- (1.) THIS is a second appeal by the unsuccessful plaintiffs against the judgment and decree of the learned Additional Commissioner, Jaipur, dated 15. 1. 60 by which he has set aside the judgment and decree of the Assistant Collector, Dausa, dated 28. 5. 59 who had decreed the suit for possession in favour of the appellants under sec. 183 Rajasthan Tenancy Act 1955. We have heard the learned counsel for the parties and examined the record. The suit of the appellants was that the disputed land, Khasra No. 1664 1 Bigha, situated in the town of Lalsote was in their Khatedari and possession for generations and that they themselves had been paying the rent to the Government for the same ; that on Ashad Sudi 10 Smt. 2013 the respondent had forcibly taken possession of the same and did not allow the appellants to cultivate it, that the respondent had reaped both Rabi and Kharif harvests therefrom and has been still continuing possession over the disputed land as a trespasser; that the appellants many a time requested the respondent to leave the land as well as pay them the compensation and last time on 17. 7. 57, but that the respondent had flatly refused to do so. The prayer therefore was to give a decree for ejectment as well as damages amounting to Rs, 150/-against the respondent. All these allegations were denied by the respondent who alleged his cultivation over the disputed land as well as the payment of the rent thereof for a very long time. After framing necessary issues, the important amongst which were (1) whether the disputed land was in possession and Khatedari of the appellants, (2) whether the respondent had forcibly dispossessed the appellants on Jeth Sudi Punam Smt. 2012 and had been continuing possession thereon since then, and recording the evidence of the parties the learned trial court decreed the suit. In appeal the learned Additional Commissioner observed that the appellants Misrilal having himself admitted in his statements as a witness that the disputed land had been let out by him to the respondent in Smt. 2012 by whom it was cultivated during that year, it was not possible to come to a finding that the respondent had entered upon the land unlawfully, and therefore held that the suit under sec. 113 Rajasthan Tenancy Act was not maintainable. He, having directed the appellants to proceed under sec. 180 of the Act, if they deemed necessary, dismissed the suit. In this second appeal the learned counsel for the appellants has assailed the judgment of the learned lower appellate court on the ground that the same was passed contrary to the weight of evidence on record and that the statement of the appellant Mishrilal had been misread so far as it related to the admission that the disputed land had been let out to the respondent by the appellant himself in Smt. 2012. A further argument is that when the disputed land had been entered in the Khatedari of the appellants in Smt. 2012 in the Revenue Records and the same had not been disproved by the respondents the learned Additional Commissioner should have considered this aspect of the case also. In reply it has been urged on behalf of the respondent that neither the appellants were entered as Khatedars in the Revenue Records nor had their Khatedari been proved in any other way, nor the forcible dispossession as alleged by the appellant had been proved.
(2.) AS the judgments of the lower courts are different from each other and the judgment of the lower appellate court has been alleged to be contrary to the weight of evidence on record, we have ourselves gone through the entire evidence on record alongwith the learned counsel for the parties. Three witnesses Rameshwar, Madholal and Moolchand have been examined by the appellants, besides the appellant Mishrilal himself, on their behalf. In his statement the appellant Misrilal has stated that, the disputed land was in his Khatedari and he paid the rent therefor and that when he went to cultivate the same in ASad Smt. 2013 the respondent turned out his bullocks and plough just after he had taken out only 5 or 7 "koods or Hal". In cross-examination he admitted that in Smt. 2012 the respondent himself cultivated the disputed land at the instance of the appellant Mishrilal himself, not in AShad Smt. 2013 as alleged by the appellants in their plaint but in Smt. 2012 itself. That he continued in the possession of the land in Smt. 2013 also is quite clear from the plaint itself and the learned counsel appearing for the appellant too has admitted it at the bar. The other three witnesses produced on their behalf only stated that the respondent had not allowed the appellant Misrilal to cultivate the land in AShad Smt. 2013 and had asked him to go out therefrom. These statements also do not in any way change the above position. What mis-reading is alleged on behalf of the appellants is that in his cross-examination the appellant Mishrilal had also stated that in Smt. 2012 the respondent had been admitted on "adhi Shirakat Sajha" which has not been taken into consideration by the learned appellate court. Another argument advanced is that the respondent Bhonria had himself admitted in his statement that the land was in Khatedari of appellant Misrilal. The argument is that on the basis of these statements the respondent should have been treated as a trespasser for his continuing to be in possession of the land from and after 1. 7. 