- (1.) THIS is a second appeal filed by the appellants against the judgment and decree passed by the Commissioner, Udaipur, dated 30th March, 1960. Briefly the facts of the case are that the plaintiff respondent filed a suit against the defendant-appellants for ejectment from the Hawala land consisting of 27 bighas and 5 biswa, in village Sameliya, Tehsil Garhi, District Banswara. The respondent claimed that the appellant Nos. one to five were given the suit land on a lease of five years initially which was extended for further one year. The other appellants Nos. six to sixteen Were not admitted by the respondents but they came into possession of this land in an unlawful manner as trespassers. He further prayed for ejectment of the appellants. The present appellants defendants resisted the suit on the ground that they were tenants of the holding in dispute from a very long time and no lease was ever given to them. They also challenged the respondent's suit on various grounds, such as barred by limitation, filed without notice being served on them and that the. lease was not registered etc. The Sub-Divisional Officer tried the suit. He also allowed the respondent to amend the suit in order to enable him to claim ejectment of the appellants u/s 180 of the Rajasthan Tenancy Act and finally decreed the respondent's suit for ejectment holding the appellants as trespassers. In appeal before the Divisional Commissioner, Udaipur by the present appellants the judgment and decree of the trial court was upheld.
(2.) BEFORE the learned counsel for the appellant could reopen the case the learned counsel for the respondent raised a preliminary objection against some grounds taken in the second appeal by the appellants by saying that these were new legal points which were never taken by the appellants in the trial court or in the first appellate court. The concurrent finding of facts by the two subordinate courts could not be challenged by the appellants in the second appeal. If any new plea is to be taken it has to be done with the permission of the court. In support he cited AIR 1960 Supreme Court, P. 213 and AIR 1961 Supreme Court P. 1007. He also drew the attention of this court to the provisions of Order 41, Rule 2. The learned counsel for! the appellants could not give any satisfactory reply to these preliminary objections raised by the learned counsel for the respondent. He, however, argued that there were certain legal flaws that were committed by the subordinate courts which prejudiced the appellant's case and therefore he was free to take these legal pleas in the second appeal and also the fact that certain changes in the law have subsequently come in and the courts were bound to take cognizance of the changes of law at the time of disposing of a pending case before them. In support he cited AIR 1959 Supreme Court, P. 699. The learned counsel for the appellant therefore raised the following new points specifically at the time of arguments which were not previously taken before the two courts below. The learned counsel for the appellants' first contention was that this suit by the respondent ex-jagir|dar was filed long before his jagir was resumed. But it was decreed after the resumption of his jagir and therefore under the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952, the respondent was not entitled to maintain this suit even though the disputed land related to Khudkasht. In support he cited RRD 1957, P. 281. His second contention was that u/s 23 (1) of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 the respondent should have sought the declaration of his khudkasht land in the absence of which this suit was not maintainable. The learned counsel for the respondent replied by saying that this question of law was never raised by the defendant appellant in the lower court. The counsel argued that no doubt u/s 22 of the Jagir Act, the ordinary land vested in the State on resumption, but u/s 28 of the same Act an ex-jagirdar was entiled to retain his kundkasht land and no declaration was at all necessary. He pointed out that in the respondent's plaint it was specifically mentioned that the disputed land was his hawala land which ordinarily means his Khudkasht land and he was entitled therefore to maintain a suit for ejectment against the appellants who have wrongfully occupied the land. We have considered these two contentions of the counsel of the appellants together with the reply given by the counsel for the respondent. Relying on the authorities of the Supreme Court cited by the counsel for the respondent we are inclined to hold that new points of law cannot be raised in second appeal which were totally not raised before the subordinate courts. This would mean that the other party is bound to be taken by surprise if such new pleas are entertained by the courts in the second appeal and at the same time there would be nothing on the record to base ones finding on these matters when they are raised before the appellate court. Clearly the appellant never took this plea that the suit of the respondent was not maintainable except in a general manner under para (7) of his written statement which was rather vague in the absence of particulars and this plea of the appellants in these two contentions is definitely a new one. At the same time there is no force in the contention of the counsel for the appellants that after the resumption of Jagir an ex-jagirdar cannot maintain a suit of ejectment against his tenants or trespassers regarding his khudkasht land. This is clear from the facts that u/s 28 of the Jagir Act all other land vests in the Government but u/s 28 of the same Act kundkasht lands are allowed to be held by the jagirdars which are recorded as such. In this case the land in dispute is admittedly a khudkasht land as is evident from the first para of the plaint and the appellant defendants have never raised this plea that the land in question was not a khudkasht land. Perhaps if this question was raised by the appellants that the suit land was not a khudkasht land and an issue was framed