This second appeal has been filed against the order of the learned Revenue Appellate Authority, Kota, rejecting the appeal of the defendant appellant against the judgment and decree of the Asstt. Collector, Dholpur, dated 15.5.63, whereby the learned Asstt. Collector had decreed the suit of the plaintiff-respondent for the ejectment of the defendant-appellant from Khasra Nos/ 1952/2 and 197 in village Seroli.

It was alleged by the plaintiff-respondent that one Gokul was the Bandobasti tenant of the aforesaid Khasra Numbers. He died in Smt. year 2015 leaving behind the plaintiff-respondent who was the uncle of the deceased to succeed to his estate. In due course of time, mutation was also effected in his favour. The defendant had, however, forcibly taken possession of the disputed fields. It was, therefore, prayed that he should be ejected.

In reply, the defendant stated that he had been in the cultivatory possession of the fields as sub-tenant of Gokul who being an old man was not in a position to cultivate the field personally since Smt. year 2014. After framing the necessary issues and recording evidence, the trial court came to the conclusion that according to the revenue records, the plaintiff-respondent was the Khatedar tenant of the disputed fields. It also held that the defendant was entered as a sub-tenant in respect of the disputed lands in Smt. years 2014, 2015 and 2016, having been admitted into the land by Gokul deceased a sub-tenant. As Gokul died in Smt. year 2015, the tenancy had come to an end in Smt. year 2017 under sec. 46(2) of the Rajasthan Tenancy Act. Since the plaintiff had never sub-let the land to the tenant nor had he accepted rent, it followed the plaintiff had not acknowledged the subsistence of the sub-tenancy and the tenancy rights of the defendant therein stood extinguished in Smt. year 2017. He was, therefore, held to be a trespasser and the suit was decreed in favour of the plaintiff.

Having felt aggrieved by this order, the defendant-appellant filed an appeal before the learned Revenue Appellate Authority. The appellant attacked the order of the trial Court,on the ground that the plaintiff had not been able to establish that he was the successor of Gokul. He also contended that in a previous suit which had been dismissed the question of the succession of Gokul had been raised and the same could not be reagitated. It was also asserted that the mutation proceedings were not binding on the defendant appellant. It was, further, averred that the defendant-appellant having been admitted as a sub-tenant, he could not be held to be a trespasser under sec. 46(2) of the Rajasthan Tenancy Act. The learned Revenue Appellate Authority repelled the contentions raised by the appellant on the ground that the land had been mutated in favour of the plaintiff after the demise of Gokul. It was open to the defendant-appellant to have the same set aside by due process of law if he seriously contended the mutation order. The land stood in the Khatedari of the plaintiff at present and so long as this was the position the onus to establish his rival claim heavily rested on the defendant-appellant. The previous suit referred to by the defendant-appellant in which the question of succession is alleged to have been raised was not dismissed on mentis and, therefore, the plea of res judicata could not be raised by the defendant-appellant in this case. The previous Khatedar Gokul had leased the land to the defendant in Smt. year 2014. Gokuls death in Smt. year 2015 was not disputed. Under the circumstances sec. 46(2) of the Rajasthan Tenancy Act would come into play and the rights of the lessee would stand extinguished after the lapse of two years from the demise of Gokul. Under the circumstances, the learned Revenue Appellate Authority rejected the appeal.

Having felt aggrieved by this order, the defendant-appellant has come up in second appeal. A second appeal against the concurrent finding of fact is admissible only on legal

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