The circumstances leading to this revision are that the appellant claimed himself to be the 'mustkil shikmi' of disputed land, being in cultivatory possession thereof for a number of years. He, therefore, applied for being recorded as khatedar under the provisions of sec. 16 (1) of the rajasthan tenancy act, 1955 (hereinafter referred to as the act). The learned sub divisional officer, bundi, held that 'mustkil shikmi' was not a tenant who could be recognised as a khatedar with the enforcement of the act u/s 15 (1). He directed the applicant to proceed for a declaration u/s 15 (2) , if he so wished. In appeal the learned commissioner observed that 'mustkil shikmi' was a tenure envisaged under the statutory or non - statutory rules of the former bundi state; and that sec. 16 (2) was the only section dealing with such special tenancies. He, too, therefore held that the applicant should proceed u/s 15 (3) if he so desired.
Now, sec. 15 (1) of the act confers khatedari rights on every tenant other than a tenant of khudkasht or a sub - tenant at the commencement of this act. A tenant is defined by sec. 5 (43) of the act as a person by whom rent is paid or is payable. It is not in dispute in this case that the applicant has been paying rent to the state. There cannot therefore, be any room for doubt about the status of the applicant as a tenant. A tenant of "khudkasht" can, vide sec. 16 (1) of the act, be only a person to whom at the commencement of this act or at any time thereafter "khudkasht" as defined by sec. 9 of the act has been or is let out lawfully by any estate holder. Vide sec. 5 (41) of the act a sub - tenant is a person who holds land from the tenant thereof. Admittedly, the applicant has been holding directly from the state. He is, therefore, neither a tenant of "khudkasht" nor a sub - tenant. His status is, therefore, clearly that of a "tenant". This conclusion is reinforced by the provisions of the bundi state tenancy act, 1942 (hereinafter referred to as the bundi act) which was in force immediately before the commencement of the act. Sec. 16 (a) thereof lays down that (i) khatedar, (ii) shikmis, and (iii) hawala jotas shall be the classes of tenants. Vide sub - section (e) thereof "shikmi" has been defined to be a person cultivating the land on which he has not acquired the rights of a khatedar in the manner described in sub - sec. (b). A sub tenant has been defined by sec. 46 thereof as a person holding land from a tenant, a tenant's mortgagee, or from the holder of the village service holding. Even under the provisions of the bundi act, therefore, the applicant is a "tenant" and not a sub tenant. The term ''mustkil shikmi' has neither been defined nor has been used in the bundi act even though as discussed above, the class 'shikmi' finds mention there. The word 'mustkil shikmi' can however well be taken in its literal meaning to be a qualifying expression of this class 'shikmi'. 'mustkil shikmi' literally means a permanent shikmi. This class can, therefore, be taken to have at any rate those rights which are laid down for shikmis u/s 34,35,36,37, 38,39, 40, 41 and 42 of the bundi act, that is to say, limited transferable and heritable rights if not better.
We have also been shown a set or instructions issued on the formation of the former rajasthan about the assessment of "juwara" which has been defined by sec. 2 (a) of the bundi state land revenue act, 1942 as money paid or payable by a tenant or sub - tenant over and above the land revenue on account of the use or occupation of the land held by him. Para (1) thereof says that the shikmi tenant continuing to be in possession of the land for a period of 12 years or more shall not be asked to pay any "juwara" when in the succeeding paragraph thereof the shikmi tenants of a period less than that were required to pay certain specified amounts of 'juwara'. The shikmi tenants of a period of 12 years or more have also been designated as 'mustkil shikmis' there. From this 'hidayat' we can very well conclude that before the commencement of the act 'mustkil shikmis' were recognised as 'shikmi tenants with better rights than ordinary shikmis. In this view the learned commissioner was in error in holding that the applicant was not entitled to the conferment of khatedari. Rights u/s. 15 (1) of the act, and was governed by sec. 15 (2) thereof.
The learned government advocate has, however, argued that though the applicant as a tenant would ordinarily have been entitled to khatedari rights u/s 15 (1) of the act; the provisions of sec. 15 - a a stand in his way because of the land in dispute admittedly lying in the chambal project area. Now sec. 15 - a a reads -
"non - accrual of khatedari rights in chambal project area in certain cases, (1) notwithstanding anything contained in any lease, assessment parcha, patta or other document, no khatedari rights shall be deemed ever to have accrued to any person holding land within the chambal irrigation project area.
(2) nothing in sub sec. (1) shall affect or apply to any person who had, since before the commencement of this act, heritable and transferable rights under the tenancy laws of the former kota state or the former bundi state, or to whom khatedari rights may have accrued under sec. 13 or sec. 10 of this act or under and in accordance with the provisions of the rajasthan colonisation (chambal project government lands allotment and sale) rules, 1957 or under or in pursuance of any provision of the rajasthan land reforms and resumption of jagirs act, 1952 (rajasthan act 6 of 1952) or the rajasthan zamindari and biswedari abolition act, 1959 (rajasthan act 8, 1959).
It nowhere says that any rights that might have accrued to any tenant under sec. 15 (1) of the act shall be un - done by the introduction of this section. What it says is only this that notwithstanding anything contained in the lease, assessment parcha or other document, no khatedari rights shall to deemed ever to have accrued to any person holding land within the chambal irrigation project area. At the same time vide sub - sec. (2) thereof it saves the rights of the persons who had since before the commencement of the act heritable and transferable rights under the tenancy laws of the covenanting states. It is, therefore sec. 15 (1) of the act read with proviso thereto that alone shall govern the rights of the applicant in the present case. As already discussed the applicant was a tenant in terms of the bundi act itself at the commencement of the act. He could not, therefore, have acquired khatedari rights only if it was found, the land being admittedly situated; in the chambal project area, that the land has been let out temporarily to him. There is no provision in the bundi act, nor has there been produced any other law, rule or hidayat to show that any land was allotted temporarily in the former bundi state. When there was nothing like temporary allotment of land in that state, any person holding land will be deemed to be holding it permanently and not temporarily. The proviso to sub - sec. (1) will not, therefore, operate and the applicant shall be deemed to have acquired khatedari rights with effect from 15. 10. 55 the date of the commencement of the act. Any provision in sub - sec. (2) of sec. 15aa will also not disturb the acquisition of these rights. The simple reason is that this sub - section is meant to take the cases out of the mischief of sub - sec. (1) of sec. 15aa and not out of the mischief of sub - sec. (1) of sec. 15. The applicant does not claim khatedari rights on the basis of any lease, assessment parcha, patta or any other such document. On the other hand, he claimed this right on the basis that he was tenant at the commencement of the act. , and sec. 15 (1) confers this right on him. The argument advanced by the learned government advocate, therefore, does not affect the conclusion arrived at by us above. In result, this revision has got no force and is hereby rejected.