MOHAMMAD AHMAD KHALIK Vs. RAMDEO

JUDGEMENT

(1.) THIS second appeal has been filed by the unsuccessful plaintiff whose suit for recovery of possession on agricultural land covered by khasra Nos. 42, B 3,102 and 107 was dismissed by the trial court, the lower appellate court having confirmed the same in first appeal. The plaintiffs case before the trial court was that he was the khatedar of the land in dispute and that the defendant respondent was his halt (Agricultural labour) who subsequently assumed the title of a sub-tenant and on being asked did not vacate the land. It was therefore prayed that the respondent be dispossessed and the land in question be restored to the plaintiff appellant. The defendant has repelled this contention by claiming himself to be a sub-tenant of the land in dispute and urged that he was not liable to ejectment so long as the Rajasthan Protection of Tenants Ordinance was inforce. The trial court after recording the evidence of the parties held that the plaintiff failed to prove that he had employed the respondent defendant as his hali. It also observed that the defendant had established beyond doubt that be was a sub-tenant and that he had been paying rent in kind as agreed upon between the parties. The suit was accordingly dismissed. The learned Addl. Commissioner also after examining the evidence on record held that the evidence produce by the plaintiff appellant did not establish that the respondent was his hali, and, therefore, the finding given by the trial court to the effect that the respondent had been cultivating the land as a sub-tenant was correct and he was not liable to ejectment so long as the Rajasthan Protection of Tenants Ordinance was in force. Against this concurrent decision of the two courts below the plaintiff has filed a second appeal before us-

(2.) HIS main contention is that the courts below did not correctly weigh the evidence and arrived at an incorrect decision in holding that the respondent was a sub-tenant. It was also urged that as the Rajasthan Protection of Tenants Ordinance had since been repealed the provisions of sec. 186 should be made applicable to those proceedings and the respondent be declared as trespasser. These contentions have no for force whatsoever. In the first place, in a second appeal a concurrent decision of the subordinate courts can be interfered with only on any of the grounds mentioned in sec. 224 of the Rajasthan Tenancy Act. The learned counsel has not been able to satisfy us that the decision of the lower courts was contrary to law or usage having the force of law or that there existed some error or defect in the procedure followed by them. It is futile to argue that the lower courts have not correctly appreciated the evidence, as we find that there is a dispassionate discussion of the evidence of the parties, in the decisions of both the courts. The second argument of the learned counsel to convert these proceedings under sec. 186 of the Rajasthan Tenancy Act is also not convincing. Even if we do so for the sake of argument, it is clear beyond doubt that the plaintiff who at first sued the defendant as being his hali cannot now substantially change his pleadings that the defendant may be treated as a sub-tenant. This in fact would men putting up an entirely, different case and the defendant will almost be taken up unawares. The authority on this point is A. I. R. 1954 S. C. 758, Patna wherein it was held that a variance between the leading and the proof was not permissible under the law. In the circumstances, the appeal stands rejected. .