LACHHMAN LAL Vs. RASIDAN

JUDGEMENT

(1.) THIS is the defendant's second appeal against the concurrent decrees of the lower courts whereby the plaintiff respondent's suit for ejectment of the appellant has been decreed.

(2.) WE have heard the learned counsel appearing for the parties and have gone through the record as well. It is apparent that the learned lower courts have failed to appreciate the real import of the plaint presented by the plaintiff in the case. The first para of the plaint makes it clear that the case of the plaintiff is that she is the khatedar tenant of the land in dispute and that the defendant has been cultivating the same in the capacity of a Zaili (Subtenant) since long. In the second para of the plaint a reference is made to the various objections that were raised by the defendant in the mutation proceedings that were started by the plaintiff for having her name entered in place of her deceased uncle. In the third para, the plainliff alleges that she demanded possession from the defendant but he refused to surrender the same. In para 5 of the plaint it was alleged by the plaintiff that the defendant had not paid any rents to her during the last five years. In sixth para the allegation is that the defendant claims protection of the Rajasthan (Protection of Tenants) Ordinance, 1949 but according to the plaintiff it ceased to have any validity after 1951. It was prayed that the defendant be ejected and possession be restored to the plaintiff. The trial court held that the defendant was a trespasser upon the land in dispute and hence he was liable to be ejected under item 10, Group B Schdl. I of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951. The suit was accordingly decreed. The learned Commissioner upheld this finding and confirmed the decree of the trial court. As pointed out above, it was never the case of the plaintiff that the defendant had dispossessed her wrongfully and that the defendant was a trespasser. Her case clearly was that he was a sub-tenant and was liable to be ejected for continuous nonpayment of rent. The issues that were framed by the trial court were mostly irrelevant. The most important issue obviously was as to whether the defendant was a trespasser or not and strangely enough this issue is conspicuous by its absence from the issues settled in the case. Nevertheless, the trial court has found the defendant to be a trespasser. The absurdity of such a finding is to manifest to need any mention. The trial court or the first appellate court had no justification for ignoring the case as set-up by the plaintiff and for substituting any entirely different case and to make the substituted one the basis for granting relief to her. She was bound by her allegations in the plaint and she was to fail or succeed according as she was able to establish her case or not. It is really strange that it occurred neither to the learned Assistant Collector nor the learned Commissioner that no issue was farmed on the point as to whether the defendant was a trespasser or not. Naturally the attention of the parties was never focused on the point and yet a finding was given. It is still more strange that the lower courts did not care to examine the plaint. If they had done so, the allegations contained therein would have been clear to them. It should have also occurred to them to examine the provisions of the Rajasthan (Protection of Tenants) Ordinance, 1949 which itself was referred to by the plaintiff. As laid down in sec. 4 of the aforesaid Ordinance, no tenant, the term being defined in the Ordinance so as to include a sub-tenant as well, was to be liable to ejectment or dispossession from his holding as long as the Ordinance remained in force. This suit was instituted in the trial court on 11-8-53, was decreed by that court on 11-3-55 and the appeal was decided by the Commissioner on 9-7-55. The Ordinance was promulgated in 1949 and remained in force till it was repealed by the Rajasthan Tenancy Act, 1955, which was enforced on 15th October, 1955. The suit was therefore clearly incompetent when it was instituted and the decrees passed by the lower courts are manifestly untenable and cannot be allowed to stand. It of course goes without saying that as the Ordinance has been repealed now, it would be open to the plaintiff respondent to seek such remedy under the Rajasthan Tenancy Act as he may be advised. The appeal is allowed, the decrees of the lower courts are set aside and the suit filed by the respondent for ejectment of the appellant shall stand dismissed. .