- (1.)THESE two appeals have been presented by the parties to the suit against one and the same judgment of the learned Additional Commissioner Jaipur, dated 30. 6. 59. We have heard the learned counsel for the parties and examined the record. Appeal No. 27 has been preferred by the plaintiffs Jaikumar and Jawaharlal whose suit for ejecting Ladhuram as trespasser and awarding damages amounting to Rs. 1200/- (four times the annual rent of Rs. 300/-) has been only partially decreed by the trial court (Assistant Collector Sambhar) disallowing any damages for the simple reason that no issue was framed in this respect. This decree has been further modified in favour of the plaintiff by the learned lower appellate court by granting by way of damages an amount equal to double the annual rent fixed in the settlement. The defendant Laduram has come in appeal against the decree of ejectment as well as damages. The plaintiffs Jaikumar and Jawaharlal have come in appeal with the prayer that the full amount claimed by them should be awared by way of damages. The basis of suit by the plaintiffs was that the disputed land in village Shardulpura, Tehsilphulera,had been let out by them to one Ganga-ram for cultivation for one year Smt. 2009 on 29. 6. 52, that the said Gangaram went away leaving the land
(2.)DQN ekg dk'r djus ds ckn Nksm+dj pyk x;k** after cultivating the land for a few months, that after the going away of Gangaram they were intending to start khudkasht over the land but that the defendant-Ladhuram, who had nothing to do whatsoever with it, forcibly and without permission of the plaintiffs took possession thereof on Posh Sudi Punam. The prayer was that the possession of Ladhuram defendant being that of a trespasser and he being unwilling to restore the possession of the plaintiffs, he should be ordered to be ejected therefrom as a trespasser and four times the rent for the two years Svt. 2009 and 2001 be awarded as damages. Land Tenure Act, The suit was brought on 2. 3. 54 under sec. 135, Jaipur State Grants 1947. This was denied by the defendant Ladhuram who contended that the land was being cultivated by him and his brother Gangaram ever since and that the Kabuliyat had been executed by Gangaram alone in his capacity as manager of the family, that Gangaram had not left the village and that they had been continuing to cultivate it as tenants as usual. After framing necessary issues, important amongst which were No. 3 and 4. . . . . . . . . . . . . . . ******** and recording the evidence of the parties the learned Assistant Collector Sambhar, Shri G. D. Bhardwaj, R. A. S. , held that when the agreement was only between Gangaram and the plaintiff:" Jaikumar and as he had gone away leaving the land,labhuram should have taken possession of the same only with the permission of the plaintiffs-khatedars and that as he had not done so he was clearly a trespasser, and decreed that he be ejected as such under sec. 183 of the Rajas-than Tenancy Act, the same having come in force in the meanwhile. The learned Additional Commissioner also in appeal holding that "the tenancy is the result of a contract between the tenant and the landholder it must be shown that the land holder agreed to admit all the persons to the holding before it can be held that it belongs to all the members of the joint Hindu family. The onus of proving that the land-holder did settle the land with all of them jointly and not only with the individual or individuals in whose name the contract is centered is on the defendants. No amount of common living on the part of the persons who claim to be joint tenants with the person who entered into the contract can made them joint tenants, etc. "confirmed the decree without examining whether Gangaram had actually gone away leaving the land unclaimed or in other words (to use the technical language)" abandoned it; and also awarded damages further as stated above. It is against this decision that the present two cross-appeals have been preferred. There is no dispute amongst the parties that the Kabuliyat of the disputed land had been executed by Gangaram, the brother of the defendant Ladhuram. It is also the case of the plaintiffs themselves as stated in the plaint itself at pages No. 3 and 4. . . . . . ******** that the land was not in possession of the plaintiff when Ladhuram defendant has been alleged to have taken possession thereof, but the land had been in possession of Gangaram, his brother, as duly admitted tenant on the date of, or before, its possession being taken by him. It needs no logic to establish that in the course of Smt. 2009 itself and before the expiry of the period of the lease itself, the plaintiffs had no business to claim possession of the disputed land unless it was proved that the land had been "abandoned" by the defendant. For the tenancy of Gangaram could not have been called to have been extinguished until then. Vide sec. 31 of the Jaipur State Grants Land Tenures Act 1947 a holding could be treated to have been "abandoned" only when the case fulfilled the conditions prescribed by sec. 52 of