PARTAP SINGH Vs. RUDIA

JUDGEMENT

(1.) THIS is the defendants second appeal against the appellate decree of the Additional Commissioner, Jaipur, dated 26-9-53 confirming the decree of the trial court in a suit brought by the respondent plaintiffs against the appellants-defendants for recovery of possession over the land in dispute.

(2.) WE have heard the learned counsel appearing for the parties and have examined the record as well. In the lower courts the appellant's contention was that the respondents had voluntarily surrendered their possession and as such they were not entitled to seek restoration Both the lower courts held that no voluntary surrender was proved in the case. The learned counsel for the appellants has frankly conceded his inability to show us anything substantial which may justify our interference with the concurrent findings of the lower courts on a question of fact in the second appeal. An interesting point of law has, however, been raised by Shri Dhonkal Singh to appreciate which the facts of the case deserve to be noted briefly.

(3.) I have given my careful though to the arguments advanced by both of my colleagues. It is an admitted fact that the respondents were holding the land in dispute under a lease for a fixed term from the usufructuary mortgagee. The mortgagee deed has not been produced hence it cannot be determined whether usufructuary mortgagee enjoyed the rights to lease or sub-let it, nor can it be know was the direction of the usufructuary mortgage. In the absence of such a deed and also in view of the face that the right to sub-let or lease out has not been disputed by the appellants, it shall be presumed that the mortgagee was fully justified in leasing out the land in question. Thus the respondents would be considered as tenants holding the land for a fixed term on a contract under another person. Under Sec. 176 (1) of the Alwar Revenue Code it is only a tenant who would relinquish his tenancy without notice at the end of his tenancy by himself. This Act nowhere provides that a tenancy would automatically and ipso facto terminate on the expiry of that term. On the other hand, it has been clearly laid down in the procedure for ejectment under Sec. 180 of the aforesaid Act that a tenant shall not be ejected otherwise than in execution of a decree for ejectment except in the following cases: - (a) When tenant has any right of occupancy and does not for a fixed term under a contract. Therefore, it is clear that the respondents who were holding the land under a contract for a ixed term could not have been ejected without the execution of a decree for ejectment. Since the appellants had no recourse to ejectment of the respondents by due process of law they were not justified in ejecting the respondents. The plea that the respondents had voluntarily surrendered the land is not sufficient to take possession of the land against the will of the respondents. Similar views were held in 29 Bombay 213 that a tenant holding over after the termination of the period of contract was dispossessed by the landlord without his consent. , Although the suit of the tenant was dismissed by the trial court yet in revision it was held by the High Court that the applicants were not liable to be ejected by the defendants and the decree was reversed and that he was entitled to a decree for possession. I, therefore, agree with the view of my learned colleague Shri Shyamlalji who has agree with concurrent findings of the lower courts. The appeal is, therefore, hereby rejected.