- (1.) THIS is revision application under sec. 10 (2) of the Rajasthan (Protection of Tenants) Ordinance, 1949, against an order of the S.D.O. Bayana dated 12.10.54 rejecting the request of the opposite party for protection under sec. 7 of the Ordinance.
(2.) THIS case has a very chequered history. The applicants filed an application for reinstatement under sec. 7 of the Ordinance on 8 khasra numbers 1449 to 1456 measuring 18 bighas 3 biswas alleging that they had been cultivating the land in dispute but were dispossessed by the opposite party on 2.1.53. The S.D.O. sanctioned this application the same day. On a revision being filed before this Board this case was remanded for further enquiry and fresh decision to the S.D.O. Bayana The said S.D.O fixed 29.10.52 for hearing the case and summoned the parties. As on this day the summons for the applicants were not received back, the case was further adjourned twice. Eventually when it was taken on 20.11.52 the applicants failed to appear in spite of service and the application was rejected. In consequence of the dismissal of the application of the applicants,the opposite party was ordered to be restored possession of which he had been dispossessed as a result of the S.D.O's. order dated 10.6.52. The girdavar proceeded to the spot and delivered possession to Ghasida on 9.12.52 and a dakhalnama was filed by the opposite party before the Tehsildar Weir on 15-12 52. Gordhan applicant then presented a fresh application to the S.D.O. on 6.1.53 alleging that he had been dispossessed of the land in dispute on 2.1.53 and should therefore be reinstated. The opposite party pleaded that he had never dispossessed the applicants and that he had been put in possession through the court of the Tehsildar by way of restitution as a consequence of the dismissal of the applicant's previous application. The S.D.O. held that the proceedings relating to restitution and delivery of possession to the opposite party on 9 12-52 were confined to paper only and that actual possession had never been transferred and that Gordhan etc. had actually dispossessed the opposite party on 2.1.53. He therefore, ordered reinstatement of the applicants. On a revision having been again filed by the opposite party against the above order the S.D.O. in this Board, the decision of the lower court was set aside and the case was remanded with the observation that "the patwari and the girdavar were persons who went to the spot and reported delivery of possession. If neither party examined these persons, it was the duty of the court more so as it had practically condemned their action, to examine them and to ascertain the real facts from them." In compliance of this order the S.D.O. examined Udmilal lamberdar patwari Dalchand and Mannalal girdawar Kanugo and held that actual possession had been delivered to the opposite party through the Tehsil on 9.12.52 and as such the applicants having not been in possession within three months immediately preceding the date of filing the applications under the Ordinance their application for reinstatement was beyond limitation. The applicants have now come in revision against the above order before this Board. I have heard the counsel for the parties and have examined the record of the case. The main contention of the counsel for the applicant is that the lower court had erred in holding that the application was barred by limitation, that the lower court was wrong in concluding that the opposite party had been given actual possession on 9.12.52, that the applicants were not given proper opportunity to lead their evidence in the case, as the applicants desired to produce Challan No. 233 showing payment of rent by them for Svt. 2010 but the lower court did not admit the document. Before going into the order merits of the case. I shall first examine whether the application presented by the applicants in the lower court was within imitation. It is evident from the record that the applicants first presented an application on 10.6.52 and it execution of the order of the lower court possession was transferred to the applicants. This order was however, set aside by the Board and the case was remanded for further enquiry and fresh decision. As the applicants failed to appear before the S.D.O. inspite of service their application was rejected and possession was restored to the opposite party on 9.12.52 through the Tehsil staff. The applicants filed their second application with the allegation that they had been dispossessed on 2.1.53. This they failed to prove. The lower court held that dispossession by the opposite party had taken place as early as 7.6.52 that the transfer of possession by way of restitution on 9.12.52 a did not amount to dispossession by the opposite party and that the applicants had filed to lead any evidence to show that after the restitution of the land in dispute to the opposite party on 9.12.52 they had lawfully regained possession and were dispossessed a second time on 2.1.53. The lower court has given cogent and convincing reasons for disbelieving this plea of the applicant and holding the application as time barred and I see no reason to differ from it. As regards the contention that a proper opportunity was not allowed to the applicants to lead their evidence, the counsel for the applicants referred me to an application presented on their behalf in the lower court on 22 9-54. With this application the applicants desired to produce a copy of the Tehsil Challan as also the rent receipt for payment of rent for Svt. 2010 in respect of the land in dispute. As is evident from the record, the evidence in the case had already been conclude as early as 17.8.54 and arguments had also been partly heard on 31.8.54, the lower court was, therefore, justified in refusing to admit documents produced at that late stage. However, even if these documents were admitted they could only show that the land revenue for the land in dispute had been paid by the applicants. They could not disclose anything about the actual cultivation of the land in dispute. According to sec. 167 of the Evidence Act the improper admission or rejection of evidence shall not be a ground, of itself, for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, if the rejected evidence had been received, it ought not to have varied the decision. In my opinion, even if the evidence alleged to have been rejected had been admitted it would have hardly affected the merits of the case. In the circumstances, I see no reason to interfere with the finding of the lower court on this score. The revision is hereby rejected.;