- (1.) THIS appeal is directed against the order of the Revenue Appellate Authority, Kota, dated 30-7-63, whereby he reversed the judgment and decree of the Assistant Collector, Bundi, dated 29-1-63 in a suit filed by the appellant under sec. 183 of the Rajasthan Tenancy Act against the respondent.
(2.) IT was claimed by the appellant that he had come into possession of the suit land on the basis of a sale held by the Munsiff Bundi in execution of a decree against Mangilal, the original Khatedar of the suit land. The auction sale was finalised in his favour and was accepted By the Collector. The appellant who was the auction purchaser duly received the sale certificate from the Munsiff Bundi and the land was subsequently entered in his Khatedari. On 1-4-55, the possession of the land was delivered to him, but the respondent committed a trespass on the same on the plea that he was the mortgagee in possession of the said land. IT was averred that the respondent-defendant had no valid title to the land and that his possession fell within the definition of a trespasser who should be ejected The trial Court framed three issues as follows: - (1) Is the defendant in occupation of the suit land in the capacity of a trespasser since 1-4-56 and, therefore, liable to ejectment? (2) Is the defendant in occupation of the land as mortgagee in possession? If so, what would be its effect on the suit? (3) Relief? The plaintiff-appellant produced a number of witnesses and substantiated his case by a number of documents such as the sale certificate (Ex. 2), the report of the delivery of possession (Ex. 4), the acknowledgment of delivery of possession (Ex. 5), the extract from the mutation register indicating the attestation of the mutation by the Tehsildar (Ex. 6) and the extract from the Jambandi (Ex. 7 ). The defendant also produced three witnesses including himself, but had no documentary evidence to substantiate his case. The burden of his defence was that he had been long in possession of this land as mortgagee. The trial Court held that the possession of the defendant, subsequent to 1-4-56, was in the capacity of a trespasser and that he was, therefore, liable to ejectment. It also held that the defendant had failed to establish that he was in possession of the land as mortgagee in possession. It, therefore, issued a decree for the ejectment of the defendant. Having felt aggrieved by this order the defendant filed an appeal in the Court of the learned Revenue Appellate Authority who accepted the same although it held that the trial Court had correctly adjudicated issue No. 2 against the defendant. The appellate court, however, fell into an error in holding that the defendant could not be categorised as a trespasser as he had been in the possession of the land for a long time before the delivery of possession to the plaintiff-appellant. A reference was also made to the fact that the defendant was not present at the time when the possession was delivered to the plaintiff-appellant. A perusal of the impugned judgment shows that the learned Revenue Appellate Authority has not discussed the relevance and the value of the evidence produced by the plaintiff-appellant. He has been misled merely by the factum of the possession over the land prior to the delivery of the possession, in execution of a Court decree. A perusal of sec. 183 of the Rajasthan Tenancy Act clearly shows that under this section a trespasser who has taken or retained possession of any land without lawful authority is liable to ejectment on the suit of the person or persons entitled to admit him as tenant. This Section does not operate only against those persons who are admittedly trespassers. It operates against any person with a colourable pretext of right and calls for the determination of the question of title. In case it is found that the defendant has no title the suit must be decreed against him. As the section reads, it covers two types of cases : (a) trespassers ab initio viz. persons whose possession is illegal from the very beginning, (b) persons who retain possession without lawful authority after they have been asked to walk out by the land holder. Any person who is not able to justify his possession under any law should be deemed to be in possession otherwise than in accordance with law for the time being in force and should be categorised as a trespasser, as defined under sec. 5, sub-sec. (44) of the Rajasthan Tenancy Act. This section would certainly cover the case of a person who may have entered upon the land under some title, but subsequently loses this right and does not vacate the land on being asked by the land holder to do so. It is apparent that the learned Revenue Appellate Authority has not considered this aspect of the law. We, therefore, accept this appeal and remand the case to the learned Revenue Appellate Authority to re-decide the matter after examining the evidence produced by both the parties with relation to the issues framed by the trial Court. . ;