Shikmi tenants who have been in possession of the land prior to the crucial date of December 31, 1969, are entitled to the declaration of khatedari rights under Section 19 of the Rajasthan Tenancy Act, 1955.

1. - By this writ petition, a challenge is made to the order of Additional Collector, Revenue Appellate Authority and Board of Revenue. All the three orders are against the petitioners and having concurrent finding of facts. It was on a suit preferred by the respondents to seek declaration under Section 19 of Rajasthan Tenancy Act, 1955 (in short "Act, 1955").

2. Learned counsel submits that the petitioners were khatedar of the land and their names exist in the revenue record. The respondents filed a suit claiming themselves to be khatedar and possession of the land in dispute. It was nowhere mentioned that they are shikmi tenant in the land thus entitled to the benefit under the Act, 1955. The courts below failed to consider that in absence of claim to cover it under Section 19 of the Act, 1955, the declaration could not have been made. The plea taken by the petitioners was even in contradiction inasmuch as they were claiming rights as shikmi tenant and at the same time, claim was made based on permissive possession. A claim for adverse possession is in contrast to the declaration sought under Section 19 by considering themselves to be shikmi tenant. The aforesaid was also ignored by the court below.

3. Lastly, it is contended that no evidence was led by the respondents to show as to how they became shikmi tenant. In absence of it, the court should have taken cognizance of the revenue record where names of petitioners exist. It is apart from the fact that even as per statement of the respondents, they came in the possession somewhere in the year 1961, whereas to seek benefit under Section 19 of the Act, 1955, the possession should have been prior to the year 1955.

4. Learned counsel for respondents, on the other hand, submits that while filing suit, facts regarding possession as well as their status was mentioned though it was referred to be khatedar but then clarified in reference to record where the respondents were mentioned as "shikmi" tenant for last 24 years. The pleading was supported by the documents where the respondents were recorded as shikmi tenant. Thus it is not correct to state that without pleading or showing status as shikmi tenant, the declaration was made in favour of the respondents. He further states that claim was maintainable under Section 19 of the Act, 1955 as the respondents were sub-tennat and thereby declaration made by the first revenue court was proper and upheld by the two appellate revenue courts with concurrent finding of facts.

5. This court while exercising jurisdiction under Article 226 & 227 of the Constitution of India would be having limited jurisdiction. In view of the above, the interference in the impugned order may not be caused. It is submitted that based on the possession, if the petitioners are having more than one right than it can be claimed in alternative and cannot be taken to be in contradiction. The respondents having possession of land for last 24 years and that too permissive possession, was entitled to seek benefit of adverse possession thus alternative prayer was not in contradiction to the prayer in the plaint. It is also contended that possession of the land as sub-tenant, tenant, etc. should have been on or before 31.12.1969. The respondents produced the documents to show possession since 1961 i.e. much prior to crucial date given under the Act, 1955. In view of the above, declaration made in favour of the respondents was after taking proper interpretation of law.

6. It is also stated that the petitioners failed to prove their case as no evidence was led to demolish the case of the respondents. The provisions of the Act, 1955 permit khatedari rights in favour of those, who were in possession of the land in the capacity of tenant or subtenant, etc. The respondents being sub-tenant were rightly declared to be khatedar by operation of law.

7. I have considered the rival submissions made by the parties and perused the record.

8. I find that all the three orders of reven