GIRWAR Vs. SUKHLA

JUDGEMENT

(1.) This is the plaintiffs appeal against an appellate decree and decision of the learned Addl. Commissioner, Jaipur dated 13.11.56 dismissing the plaintiffs suit for recovery of possession of the land in dispute which was decreed by the trial court. The plaintiffs case before the trial Court was that they are the landlords of the land covered by Khasra numbers 531, 538 and 539 and had been either cultivating it themselves or getting it cultivated as and when suited them by giving a temporary lease to persons who offered themselves to cultivate this land. It was alleged that in Svt. 2011 Girwar, Ganesh, Chotka and Manna on behalf of all the co -sharers in this holding got this land cultivated for one year by the defendant respondents with the stipulation that after the crops were harvested, these fields would be made over by the defendants to the remaining four co -sharers for either cultivating it themselves or in any other manner they liked. It was urged that the defendants instead of abiding by the aforesaid terms of lease refused to give this land back to the plaintiff appellants number 5,6,7 and 9. It was prayed that the defendant be ejected and possession be made over to the plaintiffs. The defendants denied the plaintiffs claim and asserted that they had been cultivating the land in their own rights since long, that it was not leased to them for a year as urged by the plaintiffs and that by virtue of their long standing possession as tenants they were not liable to be dis - possessed. The trial court struck necessary issues and after recording the evidence of the parties decreed the plantiffs suit. In appeal by the defendants the learned Addl. Commissioner took different view in the matter and held that the defendants were not trespassers and therefore not liable to ejectment. The suit was accordingly dismissed. The plaintiffs have now come in appeal before us.

(2.) We have heard the learned counsel appearing for the parties and have examined the record of the case.

(3.) The contention of the learned counsel for the appellant is that when both the courts below concurrently held that the defendant had acquired this land in dispute from the plaintiffs Nos. 1 to 4 in Smt. year 2011 on one years lease and had not been cultivating the land since long time, the learned Addl. Commissioner committed a substantial error and acted contrary to the weight of evidence on record and making an entry in the case that after the termination of the lease, the defendant continued to "hold over" the land which fact was neither alleged by them in their written statement nor made the subject matter of an enquiry by the trial court. It was also urged that the word "holding over" means that the relationship of landlord and tenant continued with the assent of both the parties and the important test by which the relationship might be continued in the present case, and that there is no evidence on the point that the plaintiffs ever accepted the rent or assented to the continuance of the tenancy in any manner and that such a tenant is no better than a trespasser. A.I.R. 1949 Nag. 282 and A.I.R. 1943 Oudh 392 were cited as authorities on this point and also 1955 Patna, 158.