- (1.) THIS is a second appeal against an order of the Additional Commissioner, Jaipur dated 27-11-54 in a case regarding ejectment of a trespasser.
(2.) THE appellant Raghunath Singh filed a suit in the court of the Assistant Collector, Rajgarh alleging that he is the owner of the land in dispute and that the respondent had forcibly occupied his land and cultivated it during 1948, 1949 and 1950 during his absence on military service, that in 1951 the respondent voluntarily relinquished the said land and the appellant cultivated it but the respondent subsequently overturned his crop and occupied it forcibly. THE respondent denied the allegation and alleged that he had been in lawful possession as a tenant of the appellant and had never surrendered possession to the appellant. THE S.D.O. held that the respondent was not a trespasser but granted a decree of ejectment on the ground that even as a tenant he was liable, to ejectment. On respondent's appeal against this judgment, the learned Additional Commissioner Jaipur reversed the decree of the trial court. Hence this second appeal before us. We have heard the counsel for the parties and have also examined the record of the case. From a perusal of trial court's judgment, it appears that the said court did not find the respondent as a trespasser but gave a decree for his ejectment on the ground that the appellant was a military employee and under Government of Rajasthan, Revenue Department notification No. F. 1(41 Rev./1/51 dated 11-1-51, all lands belonging to persons who are in the military employment of the Government have been exempted from the operation of the Rajasthan (Protection of Tenants) Ordinance, 1949 and as such the respondent, even though he may be a tenant was liable to ejectment from the land. We have no hesitation in holding that this view is erroneous and cannot be upheld. As observed by the learned Additional Commissioner in his judgment, the appellant had never sued for the ejectment of the respondent as a tenant nor was this point in issue before respondent as a tenant nor was this point in issue before the trial court. He came with the definite allegation that the respondent was a trespasser. It was therefore wrong to hold that the respondent though not a trespasser was still liable to ejectment as a tenant, without giving him an opportunity to contest it. There are certain conditions laid down in the Alwar State Revenue Code for the ejectment of a tenant and it is open to the tenant sought to be ejected to contest his liability on a number of grounds. It is evident that this opportunity was not made available to the respondent in this case. The trial court evidently made out a new case for the appellant which it was not authorised to do. It was held in 1954 A.I.R. 758, S.C., Sheodhari Rai vs. Suraj Prasad Singh, that - "Where the defendant in his written statements sets up title to the disputed lands as the nearest reversioner the court cannot, on failure of the defendant to prove his case, make out a new case for him which is not only not made in the written statement but which is wholly inconsistent with the title set up by the defendant, namely, that the defendant was holding under a Shikmi settlement from the nearest reversioner." This applies with equal force to the pleadings of the plaintiff. It is evident that the appellant failed to prove that the respondent was a trespasser and that he had voluntarily surrendered possession of the land in dispute in Svt. 2007 and re-occupied it unlawfully. On the basis of the evidence of the parties, both the lower courts have held that the respondent was a tenant of the land in dispute and not a trespasser. We do not find any valid ground to interfere with or upset this concurrent finding of the lower courts on this point. No doubt, the Government notification of 11-1-51 mentioned above, excludes land belonging to a person in the military employ of the Government from the operation of the Rajasthan (Protection of Tenants) Ordinance, but it does not however follow that proceedings for ejectment of a trespasser can ipso facto by converted into those for the ejectment of a tenant in the case of a landlord who is in the military employment. The lower appellate court was therefore, justified in reversing the decree of the trial court and dismissing the suit. The appeal is therefore without substance and is hereby rejected.;