- (1.) THIS is a revision application under sec. 10 (2) of the Rajasthan (Protection of Tenants) Ordinance No. IX of 1949 against the order of the Sub-Divisional Officer, Shahpura dated 29.5.54 rejecting the application of the applicants made under sec. 7 of the above Ordinance.
(2.) THE brief facts of the case are that the applicants submitted an application to the Sub-Divisional Officer, Shahpura, on 21.10.53 alleging that they were cultivating ten bighas of land in the bed of tank Raipura in village Khedaraipura in Tehsil Shahpura and that the non-applicants had forcibly ejected them therefrom on Asoj Sud 3 of Svt. year 2010 corresponding to 11.10.53. THE lower court dismissed the application holding that it was a joint application by two tenants whose khatas were separate and that the applicants have failed to make the application within 3 months from the date of their dispossession. THE applicants have thus come in revision before us. We have heard the counsel appearing on behalf of the parties. The counsel for the applicants has challenged the validity of the lower court's order on the following grounds : - (1) that the lower court has failed to appreciate the interpretation of Order 1, Rule 10 of C.P.C. (2) that the lower court has erred in deciding Asar Vad 1 as the date of dispossession and also in accepting the plea of voluntary surrender of the fields by the applicants. We have carefully considered the arguments advanced on behalf of the applicants and here also gone through the record. The law as to who may be joined as plaintiffs or applicants has been clearly stated in Rule 5 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act. Its wordings are the same as in Order 1 Rule 1 of the G. P. G. which reads as follows : - "5 (1). All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction, or series of acts or transactions is alleged to exist, jointly, severally or in the alternative, where, if such persons brought separate suits, any common question of law or fact would arise." Thus in a suit for ejectment any number of tenants may be joined as plaintiffs who are the tenants of the same land holder and who are alleged to have been dispossessed because of the same act or transaction or series of acts or transactions It may further be stated that under the old section, several persons could not be joined as plaintiffs, in one suit unless their causes of action were identical even though plaintiffs may have been injured by the same act of the defendants. The rule as it stands now provides that for several plaintiffs to join in one suit, it is not necessary that their causes of action should be identical. It however, imposes two other conditions both of which must be fulfilled in order to enable several plaintiffs to join in one suit viz: (1) the right to relief must arise out of the same cause or transaction or series of transactions or causes, and (2) the matter must be such that if the plaintiffs brought separate suits, any common question of law and fact would arise. In the present case the relief sought for arises out of the same transaction, namely, of taking possession of fields of both the applicants by the non-applicants. The first condition is thus fulfilled. The lower court was therefore wrong in holding that the applicants could not be joined in one application as applicants. As regards the point of limitation, suffice it to say that the lower court has relied on the witnesses of the non-applicants in deciding Asad Vad 1 as the date of dispossession. It has not considered the evidence of applicants' two witnessess, Lachhman and Hira who categorically denied the alleged dispossession by the non-applicants in the month of Asar. As regards Lachhman, the opposite party has alleged that he is an interested witness but no such allegation has been made against the witness Hira. The lower court did not take into consideration the applicants' contention that they had asserted Asauj Sud 3 as the date of dispossession in a previous complaint against the non applicants No. 2 and No. 3 filed before the gram panchayat. The lower court seems to have been led away by the plea of voluntary surrender of the disputed fields raised by the non-applicant No. 1 although no surrender deed had been produced. The trial court went a step further and grave wrong interpretation to the ruling given by the Board in case No. 233/Bharatpur, Mangal vs. Moola reported in 1952 R.L.W. (R.S.) The Board in this ruling has definitely stated that the plea of voluntary surrender should never be relied upon unless the fact of voluntary surrender is fully proved and the burden of proving which lies heavily on the person who alleges it. In the present case the non-applicants have not discharged this burden. Even before us the non-applicant No. 1 could not explain for what considerations the applicants surrendered the land in dispute. All that he explained was that the applicants owned too big an area to be, able to cultivate it and hence they surrendered the talavi land. Such an explanation can not be accepted in these days when a great demand for land exists, specially of tank beds which require no irrigation. The lower court was also wrong in holding Asar Vadi 1 as the date on which the applicants were dispossessed They were actually ejected an Asoj Sudi 3 as deposed by their witnesses Lachhman and Hira. Asuj Sudi 3 of Svt. 2010 corresponds to 10.10.53 and as the application for reinstatement was lodged on 21.10.53 it was within the limitation period. It however remains to be decided, over what area the applicants are to be reinstated. The statements of Ramprasad Patwari is very relevant on the point. He states that in khasra girdawari of St. 2006.7.8 and 2009 khasra No. 1 and 98 measuring 3 bighas 5 biswas were in the name of Lalu and those numbering 94 and 97 measuring 4 bighas I biswa were in the name of Harlal. It is thus evident that the applicants were cultivating only 7 bighas and 6 biswas of land. They are therefore entitled to reinstatement only over this much area. The rest of the land measuring 2 bighas and 10 biswas was cultivated by Dhula's widow and the applicants have not proved themselves either as her tenants or as her successors. Their claim for reinstatement over the whole area claimed in the application can not be granted. We, therefore, accept the application, set aside the order of the lower court and order that the applicants Lalu and Harlal be put in possession of 3 bighas and 5 biswas and 4 biswa of the former khasra numbers mentioned in their application and which in the present settlement have been given khasra Nos. 45, 46 and 59 respectively. ;