- (1.) THE circumstances that give rise to this second appeal may briefly be stated thus: - - Sheodan plaintiff brought a suit against Mamraj Shrichand etc., defendants, for recovery of possession over khasra Nos. 369, 374, 381, 383 and 322 in village Hatundi Tehsil Mundawar. District Alwar in the court of the S.D.O. Tijara on 25.9.51 with the allegations that the plaintiff had been cultivating the land in dispute since Svt. 2002 and that in Asadh Svt; 2008 he was dispossessed wrongfully by the defendants. The claim was resisted on the ground that there was no wrongful dispossession of the plaintiff, that the plaintiff voluntarily surrendered the land in dispute and accepted the other land in exchange for this holding and that the suit was not maintainable as a previous suit filed by the plaintiff had been dismissed. The following three issues were framed by the trial court. 1. Whether the plaintiff left off the area willingly in exchange of other area. 2. Whether the suit is maintainable on account of the failure of previous suit,, & 3. To what relief is the plaintiff entitled. The trial court decided issue No. 2 against the defendants as they failed to lead any evidence on it. As regards issue No. 1, the finding of the lower court is "that the exchange was vitiated by coercion and is not binding". The trial court, therefore, granted a decree for recovery of possession over the khasra numbers stated above but directed that the defendants shall be put back in possession of the fields handed over to the plaintiff in exchange. The defendants went up in appeal before the Additional Commissioner. A cross objection was also filed by the plaintiff against the said order of the Additional Commissioner asking him to return the land he got in exchange form the appellant land holder. The learned Additional Commissioner who heard the appeal came to the conclusion "that the surrender was no voluntary but as the defendant -appellants wanted to take back the fields in dispute from the plaintiff, they disposed him and gave some other piece of land to him in exchange". As result of this finding the appeal was dismissed. Hence this second appeal by the defendants.
(2.) WE have heard the counsel appearing for the parties and have also exa -mind the record of the case. As provided in sec. 184 of the Alwar State Revenue Code, a tenant who has been dispossessed of his tenancy or any part thereof without his consent may seek reinstatement within a period of one year. Thus the first point to determined is as to whether the plaintiff defendant was dispossessed without his consent or not. The trial court would have been better advised to frame an issue specifically on point as to whether the plaintiff was dispossessed without his consent. Unfortunately the issue No. 1 as it stands, simply says about the voluntary surrender as alleged by the defendants. But as the parties fully understood the scope of the issue and led their evidence on the point we consider it unnecessary to frame any further issue or to require the parties to lead further evidence in the case. The trial court found that there was an exchange of land between the parties but as the consent of the parties was not given freely but under coercion, it cannot be held that there was a voluntary surrender. The same view has been endorsed by the first appellate court. To our mind, this is not a correct approach to the case. As provided in sec. 138 of the Alwar State Revenue Code, the owner and tenant can exchange a plot or holding by mutual agreement. The plaintiff did not disclose anything about the alleged exchange in his plaint and denied the same when he was confronted by the defendants. Both the lower courts have however, found it as a fact that there was an exchange and hence this finding is being accepted by us in this second appeal. The appellants counsel has, therefore, argued before us that there being an exchange by mutual agreement, it is not open to the plaintiff to ignore it and if he wants to avoid it, he should bring a suit in a Civil Court for the avoidance of a contract on the basis of alleged voidability of agreement without free consent. As provided in sec. 19 of the Indian Contract Act when consent to an agreement is caused by coercion or fraud, the agreement is a contract voidable at the option of the party whose consent was so caused. Such an agreement is not ab initio void. Unless the plaintiff seeks to avoid the agreement on the basis of alleged coercion, an action which is within the cognizance of a Civil Court only, he cannot be allowed to bring a suit for recovery of possession on the basis of dispossession. There was consent for his dispossession and no revenue court can grant him a relief under the circumstances under he is able to establish in a proper court that the consent given by him was under coercion and the agreement, therefore, can be legally cancelled. As observed in 10, Revenue Decisions, 3" he (ex proprietary tenant) cannot recover possession...............because there has been no illegal ejectment and he given up the laced of his own free will As he actually relinquished the land he has no remedy left to him". In the present case, we find that the plaintiff was given almost an equivalent area in the village which he, according to his own witness Lalji, started cultivating within two or three days of the exchange. It has been confirmed by the patwari that in Svt. 2008 he was in possession over the land given in exchange. Thus it cannot be doubted for a moment that there was an exchange. As observed above it was open to the parties concerned to enter into in exchange of holdings. The plaintiff surrendered the land in dispute in exchange for some other land of which be actually took possession. The plaintiffs present suit, therefore, practically amounts to a repudiation of the agreement on the basis of his consent being given under coercion. Thus clearly it is beyond the cognizance of a revenue court as there had been no dispossession without consent. We would, therefore, allow this appeal, set aside the decrees of the lower courts and direct that the suit filed by the plaintiff shall stand dismissed. The parties shall bear their own costs throughout.;