57, the alleged date of the arising of the cause of action. In the first place there is nothing on the record to prove that the respondent had been admitted only as "adhi Shirakat Sajhedar" and not as a tenant as alleged by him. No terms of agreement between the parties have been alleged, not to speak of being proved. No documentary evidence other than a copy of Khasra Ghirdawari of Smt. 2012 and 2013 has been produced on behalf of the appellants. The learned counsel appearing on their behalf argued that as the land has been entered in Smt. 2012 as Khud Kasht the respondent should be treated, as an "adhi Shirakat Sajhedar" and not a tenant. On what authority can it be so treated, he has not been able to make clear. Neither, the absence of the entry of the name of the respondent even as "adha Shirakat Sajhedar" in Smt. 2015 goes to belie the very averment made by the appellant Mishrilal in his statement as well as in the plaint itself. Besides from this copy of the Khasara Girdawari produced, it does not become clear whether the appellants are entered as khatedars or not thereon. The entry in column No. 7 meant for the name of the tenants is "kajormal Wagirah Baharah No. 1654". What is the entry of No. 1254 too has not at all been proved by the appellants. When the entry in Khasra No. 16 (for Smt. 2012) as against it is "khud-kasht" it can be taken to be "khudkasht" of all these persons who are entered in the column No. 7 and not of the appellants alone. This documentary evidence makes the case of the appellants worse confounded. They did not come with clean hands and alleged in the plaint that the respondent had been their tenant or "adha Shirakat Sajhedar", whatever they took him to be in Smt. 2012 nor did they state as to when the same tenancy or "sajhedari" has come to an end and in what manner. Nor did they state when the land had thereafter come in their exclusive possession and when thereafter they had been dispossessed by the respondent as alleged in the plaint. It is only during the course of cross-examination that the appellant Mishrilal has admitted, probably forced by circumstances, that the respondent had lawfully entered upon the land in Smt. 2012. Herein also he has, having first stated that the respondent had cultivated the disputed land after having been admitted by him ( appellant Mishrilal), resiled from that position and brought in the story of "adha Shirkat Sajedhari" without even explaining why he had first stated otherwise. When the story of " Adha Shirakat Sajedhar" has not been proved and corroborated by any other evidence and the appellants have acquiesced in the continuation of the cultivation in Smt. 2013 as well by the respondent, and the respondent, on the other hand, asserted that he was a sub-tenant admitted by the appellant, this story of "sajedhari" cannot be believed. Under the circumstances it is found that the learned Addl. Commissioner has rightly held the respondent to have been duly admitted by the appellants over the disputed land and rightly refused to eject him for this very reason as a trespassers therefrom. The learned trial court had taken a very wrong view of the whole matter without understanding the case correctly. It was a matter of fact that the learned trial court has mis-read the evidence. The witnesses produced by the appellants had no where corroborated the claim of the appellants that they were in possession of the land on AShad Sudi 10 Smt. 2013 and had been wrongly dispossessed therefrom by the respondent. Not at the time of arguing the case originally, but while replying to the arguments of the learned counsel for the respondent, it has been requested on behalf of the appellants that they should be given advantage of sec. 209 Rajasthan Tenancy Act 1955 and their case should be considered under sec. 180 thereof. Suffice it to say in this connection that this is a relief which cannot be granted merely for an asking. The plaintiff must present an application in writing to this effect and the courts are then required to frame necessary issues in the matter and then ask parties whether they want to produce any evidence thereon and grant necessary time to them for adducing the same. It is only after that that any action for the grant of any relief other than the one claimed can be taken by the courts by virtue of sec. 209 of the Act. Uptil this time there has been no such application presented by the appellants. But even if any such application was presented we do not think it could be entertained at this late stage, and the result would have been different, as would be seen from the ratio decided in the following cases dealing with applications under sec. 242 244 U. P. Tenancy Act, corresponding to sec. 209 of the Rajasthan Tenancy Act: - (1) In 1949 R. D. page 69, Chhitar Singh Vs. Gopal the request for an action under sec. 244 in the second appeal was refused on the ground that neither any application was filed nor could it have been accepted at that late stage. (2) In 1949 R. D. 246, Roshanlal Vs. Mangla, an application was actually presented in Second appeal before the Board by the appellant. Distinguishing the case, however, from 1943 R. D. 172, Dhurender Vs. Kunji, in the sense that the application in that case had been presented in the trial court itself, it was held that such an application was to be made in the trial court itself or at any rate in the first appellate court and there should be an alternative prayer also in the original application itself. These grounds have not been laid down positively but it is because of the absence of these circumstances that the application was rejected by the learned members of the Board deciding the case. (3) In 1949 R. D. 282, Ramrikh Vs. Dhara Singh it was laid down that the powers vesting in a court under sec. 244 were discretionary and it was not mandatory that the court must in all cases exercise its powers in favour of the plaintiff. (4) In 1950 R. D. 50, Gangadin Vs. Kashinath Chaube an application presented not in the trial court but in the first appellate court not with the memo of appeal but after the arguments were over was granted by that court and the case remanded with the direction that the plaintiff be allowed to amend the plaint and the case be disposed of accordingly. Setting aside this order, it was observed by the Board that the application was a belated one presented presumably on the realisation that the decision of the appeal would go against the plaintiff" and should not therefore have been granted. (5) In 1950 R. D. 35, Nanak Chand Vs. Shindal a suit for ejectment of a trespasser dismissed by the trial court and decreed by the first appellate court, a preliminary objection was raised in the second appeal before the Board that when suit was not maintainable under sec. 180 U. P. Tenancy Act and there was no application for conversion into sec. 