- (1.) THESE two second appeals raised the same point of law and have been preferred against the judgment and decree of the Additional Commissioner No. 1, Jaipur dated 17. 3. 60 and 25. 5. 60 and therefore this single order disposes of both these appeals.
(2.) BRIEFLY, the facts of the case are that the appellants are the khatedar tenants of Khasra Nos. 1289,1307, 1318 and 1309 consisting of 4 bighas and 15 biswas known as Badwali well situated in village Lalsot. It is alleged by the plaintiff appellants that this land was let out to the defendants respondents for one year in Smt. 2013 which holding the defendant surrendered in Smt. 2014 to the appellants, but in the same year at the time of Kharif cultivation the respondents forcibly occupied the land. They should be ejected. The respondents denied the forcible possession of the land in dispute but claimed that they were tenants of the holding in dispute for a long time. The Assistant Collector, Dausa tried the suit and rejected it on the ground that the plea of surrender alleged by the appellants was false and the respondents were in possession of the holding as tenants. In appeal before the first appellate Court the appellant's application for grant of relief under Sec. 209 of the Rajasthan Tenancy Act (hereinafter called the Act) was disallowed and the appeal was rejected, hence the second appeal. It was contended by the counsel for the appellants that both courts wrongly dismissed the appellant's suit for ejectment of the respondents as trespasser or his tenant and the appellant should have been given the appropriate relief under the Tenancy Act. In support the counsel cited RRD 1963 page 132 and RLJ 1963 page 148. The counsel for the respondents strenuously argued that the appellants filed the suit against the respondents treating them as trespassers and they can not obtain a decree for ejectment of the respondents who proved to be lawful tenants in possession of the holding without an application under sec. 209 of the Act. The respondents were not given the chance of defending the suit of the appellants as a tenant. They only put forth their defence in the suit of the appellant treating them as trespassers. Unless this plea was raised at the earliest, and opportunity was given to the respondents the suit of the appellants cannot be decreed at any stage. In support he cited A. I. R. 1954 Andhra page 29 which states that" no amount of evidence can be looked into upon a plea which was never put forward. He further distinguished the two cases of Ram Kumar vs. Dhananjaylal and Nandgiri vs. The Board of Revenue, decided by the High Court. We have given careful consideration to the arguments advanced by the two learned counsel and perused the record. It is an admitted fact. The judgment of the Assistant Collector, Lalsot wherein the status of the appellant has been conceded to by the counsel for the respondent. It is also clear that the counsel for the appellant has realised the weakness of his plea of surrender of the disputed holding by the respondents and has not pressed it before us. Further there is a concurrent finding of both the subordinate Courts that the the story of surrender of disputed land by the respondents was a myth, and from this decision of the two Courts it clearly emerges that the status of the respondent was not that of trespasser but of a tenant in lawful possession of the land in dispute. The question before us is simply this, whether in the present suit the plaintiff appellant can succeed in obtaining a decree of ejectment of the respondents as tenants when he initially branded them as trespassers. The ruling of the High Court it Nandgiri vs. The Board of Revenue reported in R. L. J. 1963 page 148 cited by the counsel for the appellant only goes to show that in a simple suit for possession, a decree could be given by the court against the persons found in possession of the land as tenants. The case of Ram Kumar vs. Dhananjaylal, reported in R. R. D. 1963 page 133 is an authority for saying that a suit for possession could be decreed by the Court without complying with the formality of filing an application under sec. 181 of the Act which was only a convenient way of seeking relief by the land holder without in any way derogating from his right to bring a suit straightaway. This ruling further held that an application under sec. 209 of the Act is not necessary if the facts stated by the plaintiff without quoting the provision of law under which they claim the right are sufficiently declared. Applying the ratio of the decision of these cases to this case we are clearly of the opinion that the relief required by the plaintiff appellant could be given to him as he is admittedly a Khatedar tenant of the holding in dispute for ejectment of the defendant respondents, but there is much force in the contention of the counsel for the respondent that if this procedure was adopted, he would be denied the opportunity of resisting his ejectment on some grounds available to him under the law, such as that he acquired Khatedari right over the land in the meantime or that the appellant already has a holding in excess of the area prescribed for the District and various other grounds. It is true that this new plea of ejectment of the plaintiff respondents as tenant has only now been taken by the counsel for the appellant, as against the original plea for ejectment of the respondents or trespassers. The question whether the respondents can be ejected as tenant has not been properly tried by both the subordinate Courts and no proper opportunity seems to have been given by both the subordinate Courts. In fact the wisdom of ejecting the respondent as tenant dawned on the appellant in the first appellate Court where they made an application under sec. 209 for claiming the relief required. It is not understood why the Additional Commissioner, Jaipur refused the request and remanded the case to the trial Court for amendment of the plaint and framing of the necessary issues and giving opportunity to the parties to eject the defendant as tenants. This could have been easily done by the first appellate Court. Instead it rejected the appeal out right. This decision of the first Appellate Court in our opinion was patently erroneous. If they could not give the relief required by the appellant it should have remanded the case to the trial Court instead of driving the parties to a prolonged litigation. It more or less compelled them to file a fresh suit for the same cause of action. In the circumstances these appeals of the appellants must succeed and the decision of the first appellate court as well as the trial court is set aside and the case is remanded back to the trial Court for allowing the appellant to claim the relief required under sec. 209 of the Act by the amendment of the plaint and after framing the necessary issue the parties may be given the opportunity to adduce whatever evidence they wish to produce which is permissible under the provisions of the law of evidence and after hearing the parties the trial Court should pass fresh judgment. .;