- (1.) THIS is the unsuccessful plaintiff's second appeal whose suit for ejectment on the ground of breach of conditions attached to the land let out to the respondents was dismissed by the trial court, the first appellate court confirming the same in appeal.
(2.) WE have heard the learned counsel appearing for the parties and have examined the record as well. The suit was instituted on 15. 5. 54 in the court of the S. D. O. Karauli with the allegations that the land in dispute was let the to out respondents on Asadh Sudi 13 Svt. 1986 for cultivation with certain conditions. As the defendants did not fulfil the conditions regarding levelling of the ground, and increasing the irrigated area, they had rendered themselves liable to ejectment in accordance with the terms of the agreement It was also alleged in the plaint that the respondents omitted to plant fruit trees as well. The defendants resisted the claim on the ground that there had been no breach of conditions and that they were entitled to continue in possession. The trial court dismissed the suit on the finding that during the continuance of the Rajasthan (Protection of Tenants) Ordinance, 1949, the respondents were not liable to be ejected. The plaintiff went up in appeal before the learned Additional Commissioner who also held that as the only ground on which ejectment of a tenant under the Ordinance could be claimed was on an act or omission detrimental to the land in that holding or inconsistent with the purpose for which it was let and as the plaintiff claimed ejectment on the ground of a breach of condition the suit was clearly untenable. The plaintiff came up in second appeal before the Board, which was dismissed in default on 9. 6. 55. It was subsequently restored on 5. 10. 55 and came up for hearing today. The Rajasthan Tenancy Act, 1955 was enforced on 15th, October, 1955 and it is only this factor which has turned the scales in favour of the appellant. The Rajasthan (Protection of Tenants) Ordinance has, been repealed by the Act. Sec. 177 (1) (b) provides that a tenant shall on the application of the landholder be liable to ejectment from his holding on the ground that he or any person holding from him has broken a condition on the breach of which he is, by special contract which is not contrary to the provisions of the Act, liable to be ejected. The respondents learned counsel has replied that there has been no breach of condition, that the Patta granted to him by the plaintiff contains no conditions and that even if the Kabuliat produced by the plaintiff be taken as correct it would bring out no cause of action as the rents have been paid regularly by the respondents and no rents have been allowed to fall in arrears. These and possibly others as well are the questions that will come up for determination during the course of the. trial and we deliberately refrain from expressing any opinion upon them lest the trial court might feel -embarrassed thereby. The legal position as obtains today therefore is that the suit instituted by the plaintiff, the appeal which is before us being merely a continuation of the same, deserves to be treated as an application under sec. 1/7 of the Rajasthan Tenancy Act in accordance with the provisions contained in sec. 206 of the Act. The decisions of the lower courts were perfectly correct at the time, when they were awarded as the Rajasthan (Protection of Tenants) Ordinance was in force then. But with the enforcement of the Rajasthan Tenancy Act, 1955 the position has altered materially as pointed out above. Nevertheless the fact remains that but for the change in the state of law the decisions of the lower courts would have been correct and the expenditure incurred by the respondents in both the lower courts ought to be reimbursed by the plaintiff before he can be allowed to take advantage of the altered law. We would, therefore, allow this appeal, set aside the orders of the lower courts and remand the case back to the trial court with the direction that on payment of Rs. 50/- as costs to the respondent defendants the plaint filed by the plaintiff be treated as an application under sec. 177 of the Rajasthan Tenancy Act, 1955. We would make it clear that it would be open to the defendants to raise such objections as they may like and the case shall be tried and determined in accordance with the provisions of law. .;