MISRILAL Vs. GOPALLAL

JUDGEMENT

(1.) THIS is a second appeal by the unsuccessful plaintiffs against the judgment and decree of the learned Additional Commissioner, Jaipur, dated 15. 1. 60 by which he has set aside the judgment and decree of the Assistant Collector, Dausa, dated 28. 5. 59 who had decreed the suit for possession in favour of the appellants under sec. 183 Rajasthan Tenancy Act 1955. We have heard the learned counsel for the parties and examined the record. The suit of the appellants was that the disputed land, Khasra No. 1664 1 Bigha, situated in the town of Lalsote was in their Khatedari and possession for generations and that they themselves had been paying the rent to the Government for the same ; that on Ashad Sudi 10 Smt. 2013 the respondent had forcibly taken possession of the same and did not allow the appellants to cultivate it, that the respondent had reaped both Rabi and Kharif harvests therefrom and has been still continuing possession over the disputed land as a trespasser; that the appellants many a time requested the respondent to leave the land as well as pay them the compensation and last time on 17. 7. 57, but that the respondent had flatly refused to do so. The prayer therefore was to give a decree for ejectment as well as damages amounting to Rs, 150/-against the respondent. All these allegations were denied by the respondent who alleged his cultivation over the disputed land as well as the payment of the rent thereof for a very long time. After framing necessary issues, the important amongst which were (1) whether the disputed land was in possession and Khatedari of the appellants, (2) whether the respondent had forcibly dispossessed the appellants on Jeth Sudi Punam Smt. 2012 and had been continuing possession thereon since then, and recording the evidence of the parties the learned trial court decreed the suit. In appeal the learned Additional Commissioner observed that the appellants Misrilal having himself admitted in his statements as a witness that the disputed land had been let out by him to the respondent in Smt. 2012 by whom it was cultivated during that year, it was not possible to come to a finding that the respondent had entered upon the land unlawfully, and therefore held that the suit under sec. 113 Rajasthan Tenancy Act was not maintainable. He, having directed the appellants to proceed under sec. 180 of the Act, if they deemed necessary, dismissed the suit. In this second appeal the learned counsel for the appellants has assailed the judgment of the learned lower appellate court on the ground that the same was passed contrary to the weight of evidence on record and that the statement of the appellant Mishrilal had been misread so far as it related to the admission that the disputed land had been let out to the respondent by the appellant himself in Smt. 2012. A further argument is that when the disputed land had been entered in the Khatedari of the appellants in Smt. 2012 in the Revenue Records and the same had not been disproved by the respondents the learned Additional Commissioner should have considered this aspect of the case also. In reply it has been urged on behalf of the respondent that neither the appellants were entered as Khatedars in the Revenue Records nor had their Khatedari been proved in any other way, nor the forcible dispossession as alleged by the appellant had been proved.

(2.) AS the judgments of the lower courts are different from each other and the judgment of the lower appellate court has been alleged to be contrary to the weight of evidence on record, we have ourselves gone through the entire evidence on record alongwith the learned counsel for the parties. Three witnesses Rameshwar, Madholal and Moolchand have been examined by the appellants, besides the appellant Mishrilal himself, on their behalf. In his statement the appellant Misrilal has stated that, the disputed land was in his Khatedari and he paid the rent therefor and that when he went to cultivate the same in ASad Smt. 2013 the respondent turned out his bullocks and plough just after he had taken out only 5 or 7 "koods or Hal". In cross-examination he admitted that in Smt. 2012 the respondent himself cultivated the disputed land at the instance of the appellant Mishrilal himself, not in AShad Smt. 2013 as alleged by the appellants in their plaint but in Smt. 2012 itself. That he continued in the possession of the land in Smt. 2013 also is quite clear from the plaint itself and the learned counsel appearing for the appellant too has admitted it at the bar. The other three witnesses produced on their behalf only stated that the respondent had not allowed the appellant Misrilal to cultivate the land in AShad Smt. 2013 and had asked him to go out therefrom. These statements also do not in any way change the above position. What mis-reading is alleged on behalf of the appellants is that in his cross-examination the appellant Mishrilal had also stated that in Smt. 2012 the respondent had been admitted on "adhi Shirakat Sajha" which has not been taken into consideration by the learned appellate court. Another argument advanced is that the respondent Bhonria had himself admitted in his statement that the land was in Khatedari of appellant Misrilal. The argument is that on the basis of these statements the respondent should have been treated as a trespasser for his continuing to be in possession of the land from and after 1. 7. 57, the alleged date of the arising of the cause of action. In the first place there is nothing on the record to prove that the respondent had been admitted only as "adhi Shirakat Sajhedar" and not as a tenant as alleged by him. No terms of agreement between the parties have been alleged, not to speak of being proved. No documentary evidence other than a copy of Khasra Ghirdawari of Smt. 2012 and 2013 has been produced on behalf of the appellants. The learned counsel appearing on their behalf argued that as the land has been entered in Smt. 2012 as Khud Kasht the respondent should be treated, as an "adhi Shirakat Sajhedar" and not a tenant. On what authority can it be so treated, he has not been able to make clear. Neither, the absence of the entry of the name of the respondent even as "adha Shirakat Sajhedar" in Smt. 2015 goes to belie the very averment made by the appellant Mishrilal in his statement as well as in the plaint itself. Besides from this copy of the Khasara Girdawari produced, it does not become clear whether the appellants are entered as khatedars or not thereon. The entry in column No. 7 meant for the name of the tenants is "kajormal Wagirah Baharah No. 1654". What is the entry of No. 1254 too has not at all been proved by the appellants. When the entry in Khasra No. 16 (for Smt. 2012) as against it is "khud-kasht" it can be taken to be "khudkasht" of all these persons who are entered in the column No. 7 and not of the appellants alone. This documentary evidence makes the case of the appellants worse confounded. They did not come with clean hands and alleged in the plaint that the respondent had been their tenant or "adha Shirakat Sajhedar", whatever they took him to be in Smt. 2012 nor did they state as to when the same tenancy or "sajhedari" has come to an end and in what manner. Nor did they state when the land had thereafter come in their exclusive possession and when thereafter they had been dispossessed by the respondent as alleged in the plaint. It is only during the course of cross-examination that the appellant Mishrilal has admitted, probably forced by circumstances, that the respondent had lawfully entered upon the land in Smt. 2012. Herein also he has, having first stated that the respondent had cultivated the disputed land after having been admitted by him ( appellant Mishrilal), resiled from that position and brought in the story of "adha Shirkat Sajedhari" without even explaining why he had first stated otherwise. When the story of " Adha Shirakat Sajedhar" has not been proved and corroborated by any other evidence and the appellants have acquiesced in the continuation of the cultivation in Smt. 2013 as well by the respondent, and the respondent, on the other hand, asserted that he was a sub-tenant admitted by the appellant, this story of "sajedhari" cannot be believed. Under the circumstances it is found that the learned Addl. Commissioner has rightly held the respondent to have been duly admitted by the appellants over the disputed land and rightly refused to eject him for this very reason as a trespassers therefrom. The learned trial court had taken a very wrong view of the whole matter without understanding the case correctly. It was a matter of fact that the learned trial court has mis-read the evidence. The witnesses produced by the appellants had no where corroborated the claim of the appellants that they were in possession of the land on AShad Sudi 10 Smt. 2013 and had been wrongly dispossessed therefrom by the respondent.