the Jaipur Tenancy Act 1945, sub-sec. 1 of which lays down that "a tenant who ceases to cultivate and leaves the neighbourhood shall not lose his interest in his holding if he leaves in charge thereof a person responsible for payment of the rent as it falls due". This provision is also subject, further, to the provisions of sub-sec. 2 and 3 of this section, which run (2) if the person so left in charge is a person on whom, in the event of the tenant's death, the tenant's interest would devolve, or who is to manage the holding for the benefit of the person on whom in the event of the tenant's death the tenant's interest would devolve, the tenant shall, on the expiry of a period of five years, lose his interest in his holding, unless he within such period, resumes cultivation thereof,and such interest would devolve in the event of his death.- " (3) If the person so left in charge is not a person mentioned in sub-sec. (2)the tenant shall, on the expiry of the period for which he could have sublet be presumed to have abandoned his holding, unless within such period he resumed cultivation thereof". As provided by sub-sec. 4 tenant shall be presumed to have "abandoned" his holding only when he ceases to cultivate and leaves the neighbourhood otherwise than in accordance with the provisions of sub-sec. (1) referred to above. It would thus be clear that only going away from the village does not automatically finish and extinguish the interest of a tenant in his holding. It is when he not only ceases to cultivate and leaves the neighbourhood but also does not make any arrangement for the cultivation thereof and for the responsibility of the payment of the rent thereof as it falls due that he can be deemed to have "abandoned" the holding. The plaintiffs have never come in his case with this allegation. What they have said is, as would be apparent from the Para No. 3 and 4 of the plaint reproduced above, that Gangaram went away leaving the land after cultivating it for some months" The taking of the possession by the defendant Ladhuram has also been alleged to have been done on Posh Sudi Punam i. e. in the middle of the agricultural year of the tenancy created by the plaintiffs themselves in favour of Gangaram the brother of the defendant. There could not naturally arise any question at that time of his (Gangram) ceasing to cultivate the disputed land and not making any arrangement for the payment of rent as it fell due to the plaintiffs. Nor have they put up any such case. Rather, Gangaram has come into the witness box and denied that he ceased to cultivate the land and left the neighbourhood without leaving it in charge of any person responsible for payment of the rent as it fell due. This is implied in his clear averment that he and the defendants were real brothers and had been living and cultivating the land together. Mere going away of Gangaram from the village therefore cannot be called to be an act of abandoning the disputed land. The learned court have therefore clearly mistaken the mere going away of Gangaram from the village during the currency of the lease as an abandonment. This goes at the very root of the case. Unless the disputed land could be treated as having "abandoned" by Gangaram, the defendant, admittedly his real brother, could not be called to have trespassed over it. Besides a "trespass" is, according to Ghose C. J. on the authority of Pollock On Possession, page 145 and 147 (vide page 28 of Law of Possessions by Krishana Sawami 1940 Edition) "as wrong to another's possession, and injury to a possessory right only". The plaintiffs were admittedly not in possession of the land; nor could they be called to be in constructive possession thereof, nor entitled to immediate possession thereof, unless the land was taken to have been "abandoned" by Gangaram. The defendant Laduhram has therefore been wrongly held to be a trespasser by the learned lower courts and for this very reason the order of ejectment under sec. 183 Rajasthan Tenancy Act passed against him is also erroneous in law. When he could not be styled as a trespasser and ejected as such, there cannot arise an occasion for awarding any damages also to the plaintiffs. The judgments and decree of the learned lower courts being therefore quite erroneous, in, and contrary to law, cannot be upheld. They have failed to appreciate that the plaintiffs had not been able to prove their case and were only misguided by the fact that the defendant had not been able to prove the case set up by him. The case of the defendant could be examined only when the plaintiffs had proved their case, which as stated above they have failed miserably to do learned lower courts thus have not only clearly acted contrary to law but have committed a substantial error in the procedure prescribed. The appeal is, therefore, accepted, the judgments and decrees of the learned lower courts are set aside, and it is directed that the suit of the plaintiffs shall stand dismissed. Consequently the plaintiffs' appeal shall also be dismissed. .
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