- (1.) THIS is revision under sec.10(2) of the Rajasthan (Protection of Tenants) Ordinance, 1949, against an order of the S.D.O., Rajgarh, dated 30.11.1950, refusing protection to the applicant under sec. 7 of the Ordinance. THIS revision was decided by the Board of Revenue on 28.6.1952, along with revision petition No. 221/Alwar of Svt. 2006-7 and the order of the trial court was set aside and the applicant Harji along with Kanhaiya who was the applicant in the other case was ordered to be reinstated. The Board in its decision held that "the plea of voluntary surrender set up by the opposite party was not proved as the learned Revenue Minister had sanctioned the auction and it was as a result of the auction that Bansi and Bhagirath were given fresh Patta of the land as a result of the grant of the Patta to Bhagirath and Bansi, Harji and Kanhaiya were dispossessed. As the order passed by the Revenue Minister to auction the land was cancelled by him, the former order became null and void and any Act done in compliance thereof could not be said to have been done under valid authority..... such dispossession obviously could not be considered to be a voluntary relinquishment either" Harji filed a writ petitioner before the High Court of Judicature of Rajasthan and the learned Judges were pleased to observe that "the finding of the Board that there was no voluntary relinquishment from the mere fact of the order of auction being subsequently set aside is erroneous on the face of it". The Board has been directed to give a fresh decision after giving a finding on the question whether Harji relinquished his holding voluntarily on 11.9.1958 on the material on record.
(2.) WE have heard the learned counsel appearing for the parties and have examined the case. Shri Ram Avtar Gupta has argued that there was no voluntary surrender, that the dakhalnama was executed by Harji under duress and that the evidence led by the opposite party for proving voluntary surrender is totally unreliable. Shri Jagdish Prasad Jain has replied that the voluntary surrender is evidenced by a document Ex. D/A which was thumb impressed by Harji, the execution of the document has been proved by the witnesses examined on the point by his client ; and that the delivery of possession accompanying this document suggests strongly that Harji voluntarily relinquished the land. The evidence led by the opposite party to establish voluntary surrender has been gone through very carefully and in our opinion it abounds in material discrepancies and inherent improbabilities. Ram Kishore D W. 2., the scribe of the dakhalnama Ex D/A has stated that Gopal and Ram Chandra Kamdars of the Thikana approached him and told him that as Bansi and Bhagirath had been granted Patta by the Thikana the witness should use his good offices in prevailing upon Harji to give up the land Harji when informed of these developments told the witness that if Patta has been granted to those persons then they may show the lands and thereafter on Harji's request he wrote out document. Ram Chandra D. W. 1 is another witness who deposes about this surrender. He states that Bansi and Bhagirath handed over their Patta to Ram Kishore and desired that it should be read over to Harji and Kanhaiya. Harji replied that he had absolutely no desire to abide by the Patta of the Jagir as the Jagir was the Muddai'. Subsequently Ram Kishore prevailed upon Harji to surrender possession. This evidence itself is clear enough to show that Harji never surrendered the land voluntarily. In fact he signified his intention to continue upon the land in spite of the Patta being granted to Bhagirath at the earliest possible moment as pointed out by Ram Chandra. Realising however the futility of offering any resistance to the delivery of posses-sion. Harji submissively acquiesced in the transaction. An act to be voluntary must proceed from ones free will or volition. Where a person's will is to resist the act, but under the existing circumstances he finds himself impotent to put up any resistance and as a result thereof he compelled to do the act it can hardly be called voluntary on his part. The context in which this alleged surrender is said to have come in also deserves some consideration. Harji had all along been in possession of the land in dispute since a number of years. Attempts were being constantly made by Bhagirath etc. to secure possession of the land and to dispossess Harji. Harji had been constantly resisting thoses moves and after some initial reverses had always been ultimately successful. For every human act there ought to be a reasonable explanation except in cases of lunatics or idiots. There should exist some rational motivating force to impel Harji to surrender the land. Viewed in the light of all these events the alleged surrender comes as an entirely misfit link in the chain of prior and subsequent events. We, therefore, hold that the plea of voluntary surrender put up by the opposite party does not at all stand proved in the case. We would, therefore, allow the revision set aside the order of the lower court and direct that Harji shall be reinstated over the land in dispute under sec. 7 of the Ordinance;