MINA Vs. JAGATIA

JUDGEMENT

(1.) This is the plaintiffs second appeal against an appellate order of the Addition Commis -sioner, Jaipur, dated 27.7.55, dismissing the plaintiffs suit which was decreed by the lower court on the ground that it was barred by limitation.

(2.) It appears that the plaintiff filed a suit for recovery of possession of agricultural land covered by khasra Nos. 83, 138 and 306 situated in village Hamzapur with the allegation that the defendants unlawfully took possession of his land wrongfully ejected him therefrom on 25.8.48. This suit was filed on 5.4.52. The trial court by its order, dated 7.4.52, dismissed the suit as time barred, as the period of limitation prescribed for the suits of this nature was 3 years in accordance with Art. 11, Group B, Schedule I of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951. In appeal the learned Additional Commissioner also held the same view and he upheld the order of the learned S.D.O. The matter came up before the Board in second appeal and the case was remanded to the lower court with the direction that the plaint be admitted and proceeded further in accordance with law. It was also observed that it was open to the defendants to raise the plea of limitation which should be determined by the court on the basis of the evidence of the parties which they may like to adduce. Accordingly the case was tried afresh by the trial court, which after recording the evidence of the parties decreed the suit. The defendants went up in appeal before the learned Additional Commissioner, Jaipur,against this decree of the trial court, who held that this being a suit by a tenant for recovery of possession of his land, due to wrongful dispossession or ejectment, was covered by item 12, Group B, Schedule I of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act and not by Item 10 or 11 of the said Group. As the period of limitation prescribed for item 12 was 3 years and this suit was filed on 5.4.52 i.e. 3 years and 7 1/2 months after the alleged dispossession, it was barred by limitation. The learned Additional Commissioner therefore dismissed the suit as being time barred. Hence this second appeal by the plaintiff before the Board.

(3.) We have heard the learned counsel appearing for the parties and have perused the record of the case. It has been urged on behalf of the appellant that from the pleadings and the evidence produced by the parties, it was clear that this was a suit for the ejectment of a trespasser taking possession of land without lawful authority for which the period of limitation is 12 years prescribed under Art 10 and, therefore, the suit was filed within the prescribed period of limitation. The learned counsel for the respondents argued that this was clearly a suit under Art. 12 for which the period of limitation prescribed is only 3 years from the date of wrongful dispossession and as it was filed beyond this prescribed, period, it was barred by limitation. This matter has arisen on several occasions before the Board as to whether cases of this nature fall under Arts. 10, 11 or 12. In Shyama vs. Noharya (R.L.W. 1954 Revenue Supplement, page 93) a Division Bench of this Board held that a suit by a tenant for recovery of possession on wrongful dispossession or ejectment was covered by item 12. The relevant portion of this decision may with advantage be quoted as below : - - "Item 10 applies to a suit for the ejectment of a trespasser having possession of land without lawful authority. This provision has been borrowed from items 47 of the II Schedule of the Jaipur State Tenancy Act, 1945. Items 11 and 12 are reproductions of items 48 and 49 of the same Schedule. Item 47 and 48 are with reference to the provision of sec. 90 of the Jaipur Tenancy Act and item 49 has reference to sec. 93 of the said Act. Sec. 90 of the Jaipur Tenancy Act provides remedies for ejectment of trespassers and is divided into two parts. The first part relates to ejectment of the trespasser at the instance of the Nazim whereas the other portion relates to ejectment of the trespasser at the instance of the persons whom the land has been duly let out. Sec. 93 relates to remedies available to a tenant for wrongful ejectment. On a comparison it becomes clear that secs. SO and 93 of the Jaipur Tenancy Act are based upon sec 180 and 183 of the U.P. Tenancy Act respectively. A person as laid down in sec.180. U.P. Tenancy Act, taking the possession of land without the consent of the person entitled to admit to occupation of such plot shall be liable to ejectment under this section on the suit of the person so entitled. The position as to the applicability of secs. 180 and 183 under the U.P. Tenancy Act has been summed up by Shri Kazi A. Ahmed Bilgrami in his commentary at page 1037 which may be quoted as below : - - "If a tenant was illegally ejected from or prevented from obtaining possession of his land by his landholder or by anyone claiming to be a landholder or by any person admitted to or allowed to retain possession of the land by either of these two persons, the case would fall under sec. 183. If the trespass was committed by some of the Khewat Proprietors who did not claim a right of ejectment as landholder or by a person who did not claim to hold either through the landholder or through the person who claimed to be the landholder, the case was one under sec. 180. "A suit by a tenant for recovery of possession over his holding in case of wrongful dispossession or ejectment would be covered by item 19 of Group B of the 4th Schedule of the U.P. Tenancy Act, items 48 and 49 of the 2nd Schedule of the Jaipur Tenancy Act and item 12, Group B of the first schedule of the Revenue Courts (Procedure and Jurisdiction) Act. For these reasons we are of the opinion that the present suit is governed by item 12 of Group B of the 1st Schedule of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act prescribing a period of three years from the date of dispossession."