JUDGMENT

1. By way of this appeal, the appellants have assailed the judgment and order of the learned Single Judge dt. 12.2.2008 whereby learned Single Judge has dismissed the writ petition which has been filed against the order of Board of Revenue and confirmed the order of the authorities.

2. Counsel for the appellants has raised following contentions which reads as under:-

2.1 The provisions relevant for decision of this case are Section 15 and 19 of Rajasthan Tenancy Act. Relevant portions of which are quoted below:-

Section 19 - Conferment or rights on certain tenants of Khudkasht and sub-tenants:-(1) Every person who, at the commencement of this Act,-

(a) was entered in the annual registers then current as a tenant of Khudkasht or subtenant of land other than gove land, or

(b) was not so entered but was a tenant of khudkasht or sub-tenant of land, other than grove land, shall, as from the date of commencement of the Rajasthan Tenancy (Amendment) Act, 1959, hereinafter in this Chapter referred to as the appointed date, become, subject to the other provisions contained in this chapter, the khatedar tenant of such part of the land held by him.

Section 15- Khatedar tenants

1. Subject to the provisions of Section 16 and clause (d) of sub-section (1) of section 180- Every person who, at the commencement of this Act, is a tenant of land otherwise than as a sub-tenant or a tenant of Khud Kasht or who is after the commencement of this Act admitted as a tenant otherwise then as a sub-tenant or a tenant Khud Kasht or an allottee ...

Thus under Section 15 persons who are recorded as tenants at the time Rajasthan Tenancy Act came into force (15.10.1955) and persons who are admitted as tenants after commencement of the Act are recognized as khatedar tenants. Sub-tenants are specifically excluded.

Section 5(43)- Tenant shall mean the person by whom rent is, or, but for a contract, express or implied would be payable.

2.2 Plaintiffs Pratap and Panchu filed a suit for declaration of khatedari rights and permanent injunction in 1967 in respect of 27 Bighas land of Khasra No.113 to 118 and 165 (Old Numbers 72-78 and 133). It was inter-alia stated in para 2 that they are cultivating the land for long and paying land revenue. In para 3 it was stated that for this reason they are khatedar of the land. In para 4 it was stated that they are in cultivatory possession. In para 5 it was stated that the defendant no.1 is recorded as khatedar of the land which they came to know from Patwari. In para 7 it was mentioned that the defendants have been wrongly entered as khatedars in conspiracy with the officers. In para 8 it was stated that the defendant no.1 has sold the land to defendant no.2 and 3 by registered sale deed.

Thus it is clear that it was never pleaded (1) that the plaintiffs are recorded khatedars on the date the Tenancy Act came into force or that they have been admitted as tenant after coming into force of the Act. (2) It was also never pleaded that they are sub-tenants of defendant no.1.

2.3 In the written statement it was inter-alia stated that the plaintiffs were never kept as sub-tenants. Rather it was stated that the defendant no.1 has been getting the land cultivated through defendant no.2 - Ram Pratap by keeping 'Hali' (servants).

It was stated that defendant no.1 was khatedar and he wanted to sell the land and has actually sold to defendant no.2 by registered sale deed dated 01.03.1967. It was stated in para 6 that the plaintiffs came to defendant no.1 to purchase the land for Rs.4,000 but since they offered much less amount the land was sold to defendant no.2 & 3. Annoyed of it they have filed the suit. The plaintiffs also gave notice through their advocate by registered post (inland letter) on 25.01.1967 to defendant no.1 stating that there was agreement between the plaintiff and defendant was called upon to execute the sale deed. (The notice has been proved by the advocate Shri R.P. Gupta who was summoned in evidence).

2.4 On