MOGJI Vs. INDERJIT SINGH

JUDGEMENT

(1.) THIS is a second appeal filed by the appellants against the judgment and decree passed by the Commissioner, Udaipur, dated 30th March, 1960. Briefly the facts of the case are that the plaintiff respondent filed a suit against the defendant-appellants for ejectment from the Hawala land consisting of 27 bighas and 5 biswa, in village Sameliya, Tehsil Garhi, District Banswara. The respondent claimed that the appellant Nos. one to five were given the suit land on a lease of five years initially which was extended for further one year. The other appellants Nos. six to sixteen Were not admitted by the respondents but they came into possession of this land in an unlawful manner as trespassers. He further prayed for ejectment of the appellants. The present appellants defendants resisted the suit on the ground that they were tenants of the holding in dispute from a very long time and no lease was ever given to them. They also challenged the respondent's suit on various grounds, such as barred by limitation, filed without notice being served on them and that the. lease was not registered etc. The Sub-Divisional Officer tried the suit. He also allowed the respondent to amend the suit in order to enable him to claim ejectment of the appellants u/s 180 of the Rajasthan Tenancy Act and finally decreed the respondent's suit for ejectment holding the appellants as trespassers. In appeal before the Divisional Commissioner, Udaipur by the present appellants the judgment and decree of the trial court was upheld.

(2.) BEFORE the learned counsel for the appellant could reopen the case the learned counsel for the respondent raised a preliminary objection against some grounds taken in the second appeal by the appellants by saying that these were new legal points which were never taken by the appellants in the trial court or in the first appellate court. The concurrent finding of facts by the two subordinate courts could not be challenged by the appellants in the second appeal. If any new plea is to be taken it has to be done with the permission of the court. In support he cited AIR 1960 Supreme Court, P. 213 and AIR 1961 Supreme Court P. 1007. He also drew the attention of this court to the provisions of Order 41, Rule 2. The learned counsel for! the appellants could not give any satisfactory reply to these preliminary objections raised by the learned counsel for the respondent. He, however, argued that there were certain legal flaws that were committed by the subordinate courts which prejudiced the appellant's case and therefore he was free to take these legal pleas in the second appeal and also the fact that certain changes in the law have subsequently come in and the courts were bound to take cognizance of the changes of law at the time of disposing of a pending case before them. In support he cited AIR 1959 Supreme Court, P. 699. The learned counsel for the appellant therefore raised the following new points specifically at the time of arguments which were not previously taken before the two courts below.