Decided on March 24,1955



Bapna, J. - (1.) THIS is a petition under Art. 226 of the Constitution.
(2.) THE non-petitioner Girwar made an application to the Sub-Divisional Officer.Tijara that he had been wrongly dispossessed by the present petitioners Mohur Singh and Harphool from his holding. THE defence of Mohur Singh and Harphool was that Girwar had voluntarily relinquished possession of the land on the29th of March, 1951 and in proof thereof produced a document Ex. D. 1. Girwar admitted that one document had been executed under misrepresentation but that document was not Ex. D. 1. THE learned S.D.O. after enquiry found that Ex. D. 1 was genuine and that their was no voluntary relinquishment of the holdings by Girwar. He consequently, by his order dated the 19th of October. 1953, directed reinstatement of Girwar. Mohur Singh and Harphool filed a revision to the Board of Revenue. It was rejected on several grounds. The first ground was stated to be that sec 7 clause 5 of the Rajasthan(Protection of Tenants) Ordinance only applied to a relinquishment made after the expiry of the term of the lease and that in the present case the alleged relinquishment took place before the expiry of the fixed lease. I he tenant was entitled to disregard his conduct and could claim for protection under the Ordinance. Reference was made to a decision of the Board in case of Prasadi vs. Hatti in which it was held by the Board that a tenant who was admitted to be a tenant for a fixed term of the lease could claim reinstatement even if he has voluntarily given up the holding before the expiry of the lease provided that he sought reinstatement within three months of his dispossession. The second ground on which the learned Board of Revenue declined to interfere was that relinquishment could only be completed by delivery of possession and that in the present case it had not been proved that physical possession over the land in dispute had been made over to Mohur Singh and Harphool in pursuance of the document executed by Girwar. It was held that in the absence of delivery of possession, there was no relinquishment by the tenant. Learned counsel contended that the view of law taken by the Board of Revenue was not correct It was also argued that the learned Board of Revenue had over-looked important evidence in coming to the conclusion on the second point. It may be stated at once that sub-sec.1 of sec.7only applies when a tenant was ejected or dispossessed and therefore voluntary relinquishment whether before or after the expiry of the lease would not amount to either ejectment or dispossession and would not assist the tenant who may after the said relinquishment change his mind and try to seek the assistance of the Sub-Divisional Officer for re-instate-ment under sec. 7 of the Ordinance. The second ground however, does not suffer from any mistake of law. The Board was quite right in holding that mere execution of the document unaccompanied by delivery of possession of the holding would not amount to relinquishment. The words used in sub-sec. 5 sec. 7 are "voluntarily gives up the holding." which indicate that actual physical possession should be redelivered to the landlord. The word 'surrender' also indicates the giving up of the possession of the property under the lease. A document reciting that he was giving up the land would not amount to surrender unless it was accompanied or followed by actual delivery of possession of the property. The learned Board of Revenue has found on a perusal of the evidence that in the present case the actual possession continued to remain with the tenant even after the execution of the deed. That is a finding of fact. The contention raised by the learned counsel that that finding is contrary to weight of evidence did not call for interference by this Court as the matter related only to appreciation of evidence. It was however, argued that important evidence led by Mohur Singh and Harphool had been over-looked. That contention has not been substantiated. A perusal of the judgment shows that the Board applied its mind to the evidence before it and has referred to the statement of Mohur Singh himself and other witnesses led by him and a critical examination thereof led the Board to discard that evidence. This court does not sit in appeal over the Board of Revenue and therefore, the finding if based on considerations which are relevant and are available on the record will not be interfered with On a finding at which the Board arrived on the second point it could come to no other conclusion that the entry by Mohur Singh and Harphool amounted to a dispossession of the tenant and that the provisions of sec. 7 were applicable in the present case This petition has no force and is dismissed with costs;counsel's fee being assessed at Rs. 50/-. ;

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