THAKUR DALEEP SINGH Vs. THAKUR HANUMAN SINGH

JUDGEMENT

(1.) THIS second appeal against the appellate decree of the Additional Commissioner, Jaipur dated 23-9 55 has been filed by the plaintiff whose suit for ejectment of a trespasser was decreed by the trial court but was dismissed by the tower appellate court on the ground that the decree for possession has obviously ceased to be executable owing to the land having been resumed by the Government.

(2.) WE have heard the learned counsel for the parties and have examined the record as well On 20. 8. 48, Kamdar of Thikana Peepla which was under the Court of Wards management brought a suit against Hanuman Singh defendant in the court of the Nazim Sambhar for ejectment and recovery of possession It was averred in the plaint that the defendant being a Chhut Bhaiya of the Thikana was allotted two wells and 250 bighas of land by a rope chain for his maintenance; that taking advantage of the minority of the Thukur, the defendant wrongfully took into his possession 86 bighas of extra land in 1944; that the matter went up before the Revenue Minister of the former Jaipur State who directed the plaintiff to bring a regular action; that the defendant refused to vacate possession and hence a decree for ejectment and mesne profits be passed against him. The defendant in his written statement adopted a rather evasive attitude and also pleaded that he held a patta in respect of the land in dispute and that the same had never been in the possession of the plaintiff within 12 years prior to the institution of the suit as it had been in continuous possession since long. A number of issues on points of law and fact were framed by the trial court and after recording the evidence of the parties the suit was decreed an 21. 4. 50. The defendant went up in appeal before the learned Additional Commissior. It appears that the consequences of the enforcement of the Rajasthan Land Reforms & Resumption of Jagirs Act (herein after referred as the Act were not argued before the trial court though the enforcement had taken place in 1952 as there is no reference whatsoever in the judgment of the trial court to the Act. The learned additional Commissioner has not referred to the Act in express terms in his judgment but presumably he had the provisions of the Act in the mind while observing that the land having been resumed by the Government the decree was no longer capable of execution. The learned Additional Commissioner has reversed the decree of the trial court on this ground alone