K. S. Ujwal - (1.) THIS is a second appeal under section 224 Rajasthan Tenancy Act against the Revenue Appellate Authority's judgment and decree dated 31-12-1963.
(2.) PLAINTIFF-respondent Bhanwerlal instituted a suit under sec. 183 of the Rajasthan Tenancy Act in the court of the learned Assistant Collector, Aklera alleging that the present appellant Hazari, to be hereinafter called the appellant, took over the possession of 8 bighas of land called Kesarjiwala situate in village Akawad Khurd of Tehsil Khanpur from Bhanwerlal the plaintiff, to be hereinafter called the respondent. The respondent had in this suit contended that as per Jamabandi for the period Samvat 2016 to 2019 the land in dispute was in the Khata of the respondent and the appellant forcibly occupied it in Samvat year 2012. The appellant denied plaintiff's contention and challenged the maintainability of the respondent's claim on the grounds inter-alia that the respondent had in writing surrendered the land in dispute to the erstwhile Jagirdar of village Akawad Khurd and after such surrender, the ex-Jagirdar had leased this land to the appellant by a Patta, that the appellant is in continuous cultivatory possession of the land since Samvat year 2009 and had been paying rent to the Jagirdar, through the Tehsildar, till the resumption of the Jagir and thereafter to the Government and that the respondent's tenancy has terminated. Issues, in all 5, were struck on the 18th of August, 1962. The plaintiff-respondent came in evidence supported by witness Kana, while the appellant-defendant came in evidence supported by Jagannath Singh, ex-Jagirdar of village Akawad Khurd. The plaintiff has filed a copy of the Jamabandi, while the defendant has filed the Patta held by him from the Jagirdar and the document whereby this land is alleged to have been surrendered by the respondent to the ex-Jagirdar. The learned S. D. O. , Aklera after going through the evidence and hearing the parties, decreed the respondent's suit by his judgment and decree of 31st December, 1962. The appellant approached the learned Revenue Appellate Authority, Kota, in appeal, but the appeal was rejected by the learned Revenue Appellate Authority, Kota, by his judgment dated 31-12-1963. Aggrieved by the orders of the two lower courts, the appellant has come in this second appeal on the ground that the Lower courts had erred in decreeing the respondent's suit because the appellant had succeeded in proving that he was in cultivatory possession of the disputed land since Samvat 2009 as a Khatedar and that he has succeeded in proving that the land remained abandoned for a long time after the demise of the respondent's father and on account of the inability of the respondent's mother to arrange for the cultivation of this land, she surrendered her rights to the ex-Jagirdar. It was contended that this second appeal should be accepted because the appellant had succeeded in proving surrender. We have heard the learned counsel for the parties and examined the record. While arguing the case, the learned counsel for the appellant attacked the decisions of the two lower courts on the ground that they had erred in not taking note of the fact that the appellant had succeeded in establishing with the help of his oral and documentary evidence, that this was a case of abandonment of land within the meaning of sec. 60 of the Rajasthan Tenancy Act or in the alternative a case of surrender within the meaning of sec. 55 of the Rajasthan Tenancy Act It was further contended that the fact of abandonment is established by the plaintiff-respondent's own admission. We first propose to examine the plea of the abandonment taken, manifestly, for the first time in this second appeal. The pleadings of the party do not contain an averment by the appellant to the effect that the respondent had abandoned the tenancy. A bare perusal of sec. 60 would show that abandonment can be presumed only when the party pleading it succeeds in proving that a tenant has ceased to cultivate the land and left the neighbourhood. A party desirous of making out a case of abandonment has to plead it before the court of first instance and whereas in the present case, it has failed to do so, it would not be permitted to raise this plea in second appeal. The provisions of rule 1 (2) of Order 41 require the setting out of the grounds of objection to the decree in the memorandum of appeal and Rule 2 debars the appellants from being heard in support of any grounds of objection not set forth in the memorandum of appeal. On going through the memorandum of appeal filed by the appellant in the first appellate court, we find that this ground of abandonment was not raised. The plea of the appellant's counsel that he can at any time attack the lower courts decree on legal grounds, would not help him in the present instance because the plea of abandonment is not merely a legal objection. Abandonment in the circumstances of the case is a question of fact and because this plea was not taken in the court of first instance or the first appellate court and no issue has been framed, it cannot be allowed to be raised in this second appeal and the court would not be acting justly if it allowed its decision to rest on this ground because the other party has not had sufficient opportunity of contesting the case on this ground. A perusal of section 55 of the Rajasthan Tenancy Act would show that the plea of surrender is also a plea based on averments of fact. In the written statement the appellant had said that the respondent had surrendered this land. No evidence was led to prove the surrender of this land by the defendant. The document filed by the appellant to support his contention purports to have been executed by the plaintiff's mother. Even if the documents were proved to have been executed by the mother, the evidence could not have been considered sufficient to prove the contention of the appellant in the written statement. Moreover the lower courts have held that the appellant has failed to prove this document and failed to prove surrender. This Board would not in second appeal interfere with this well considered decision of the two lower courts holding that the appellant had failed to prove surrender. From what has been stated it is clear that the appellant has not succeeded in proving his case while the respondent has, to the satisfaction of both of the lower courts, proved the facts which entitled him to a decree. This second appeal is, therefore, dismissed with costs. . ;