- (1.) THIS is an application in (revision filed against the order of the Anti Ejectment Officer,sikar, dated 26. 7. 1952 reinstating the opposite party, Moti on the disputed land under sec. 7 (2) of the Rajasthan (Protection of Tenants) Ordinance.
(2.) BHINWAN was the tenant of field Nos. 522 and 527, area bighas 21-15, as admitted by the applicant who is the land holder and as recorded in the Khasra Girdawar of village Dantru, tehsil Fatehpur (District Sikar) for the St. year 2008. Before his death he gave an application dated Mangsar Budi 1, Sambat 2008 (Surrender deed) to the applicant, land holder, surrendering the land in favour of the applicant with the stipulation that in case of his survival from illness the land would be restored to him (BHINWAN) and he (BHINWAN) would repay the debt which he owed to the applicant. Moti, the opposite party, applied to the Anti Ejectment Officer on 10. 7. 1952 for reinstatement on the land under sec. 7 (2) of the Rajasthan (Protection of Tenants) Ordinance as he, along with his elder brother BHINWAN who had died, had been the tenant and had been dispossessed of it by the applicant land holder. He claimed to be the adopted son of Shobha, the father of BHINWAN deceased. The trial court held that Moti was the tenant of the land and had been dispossessed of it, and ordered his reinstatement. We have heard the arguments of either party and looked into the evidence on record. The grounds in revision are : - (1) Mori is not the lawful tenant of the land and his adoption as son of Shobha father of Bhinwan was not proved. (2) The trial court had ignored the voluntary surrender of the land by Bhinwan deceased who was the tenant of the land. (3) Moti did not cultivate the land after the death of Bhinwan. The learned counsel for the opposite party argues that Moti is the successor of Bhinwan, the deceased tenant, being his co-tenant and the adopted son of Shobha the father of Bhinwan. The evidence adduced by the opposite party Moti is to the effect that he was cultivating the land along with Bhinwan and that he had been adopted as son by Shobha. Sharing the cultivation does not establish, co-tenancy unless the land Holder has accepted the person to be a co-tenant. There is no evidence to prove that the land holder had recognized Moti as a co-tenant and his name does not appear in the patwari's record as a co-tenant or even as a sub-tenant of Bhinwan. Besides, the "likhawat" regarding adoption was not executed by Shobha, but was signed by his widow Barji after the application of surrender. An adopted brother is not the legal heir under the Jaipur Tenancy Act. The learned counsel for the opposite party has raised before us the plea that Moti is the legal heir of the deceased, being father's brother's son. But no such plea was advanced in the trial court. The document about voluntary surrender has been duly proved and on its basis the contention of the applicant that he took over possession on surrender by the lawful tenant is well established, throwing away plea of dispossession taken up by the opposite party. As regards the third contention of the applicant, the deceased tenant Bhinwan cultivated the land in kharif and there was no crop in the following harvest of Rabi. The surrender was, therefore, effective from the kharif of sambat 2008. In Unhalu sambat 2008 either party claim to have cut Janti leaves and have adduced evidence to this effect, which is not conclusive. The mere cutting of the leaves of trees does not establish the cultivatory possession of the other party and may even be treated as the possesion of a trespasser in the face of the voluntary surrender. We, therefore, hold that possession of the applicant is in consequence of surrender by a lawful tenant and not due to wrongful dispossession. The learned Anti Ejectment Officer had erred in treating Moti to be the tenant and in ordering his reinstatement. The order of the lower court to reinstate Moti is set aside and possession over the disputed land, it transferred to him, will be restored to the applicant Richhpal. .;