GHISYA Vs. GYARSA

JUDGEMENT

(1.) THERE is no evidence on record to support the con* tention that the appellant was a party to the lease and that he ever admitted them as his tenants on the execution of the Istamarari lease in Smt. 1995, or that respondent No. 3 accepted the rent for this land with the acquiescence of the appellant after the execution of this lease. On the other hand there is a clear statement of the respondents No. 1 and 2 that the original lease of Smt. 1994 remained ineffective, and they got possession on the land after the istamarari lease of Smt. 1995 was subsequently executed in their favour by respondent No. 3. It is a clear case in which one of the co-sharers who was not exclusively in possession of the whole area on the request of the respondents revoked the previous lease and executed a perpetual lease purporting to transfer the share of the appellant without his knowledge and to his detriment, authorising the lessee to continue to remain in possession of that area in perpetuity and to exercise all conceivable rights over the same. The lease in such a case would be void and the lessee would be no more than a trespasser liable to ejectment as such. Per Shri Shyamlal : - In view of the clear averment contained in the plaint it must be found as a fact that the contesting respondents entered upon the land in dispute in accordance with the terms of a valid contract of tenancy. That contract expired after 5 years. The respondents therefore could not, after the expiry of five years period, be regarded as trespassers. In India a landlord can only eject his erstwhile tenant by recourse to law and by obtaining decree for ejectment. Per Shri S. L. Ahuja : - It is a question of fact in each case whether the landlord by assenting to the tenant's continuing in possession after the termination of the lease altered the character of his possession from that of a trespasser to that of a tenant holding over. The intention of the parties as well as their conduct is relevant in determining whether a tenant who continued in possession of the land after the termination of his lease was a tenant holding over, or a trespasser. The conduct is certainly more eloquent than words. The appellant by bringing a suit for recovery of rent indicated clearly that he had impliedly thought not expressly assented, to the respondent's continuing in possession of the land. Taking these facts into consideration it cannot be said that the contesting respondents were trespassers. Per Shri Kanwar Bahadur - The circumstances which have given rise to this appeal against the appellate order of the Additional Commissioner, Jaipur dated 29. 3. 55 may be stated in brief as below.

(2.) GHISA the plaintiff appellant filed a suit against the respondents in the court of Civil Judge Kotputli with the allegation that the land in dispute which was held jointly by him and his brother Onkar respondent No. 3 was leased out to Gyarsi and Ghadsi respondents No. 1 and 2 on Magh Sudi 4, Smt. 1994 for a period of 5 years by him. Thereafter the respondents No. 1 and 2 somehow managed to obtain an Istamrari lease in respect of the same land on Ashadh Sudi 7, Smt. 1995 from respondent No. 3 without the knowledge and consent of the appellant, during his absence from the village. The appellant, therefore, prayed that as Onkar respondent No. 3 was not authorised to execute an Istamrari lease in respect of the appellants 1/2 share in the holding, the Patta issued by him dated Ashadh Sudi 7, Smt. 1995 be declared as void and the appellant be put in possession of his share of the land by ejecting the respondent's No. 1 and 2. Onkar respondent No. 3 in his written statement before the Civil Judge dated 31. 10. 1947 admitted to have executed the said lease and added that he did so without the assent of the appellant and under the influence of Bhang administered to him by the respondents No. 1 and 2. The other two respondents however contested the suit on the ground that as the impugned lease in respect of this joint holding was given by respondent No. 3 as a Karta and Manager of a joint Hindu Family, it was binding on the appellant and could not be declared void nor could they be ejected from the land in dispute. Several other pleas including the one challenging the jurisdiction of the civil court to try the case were also taken. The civil court heard the case on the point of jurisdiction and held that the suit was triable by a Revenue Court and should be transferred to the S. D. O. concerned for disposal. This view was confirmed by the High Court on the 8th December, 1948, Accordingly, the case came up for hearing before the Nazim Kotputli. A preliminary point was raised before him on behalf of respondents No. 1 and 2 to the effect that as this suit was primarily for the ejectment of a tenant, it should be consigned to record under sec. 5 of the R. P. T. O. 1949. The Nazim however overruled this contention and ordered the suit to proceed in the usual manner. In revision, the Board of Revenue by their order of 25th February, 1950 declined to interfere with this order of the Nazim and the case was sent back to him for proceeding further with the trial according to law.