Civil Appeal No 1436 of 1975
Appeal by special leave from the Judgment and order dated 10 3 1975 of the Rajasthan High Court in D B Civil Writ Petition No 384 of 1968
Ahmed Bux Beni Madhav Sharma Ms VJ Francis  RA Gupta Advocates for the appellants
SM Jain  Sushil Kumar Jain Advocates for respondent No 1
The Judgment of the Court was delivered by JASWANT SINGHJ
This appeal by special leave is directed against the judgment dated March 10 1975 of the High Court of Rajasthan at Jodhpur passed in Civil Writ Petition No 384 of 1968
The facts leading to this appeal are On July 1 1961 Kishori Lal the appellant herein brought a suit in the court of the Assistant Collector Baran against Birdhi Lal respondent No 1 for possession of land comprised in khasra Nos 513 669 and 678 situate in village Balakhera of Anta Tehsil of Kota District under sections 180 and 183 of the Rajasthan Tenancy Act 1955 hereinafter referred to as the Act
By his judgment dated December 24 1962 the 589 Assistant Collector dismissed the suit
The appellant thereupon preferred an appeal to the Revenue Appellate Authority who allowed the same by his judgment dated November 9 1963 and reversing the judgment of the Assistant Collector decreed the suit holding that Birdhi Lal was a trespasser
Aggrieved by the judgment and decree of the Revenue Appellate Authority Birdhi Lal took the matter in further appeal to the Board of Revenue Rajasthan but remained unsuccessful as the members of the Board affirmed the view taken by the Revenue Appellate Authority
Dissatisfied with the decisions of the Revenue Appellate Authority and the Board of Revenue Rajasthan Birdhi Lal approached the High Court of Rajasthan by means of a petition under Article 226 of the Constitution
The High Court by its aforesaid judgment and order dated March 10 1975 allowed the petition and held that Birdhi Lal being a tenant within the meaning of section 543 of the Act and not a trespasser as conceived by section 544 of the Act was not liable to be ejected from the land
Dissatisfied with this judgment Kishori Lal has come up this Court
The learned counsel for the appellant has while supporting the appeal vehemently tried to press upon us that as the High Court has exercised appellate jurisdiction and substituted its own opinion for the opinion of the Revenue authorities contrary to the well established principles of law the impugned judgment cannot be sustained
Elaborating his submission the learned counsel has submitted that since both the Revenue Appellate Authority and the Board of Revenue had concurrently held that Birdhi Lal was a trespasser and there was no error apparent on the face of the record the High Court was not justified in interfering with the aforesaid decisions of the Revenue Appellate Authority and the Board of Revenue
The contention advanced on behalf of the appellant is in our opinion wholly untenable
The expression trespasser  is defined in section 544 of the Act as follows 544
Trespasser shall mean a person who takes or retains possession of land without authority or who prevents another person from occupying land duly let out to him
The above definition makes it clear that in order to be able to succeed in his suit Kishori Lal had to show that Birdhi Lal had taken or retained possession of the land without authority or that he had prevented him from occupying the land duly let out to him
In the instant case there was no allegation by the appellant in his plaint that he was prevented by Birdhi Lal from occupying the land which had been let out to him
The only point that we are therefore left to determine is whether Birdhi Lal took possession or retained possession of the land without authority
The material on the record does not at all establish any of these elements
On the other hand as rightly pointed out by the High Court the Parcha lagan Exhibit A 3 and Pantinama Exhibit A 4 clearly show that the land in question had been let out by the appellant to Birdhi Lal on payment of rent
As the essential conditions for holding Birdhi Lal to be a trespasser were manifestly not satisfied in the present case the High 590 Court was perfectly right in rectifying the error of law apparent on the face of the record and quashing the judgments of the Appellate Revenue Authority and the Board of Revenue
It was next urged that even if the respondent Birdhi Lal is held to be a tenant by reason of the Pantinama exhibit A 4 he was liable to be ejected as the appellant Kishori Lal had framed his suit alternatively under section 180 of the Act
Reference to section 180 of the Act shows that it applies only to suits for ejectment of Khudkasht or Ghair Khatedar tenants or sub tenants
Khudkasht is defined in section 5 sub section 23 as land cultivated personally by an estate holder
It also includes land recorded as Khudkasht sir havala niji jot gharkhed in settlement records at the commencement of the Act as well as land allotted after such commencement as Khudkasht under any law
Similarly the components of rights to sub tenancy and gair khatedari tenancies are also determined by the provisions of the Act
The High Court had recorded the finding on this part of the case It may be mentioned at the outset that although the suit was raised by respondent Kishori Lal under sections 180 and 183 of the Act as aforesaid his claim was not upheld under section 180 so that the suit was decreed as one under section 183
In other words findings of the Revenue Courts as well as the High Court repel the alternative case sought to be made out before us
It required necessary averments and proof of facts which were absent in the case
It was therefore a completely hopeless plea which we cannot entertain at this stage
For the foregoing reasons we do not find any merit in this appeal which is hereby dismissed with costs
MR Appeal dismissed


Summary:
The appellant brought a suit for possession of land against respondent Birdhi Lal under Ss 180 and 183 of the Rajasthan Tenancy Act 1955
The Assistant Collector Baran dismissed the suit but the Revenue Appellate Authority allowed his appeal and held that Birdhi Lal was a trespasser
A further appeal by Birdhi Lal was dismissed by the Board of Revenue Rajasthan
Thereafter his application made under article 226 was allowed by the High Court
The High Court held Birdhi Lal to be a tenant within the meaning of section 543 and not a trespasser as conceived by section 544
On appeal by special leave the appellants contended before this Court that the High Court was not justified in exercising appellate jurisdiction and interfering with the concurrent opinions of the Revenue authorities
It was further contended that even if Birdhi Lal was held to be a tenant
he was liable to be ejected as the original suit had been framed alternatively under section 180 of the Act
Dismissing the appeal the court  HELD 1 The material on record does not establish that Birdhi Lal took or retained possession of the land without authority
The essential conditions for holding Birdhi Lal to be a trespasser under section 544 were manifestly not satisfied
The High Court was right in rectifying the error of law apparent on the face of the record and quashing the judgments of the Appellate Revenue Authority and the Board of Revenue
589F H  590A 2 The alternative case under section 180 required necessary averments and proof of facts which were absent in the case
The plea therefore cannot be entertained
590 C D