and tried and after that the trial court came to the conclusion that the land was not a khudkasht land the suit against the appellants would have abated long time back. But as the pleadings stand in the absence of specific denial by the appellants that the land was not a hawala it would be considered as a Khudkasht or hawala land of the respondent and therefore, the suit was clearly maintainable. R. R. D. 1957 P. 281 cited by the counsel for the appellant is not an authority on this point and is clearly distinguishable. We therefore, hold that these contentions of the learned counsel for the appellant are absolutely baseless. The third contention of the counsel for the appellant was that as some appellants were clearly admitted as tenants of the holding in dispute they could not be ejected while the Rajasthan Protection of Tenants Ordinance remained in force and the appellants clearly acquired Khatedari rights either u/s 15 of the Rajasthan Tenancy Act when it came into force or alternatively u/s 19 of the same Act and as such they could not be evicted. The counsel for the respondent however insisted and referred to his preliminary objections that this again is a new point of law taken by the appellants in the second appeal and they cannot be allowed to do so. He further pleaded that there is nothing on record to suggest that the appellants acquired Khata-dari rights in disputed land. They even produced no mutation order in their favour which would enable this court to come to a conclusion that the appellants did acquire Khatedari rights, The appellants' contention therefore was a mare conjecture and has no substance. Besides, the respondent was admittedly a minor at the time the suit was instituted and at the commencement of the Rajasthan Tenancy Act, he remained a minor. No Khatedari rights could accrue against a minor's holding u/s 46 Rajasthan Tenancy Act which restricts sub-letting in certain cases. We have considered the arguments advanced by the parties on this point also and we are clearly of the opinion that the contention of the appellants having acquired Khatedari right is no doubt a new point of law taken by the appellants in the second appeal for the first time. There is nothing on record in the absence of the mutation proceedings to suggest that the appellants did acquire Khatedari rights and as rightly pointed out by the learned counsel for the respondent no Khatedari rights could have accrued to a Khudkasht land of a minor respondent or jagirdar in view of the provisions of sec. 46 of the Rajasthan Tenancy Act, Therefore, this contention of the counsel for the appellant also has no force. The fourth contention of the counsel for the appellant was that in view of the fact that the plaintiff respondent amended his plaint and changed his prayer for relief for ejectment of the appellants to sec. 180 of the Rajasthan Tenancy Act, but the subordinate courts in holding the appellants trespassers committed a grave error of law. In fact the appellants were admittedly tenants of the holding in dispute as they were lawfully let in by the plaintiff respondent and they could not be considered as trespassers merely on the ground that they were the tenants holding over after the expiry of the lease term. In a recent ruling of the full bench of this Board, the counsel for the appellant stated, it has been held that a tenant holding over cannot be considered as a trespasser and he can only be ejected as a tenant. The decree by the two courts in ejecting the appellants as trespassers was clearly bad in law and should be set aside. The learned counsel for the respondent replied by saying that it was the respondent's case that the appellant Nos. 1 to 5 were tenants and the rest were trespassers. It has been fully established by the respondent by proving the Theka contract (Ex. P. 1) its renewal on the Collector's report (Ex. P. 2) by Ex. P. 3 that the appellants No. one to five were the tenants but the others were merely trespassers as they were never lawfully entered as tenants by the respondent. The appellant defendants denied this relationship of a landlord and a tenant between the parties and on the contrary they pleaded that they were occupying this land in dispute for a long time and they failed to prove this by any evidence on record. We have examined the record and we find that the appellants Nos. one to five are no doubt tenants of the holding in depute and they continued to hold over the land after the expiry of the lease. But the appellants Nos six to sixteen were clearly trespassers. There is no doubt that as far as trespassers are concerned, they were rightly ejected by the two subordinate courts u/s 183 of the Tenancy Act. But in view of the facts that the appellants No. one to five were not trespassers but tenants holding over they cannot be ejected in view of the full Bench decision reported in RRD 1961, p. 109. They can only be ejected u/s 180 of the Rajasthan Tenancy Act as tenants and after taking into consideration the provisions in the aforesaid sections for ejectment of such tenants. It will appear from the record that no such enquiry was made by the two subordinate courts and the decree for ejectment of these persons in the absence of a proper issue and pleading before the trial court was clearly ill founded. This case, therefore, as far as the appellants Nos. one to five are concerned needs to be remanded to the trial court for [further enquiry and fresh order. We, therefore partially accept the appeal of the appellants Nos. one to five and set aside the judgment and decree of the two subordinate courts for ejectment and remand this case with the direction that the defendants-appellants written statement to the amended prayer for ejectment of the respondent u/s 180 of the Rajasthan Tenancy Act be taken and an issue be framed, the parties should then be given an opportunity to lead their evidence, arguments be heard and fresh orders passed. As regards the appellants Nos. six to sixteen it is rejected and the decrees of the two subordinate courts for their ejectment is confirmed. .;