Decided on June 06,1955

OTA Respondents


- (1.) THIS second appeal arises out of an appellate order of the Additional Commissioner, Jodhpur, dated 13-10-1955 in a suit for ejectment of a trespasser. The appellant Rao Raja Narpat Singh filed a suit in the court of the S. D. O. Bali alleging that the respondent had taken unlawful possession of field Nos. 378 and 378/2, measuring 22 bighas 15 biswas of which he is the land holder and as such he should be ejected from the said land and a decree for damages and rent for the period in occupation may be granted in his favour. The defendant respondents averred in their written statement that they were the declared bapidars of khasra No. 366/3, and 378/2 measuring 25 bighas and that the land in dispute bad been given to them by the appellants as fields No. 366/3, and 378/1, and they are therefore, in possession of that area. In his deposition made before the trial court on 29-10-1950 Otarmal respondent admitted that he had not taken possession nor he had cultivated the fields Nos.378 and 378/2. The trial court framed certain issues and after recording the evidence of the parties on those issues granted a decree for ejectment of the respondent. On an appeal before the Additional Commissioner, he, however, reversed the order of the trial court and dismissed the suit. Hence this second appeal before us.
(2.) WE have heard the parties and have also examined the record of the case. In view of the orders that we are making in the case we do not consider it necessary to discuss the detailed facts at this stage. Suffice to say that the lower appellate court while reversing the decree and the judgment of the trial court has not given any reason what-so-ever for arriving at a different finding). In fact, the judgment given by the lower appellate court is not judgment in the eye of law. The evidence led by the parties was examined critically by the trial court, but the lower appellate court did not at all discuss it nor gave any reasons for drawing different conclusions. Obviously the point in dispute was whether the respondents had taken unlawful possession of field Nos. 378, 378/2 of village Paldi or they were in possession of these fields by virtue of the bapi patta held by them, or that there had been some confusion in quoting the field numbers in the bapi patta. The trial court relying on the evidence led by the plaintiff passed a decree of ejectment. The lower appellate court without giving any finding as to whether the respondents were entitled to possession of the fields in dispute in addition to the land claimed by them as their bapi obviously based its conclusions merely on conjectures and contented itself by observing that the matter whether respondents were bapidars or ghair-bapidars was not of any significance so long as the R.P.T.O. is in force. No doubt sec. 7 of the R.P.T.O. prohibits the ejectment of tenants as such irrespective of their status as bapidars or ghair-bapidars, but a person in order to be eligible to the benefit of this provision has to prove that he is the 'tenant' of the land in dispute. The lower court seems to have arrived at its conclusions only on the basis of the khasra-teep entries in which the opposite-party is recorded as the ghair-bapidar in respect of the land in dispute without referring to other evidence, As already observed above the defendant respondent's case was not that he was the ghair-bapidar of the land. He had only alleged that he was recorded as the bapidar of some other land in the village whereas the land in dispute was held by him under that bapi patta. As held in A.I.R. 1954, Supreme Court 758 "The Court on failure of the defendant to prove his case cannot make out a new case for him which is not only not made in the written statement, but which is wholly inconsistent with the title set up by the defendant. Thus the; lower court failed to apply its mind to the determination of the point involved in the case viz. whether the respondent is a trespasser or a tenant of the land, in dispute and its decision cannot be upheld, WE, therefore, allow this appeal, set aside the order of the lower court and remand the case to it for considering the entire evidence and deciding the case afresh in the observations made above.;

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