners were said to be in possession of the land in dispute, as narrated in the present writ petition, which was a 'MUAFI LAND'. This land was resumed in July, 1963 under the provisions of Rajasthan Land Reforms and Resumption of Jagirs Act (hereinafter to be referred as Jagirs Act'). The petitioners sought declaration to the effect that on coming into force of Rajasthan Tenancy Act, 1955 (hereinafter to be referred as Tenancy Act') they had acquired khatedari rights. The copy of the plaint is attached as annexure-1. The private respondents had denied the rights of the petitioners and also filed a counter suit. The suit of the petitioners was dismissed by the SDO Iklera, whereas the suit of Murti Mandir was decreed holding that Murti Mandir Gokul Chandramajee were khatedar of the said land and the petitioners were in possession without any authority of law. The decree of possession in favour of Murti Mandir and against the petitioners was passed. Copies of the respective judgments are attached as annexure-5 & 6. The Revenue Appellate Authority, Kota vide judgment dated 13.1.79 dismissed the appeal, copy of which is attached as annexure-7. The appeal filed by petitioners before the Board of Revenue was also dismissed vide judgment dated 27.5.85 (Ann.8). Being aggrieved by the judgments annexure-5, 6, 7 and 8, the petitioners have approached this Court by filing the present writ petition.

2. It is the contention of the petitioners that muafi was resumed in July, 1963 and the petitioners being in cultivatory possession and for the reason that muafidar had never cultivated the land itself and that petitioners had been paying munafa in cash and the land being in their use and occupation, therefore, they fall under the definition of the 'tenant' under the provisions of Tenancy Act. It is further contended that the petitioners were paying munafa, which is defined as 'Rent' under Section 5(32) of the Tenancy Act. Thus they had become khatedar tenant by virtue of Section 15 of Tenancy Act. It is the further contention of petitioners that in no case the petitioners could be termed as trespasser and, therefore, no suit could have been filed against the petitioners under Section 183 of the Tenancy Act. It is further submitted that the possession of petitioners throughout had been the permissive as tenant of Muafidar, therefore, by virtue of Section 9 of Jagirs Act every tenant in a jagir land on the commencement of the Act would be known as a Khatedar tenant in respect of such land. With the abovesaid proposition of law, the petitioners are challenging the judgments and decree passed by the courts below.

3. Counsel for private respondents submitted that on the land of Deity which is prepetual minor, there was no question of creation of tenancy or sub-tenancy, and therefore, the petitioners had no right on the land.

4. All the authorities below including the Board of Revenue have held that the land in question was in the khatedari of Murti Mandir Chandramajee but was being cultivated by the petitioners with the permission and because of the reason that the Deity is perpetual minor, therefore, no rights of khatedari tenancy could accrue to any of the cultivator and at the most the petitioners could be termed as Jaili' and the Jaili had no right of tenancy.

5. It is the finding of the Board of Revenue in annexure-8 that on the basis of documentary evidence till muafi land was resumed, the names of petitioners were entered in Khasra No.97 measuring 16 bighas 15 biswas and khasra No. 876 measuring 36 bighas 9 biswas as jailis.

6. Under Section 9 of the Jagirs Act, every tenant in the Jagir land who at the time of commencement of the Act is entered in the revenue record as khatedar, pattedar, khademdar or under any description implying that the tenant has heritable and full transferable right in the tenancy shall continue to have such rights and shall be called as khatedar tenant in respect of such land, but the