NATHA SINGH Vs. SHAM KAUR

JUDGEMENT

(1.) The appellants first filed an application under Section 9(1)(i) read with Section 14-A(i) of the Punjab Security of Land Tenures Act, 1953, for the eviction of the respondent alleging that they were small landowners, that the respondent was their tenant and that they required the land for their self cultivation. Before the Assistant Collector, who was seized of the application for eviction, the respondent contended that there was no relationship of landowner and tenant between the parties and that the application was not maintainable. The contention of the respondent was accepted by the Assistant Collector and the application was dismissed. Thereupon, the appellants filed the suit out of which this second appeal arises for possession alleging that they were the owners of the land, that the defendant was originally their tenant, that the defendant had denied their title and that, thereby the defendant had become a trespasser. They also mentioned in the plaint that there application for eviction of the defendant had been dismissed by the Assistant Collector on the defendant's plea that there was no relationship of landowner and tenant. The defendant contested the suit alleging that she was not a trespasser but that she was a tenant. The defendant also pleaded that she had become owner in respect of a share of the suit land. Both the lower Courts found that the defendant had become owner of the land to the extent of 29/227th share. The lower Courts also found that the defendant was a tenant and not a trespasser in respect of the remaining extent of land. On that finding, the lower Courts dismissed the suit.

(2.) In this second appeal by the plaintiffs, the learned counsel for the appellants urges that the defendant having successfully pleaded before the Assistant Collector that there was no relationship of landowner and tenant between the parties and having got the plaintiff's application for eviction dismissed on that ground was estopped from contending in the present litigation that she was a tenant and not a trespasser. There appears to be force in the submission of the learned counsel for the appellants. Exhibit P.2, the order of the Assistant Collector shows that the present defendant contested the application filed by the present plaintiffs under Section 9(1)(i) read with Section 14-A(i) of the Punjab Security of Land Tenures Act, 1953, on the plea that there was no relationship of landowner and tenant between the plaintiffs and herself. This plea was upheld by the Assistant Collector. The plaintiffs were, therefore, driven to the civil Court to file the suit for possession. The defendant took up a stand which was wholly inconsistent with the stand taken by her in the earlier porceedings. The defendant cannot, therefore, approbate nad reprobate. Having got the application of the plaintiffs dismissed on the ground that there was no relationship of landowner and tenant, it was no longer open to the defendant to contend, in the civil suit, that there was such a relationship. I, therefore, accept the second appeal and decree the suit for possession in regard to 198/227th share of the suit land. There will be no order as to costs.