- (1.) THIS is an application in revision against the order of the Assistant Collector, Jaipur, dated the 25th February, 1955, in a case relating to the execution of an order for reinstatement under sec. 7 of the Rajasthan Protection of Tenants Ordinance.
(2.) THE facts of the case are that the applicant filed an application for reinstatement on file numbers 31, 77, 127, 129, 289, 292, 294, 290, 251, 297, 300, 426, 441, 442 and 443 in village Tippatti, Tehsil Baswa. His application was dismissed by the trial court but in revision, the Board of Revenue in their order, dated 17th March, 1952, ordered the reinstatement of the applicant on khasra Nos. 77, 127, 129, 289 and 292. A writ petition was also filed before the High Court and the same was rejected. Accordingly the applicant moved the S.D.O. concerned to reinstate him on the land ordered by the Board. During the course of the execution proceedings Ramnath and Lalu non-applicants raised objections on the ground that they were not parties in proceedings under sec. 7 of the Rajasthan Protection of Tenants Ordinance and hence were not bound by the order, passed in that case, and that the land in dispute was assigned to them by the Thikana and hence they could not be dispossessed. THE lower court after some enquiry refused to entertain this objection and ordered the execution of the order on 13-7-53. THE non-applicants came up in revision before the Board, from where the case was remanded to the trial court to entertain the objection and decide it no merits in accordance with R. 167-168 framed under S. 8 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act. Accordingly the S.D.O. recorded the evidence of the parties and held that the non-applicant were lawfully in possession of the land in dispute by virtue of khatedari rights with possession conferred on them by the Thikana. He, therefore, allowed the objection of the non-applicants and refused execution of the order. Hence this revision before us We have heard the learned counsel appearing for the parties and have examined the record as well. As laid down in sec. 7(4) R.P.T.O. "An order for reinstatement shall be enforced as nearly as may be in the same manner as if it were a decree for ejectment but regard shall not be held to the time, if any, prescribed for the enforcement of such decree." The original application for reinstatement in the present case was filed by the applicant Balu against Jhuta, and Mahadeva, Lalu s/o not known and others. The present objections to the execution proceedings were raised by Lalu S/o Chima and Ramnath under Rule 169 of the Rules framed under sec, 8 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act. Out of these two Ramnath has since died. Lalu objector's contention before us is that after the initial wrongful dispossession by Jhuta and others, Jhuta appeared before the Thikana and expressed his inability to continue in possession of the land and after this oral surrender by Jhuta the land was assigned by Thikana to the objector and Ramnath deceased for purposes of cultivation and the obstruction or resistance to the execution of the decree was occasioned by them, claiming in good faith to be in their possession on their own account or an account of the Thikana who was not a judgment-debtor. They, therefore,prayed that the application of the decree holder should be dismissed. It is significant to note that it is not the case of the opposite party the the too was joint with Jhuta and others in wrongfully dispossessing the decree-holder. His contention, as pointed out above, is that he got it from the Thikana after Jhuta had surrendered his tenancy rights. We have examined the evidence on this point. In the first place to establish a valid surrender there ought to be a notice as laid down in sec. 51 of the Jaipur Tenancy Act read with sec. 26 of the Jaipur State Grants Tenures Act 1947. There is no such notice on the record, nor is there any averment by the objector and his witnesses to this effect. Secondly, there is also no evidence to prove that the objector got possession over this land before the institution of the proceedings under sec.7of the R.P.T.O. against Jhuta and others. It, therefore, naturally follows that the objector obtained possession any time before an order of reinstatement on application under sec. 7 of the R.P.T.O. was passed against Jhuta and others. As observed by Kinkhede A.G.C. in A.I.R. 1925,Nagpur 421, "surrender during the pendency of the suit is void on the principle underlying the doctrine of "lis pendens". A similar view was expressed by Vekar J C in AIR 1925, Nagpur 132. It was laid down therein that when property is surrendered pendente lite between the preliminary decree and the final decree, the alienee deriving his title under such surrender is bound by the terms of the preliminary decree and it is not open to him to reopen questions already decided in the suit and he cannot sua also for the establishment of the title." By applying this principle to this case in the light of sec. 52 of Transfer of Property Act, we are of the opinion that even if these was the so called surrender by Jhuta it can hardly operate to the detriment of the applicant. The provisions of Rule l72 of the Rules framed under sec. 8 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act read with sec. 52 of Transfer of Property Act are clearly applicable to this case. The objection set forth by the opposite party obviously represents a design to keep off the execution from the applicant as away as possible. To allow such objections would tantamount to putting a premium on unauthorised dealing with property, during the pendency of proceedings by parties and thereby render nugatory any decision that may have been awarded by the court. We are, therefore, of the opinion that the opposite party is not in bonafide possession of the land in dispute and that he is not entitled to maintain his possession against the order of reinstatement passed in favour of the applicant and he should be deemed to be bound by the order. We would allow the revision, set aside the order passed by the lower-court and direct that the order of reinstatement be enforced against the opposite party by removing him from possession and placing the applicant in possession of the land.;