183 thereof (corresponding roughly to sec. 183 and 196 of the Rajasthan Tenancy Act as they originally stood), the appeal was liable to be dismissed. Upon this the respondent filed an application under sec. 244 praying that if the court did not consider the suit to be maintainable under sec. 180, it may be converted under sec. 183. Relying upon 1949 R. D. 209 and 1949 R. D. 419 Sheo Baran Bhar Vs. Subhag Koeri and Piare Lal Vs. Sukhbesi respectively the same learned members,who after a month thereafter decided 1950 R. D. 50 and held otherwise as referred to above, notwithstanding their holding that in order to enable a plaintiff derive benefit of sec. 244, these authorities lay down, the plaintiff should make a suitable amendment in the plaint with the permission of the court or follow the procedure laid down in sec. 244, none of which conditions were fulfilled by him in the trial court, ordered that as he had presented an application before them, the same was accepted and sent to the trial court for proceeding in accordance with the procedure laid down in Sec. 244. The case was, however, remanded under O. 41, R. 23 C. P. C. (6) In 1949 R. D. 322, Ramjilal Vs. Bhagwan the question of the time of making the application or the question of making an application actually or not was not under issue. But the point at issue was whether when the plaintiff failed to state unequivocally that the defendant was a trespasser, a decree as such could be given or not. It was held that this section was intended to give the plaintiff, in certain circumstances, a relief not asked for in the plaint and that it was immaterial in such cases whether the relief ultimately given was or was not specifically asked for in the plaint. So long as the plaintiff satisfies the court that he was entitled to an alternative relief permissible under the sec. and the procedure laid down in sec. 244 had been observed the court would be fully within its powers to grant that relief. Thus even according to this decision an application should be presented in the trial court or at any rate in the first appellate court, and the whole procedure laid down therefor should be followed thereafter. (7) In 1949 R. D. 209, Sheo Baran Bhar Vs. Subhag Koer the contest, from the very beginning, in this case was that the suit brought under sec. 180 U. P. Tenancy Act, by a tenant of Sir (i. e. Khudkasht in Rajasthan) did not lie because of his being not entitled to admit a trespasser to tenancy. This legal point alone was at issue in the matter. It was decided against the plaintiff by the trial court. But the first appellate court reversed it on the ground that if it was not held maintainable the plaintiff would not be able to get the protection afforded by sec. 20 U. P. Tenancy Act, which authorised such a tenant to retain possession of his holding for 5 years from the commencement of the Act or his admission thereto as the case might be. The Board in second appeal observed that on the pleadings of the statement suit should have been brought under sec. 183 U. P. Tenancy Act, and the learned counsel for the plaintiff realising this submitted an application under sec. 244 that the suit be remanded for retrial. The Board observing that the Board have held that an application under sec. 244 can be made even in second appeal granted the application to avoid multiplicity of suits, and remanded the case for retrial under Order 41 Rule 21 (which seems to be a misprint for Rule 23) C. P. C. (8) In 1949 R. D. 419 Piare Lal Vs. Sukhbasi. A suit for ejectment of a trespasser was decreed by the trial as well as the first appellate court as a suit for the ejectment of a subtenant. It was strongly disapproved and observing that 1942 R. D. 565, Uma Shanker Singh Vs. Jaddu Singh, which authorised such an action had been over-ruled by decision in appeal No. 443 of 1944-45 (Itawah) decided on March 1, 1949/march 12, 1949 and again in 1949 R. D. 298,-Data Ram Vs. Mohanlal and it had been held that for taking an advantage under sec. 244, one of the two alternative conditions was necessary - either the plaintiff should make a suitable amendment in the plaint under the orders of the court or the procedure laid down in sec. 244, including the presentation of an application by the plaintiff, should be strictly followed. There being no such application, the decrees of the lower courts were set aside and the suit was dismissed. Thus it would seem that the grant of any relief to which the plaintiff or applicant be entitled, envisaged by sec. 209 Rajasthan Tenancy Act 1955 is not a mechanical process allowed merely for an asking at any stage, in any manner and in every case. An application in writing must be presented for the purpose before the trial court; and it is only after that, and further after the framing of necessary issues thereon, and after framing such issues, granting, on the request of either party; a reasonable time for the production of their evidence that a relief to which a plaintiff be found entitled can be granted, notwithstanding the same not having been asked for in the plaint or original application. An application for such a relief under sec. 209 cannot, and should not be, generally and ordinarily, granted when presented at a belated stage, e. g. in appeal first or second, so as to enable the plaintiff or the applicant avoid a presumable or actual dismissal of his suit or proceeding. Any departure from this rule, as in a few of the above cases, has been on consideration of special circumstances of the case, eg. when the point was contested from the very beginning and or some other provision of law necessitated it or the remand of the case otherwise as in 1949 R. D. 209 and 1950 R. D. 35. The learned members deciding 1950 R. D. 35 have themselves strongly condemned the departure otherwise only after a month thereof in 1950 R. D. 50. Without there having been submitted an application in writing, however such a request cannot be even considered, and would in every case be rejected. We, therefore, find no force in this appeal and hereby reject it confirming the decision of the learned lower appellate court. .;