- (1.) THIS is an application in revision filed against the order of the S. D. O. Tijara dated 29. 8. 1952 rejecting the application of the revision petitioner for re-instatement on the disputed land.
(2.) THE facts of the case, briefly stated, are that the applicant Ganpat brought a regular suit on 28. 5. 1952 for recovery of possession over field Nos. 1233, 1235-36, 1244, 1248, 1251, 1229, and 1490, total area bighas 9-4, of village Jodia Tehsil Kotkasim in the court of S. D. O. Tijara on the strength of a patta given by Jai Narain for one year on 19. 5. 1951 on one-third share of grain-produce as rent, which was renewed by another patta dated 25. 4. 1952 given by Ram Devi another share-holder of the joint proprietory holding of Jai Narain. In this latter patta two more fields, named Tullawala and Meenawala measuring 4 bighas, were added. THE applicant alleged wrongful dispossession of the land by the opposite party on 18. 5. 1952 when the former was absent in another village and the latter ploughed the land. THE opposite-party replied that they had cultivated the land personally on the applicant's voluntary relinquishment in the presence of several inhabitants of the village and that the patta dated 25. 4. 1952 was signed by Mst. Ram Devi alone when she was in an unconscious state of mind. THE suit was later converted into an application for re-instatement under sec. 7 (2) of the Rajasthan (Protection of Tenants) Ordinance. THE learned S. D. O. held, after enquiry, that the last year's tenancy determined with the execution of the new lease and the applicant's acceptance of the new tenancy and that the applicant did not assert his entering into possession of the land in the presence of his rights under the new lease in consequence of which he was not a tenant of the land by whom the rent was or would be payable according to the definition of 'tenant' under the Act and the contract remained inchoate and not complete. THE S. D. O. therefore, dismissed the application under his order dated 29. 8. 1952. The grounds in revision are : - (1) The tenancy did not terminate with the expiry of the term of the first lease, as possession was not actually surrendered. (2) There is no direct evidence to prove voluntary relinquishment, the burden of proving which lies on the landlord. I have heard the counsel for either party and looked into the evidence on record. Sec. 7 (5) of the Rajasthan (Protection of Tenants) Ordinance, provides as under : - "nothing in this section shall apply to a tenant who has been dispossessed of his holding or a part thereof on the sale thereof in execution of a decree for the recovery of arrears of rent or to a tenant who has voluntarily given up the holding on the expiry of the term of his lease. " In view of the above sub-section tenancy once created cannot be held to have determined by the mere fact of termination of lease unless the tenant has voluntarily surrendered the holding. In this case some oral evidence has been adduced to establish voluntary surrender but the learned Sub-Divisional Officer has not appreciated the evidence, which is a flaw, as also admitted by the learned counsel for the opposite-party. The issue of voluntary surrender should, therefore, be throughly examined before delivering a judgment in this case. With the concurrence of my learned colleague, I accept the revision application, remand the case to the lower court for pronouncing a fresh judgment after examining the issue of termination of tenancy according to the provisions of sec. 7 (5) of the Ordinance, in the light of the evidence already on record and such further evidence as the parties may like to adduce on the point. Kishen Puri - I concur. .;