- (1.) THE facts of the case which have given rise to this application in revision against the judgment of the Addl. Commissior, Jodhpur dated 29. 12. 56 may briefly be stated as below -
(2.) THE applicants presented an application under sec. 7 of the Rajasthan (Protection of Tenants'; Ordinance, before the Sub-Divisional Officer, Sojat for reinstatement on the land in dispute with the allegation that they had been lawfully admitted as tenant of the same in Svt. 2009 by the opposite party and that they cultivated the same in Kharif and Rabi of the said Sambat but were forcibly dispossessed thare-from after the expiry of Svt. 2009 by the opposite-party Rao Raja Udai Singh. It was also alleged that the non-applicant dispossessed the applicants on the ground that they refused to pay l/5th share of the produce to the non-applicant as against 4/6th share which alone could be lawfully realised by him. THE opposite party in his written statement denied the applicants' contention and urged that the land was in his Khudkasht and that it was only in Svt. 2009 that he engaged the applicants as hired labourers for assisting him in cultivation. In the alternative it was also stated by the non-applicant that if it be held that the land was given for purposes of cultivation to them as tenants in Svt. 2009 the applicants cannot claim reinstatement because they themselves voluntarily surrendered the land after having removed the produce. THE trial court examined a large number of witnesses produced by both the parties. THE learned court discussed in detail the statements made by these witnesses, and believed the testimony of the applicants' witnesses and rejected the theory set up by. the non-applicants. THE learned court found it a fact that the document Ex. D. 1 said to have been executed by two of the applicants Balu and Ada in favour of the non-applicant as his hired labour's was not proved. It also ruled out the plea taken by the non-applicant to the effect that the applicants had voluntarily surrendered the land in favour of the non-applicant. Accordingly the learned court allowed the application and ordered reinstatement of the applicants on the land in dispute. THE non-applicant went in appeal against it to the learned Addl. Commissioner. THE learned lower appellate court also discussed the evidence and arrived at a different conclusion. It held that the evidence produced by the non-applicant was worthy of greater credence than that of the applicants. It also held that the execution of the document Ex. D-1 as well as the fact of voluntary surrender wa proved against the applicants. In the result the decision given by the learned trial court was set aside and the application for reinstatement was dismissed. Being aggrieved from this decision of the learned lower appellate court the applicants have come in revision before us. The learned counsel for the applicants urged that the lower appellate court overlooked some of the very important facts proved by the applicants and minimised the material Discrepancies and contradictions which were patent in the opposite-party's evidence. He also argued that the plea of voluntary surrender taken by the opposite-party was not at all proved either by oral or documentary evidence and that the document Ex. D 1 was also erroneously and illegally held by the lower appellate court to, have been executed by the applicants. The learned counsel also urged that the manner in which the lower appellate court arrived at a decision which was not supported by evidence on record was against law and in doing so it acted illegally and with material irregularity in the exercise of its jurisdiction and that therefore the impugned decision deserved to be set aside. The learned counsel for the opposite party argued that the lower appellate court had discussed the evidence of the parties and a signed stronger and more cogent reasons for believing the facts deposed by the witnesses of the opposite party than those of the applicants. It was also urged that there were no discrepancies worth the name and in a revision petition, unless it was shown that the court below acted without jurisdiction, its finding cannot be substituted by another finding on the same evidence. It was also contended that the documentry evidence, Ex. D-l, was proved according to law and the applicants who had never been lawfully admitted as tenants but were only engaged as hired labourers could be turned out any time. It was also vehemently urged that there were admissions of the applicants to the effect that they themselves withdrew from cultivating the land and surrendered the land in favour of the non-applicants In order to appreciate the arguments advanced by both the parties we had to made through a mass of evidence on record. It is significant that Rao Raja Udai Singh, opposite-party who was the Jagirdar of this village and who alone had given his written statement on 25 7-53 did not even come in the witness box. Mohan Singh the other person is admittedly a servant of the Thikana and he did not file any written statement. He was examined by the court as D. W. 19. On the other hand the applicants Bala P. W. 11, Adya P. W. 13, Ghisunath P. W. 14 examined themselves. There is nothing on the record to explain why the main defendant namely Rao Raja Udai Singh against whom the applicants sought relief failed to examine himself. This raises a strong presumption against the non-applicant. It is a rule of evidence that it is the bounden duty of a, party who personally knows the facts of his case to come into the witness box to build up his case and if he fails to do so his nonappearance as a witness will be one of the strongest possible circumstance to discredit the truth of his case. It can therefore safely be presumed that he abstained from giving evidence for the reason that the truth was on the opposite-side. Coming now to the evidence of the opposite-party we find that there is not an iota of evidence in support of the plea of voluntary surrender taken by the opposite-party. The only evidence on this point is that of D. W. 4 Babhota and D. W. 13 Shankariya. Bakhta stated that the applicants left the well in the month of Baisakh and also removed the Kabada. D. W. 13 Shankariya stated that he saw Balu and Adya carrying away Kabada from the well and saying that they will not cultivate the land in future. These statements cannot by any stretch of imagination be considered as proof of the fact that the applicants had voluntarily surrendered the land. In fact the applicants have offered an explanation in which they stated that they removed the Kabada because they had to return the same to Shri Anraj from whom they had taken it on hire for a year. The applicants Babhoota, Ghisu, Adya and Bala clearly stated in their examination that during the month of Baisakh when they went on the well for 'sur' they were not allowed to do so by the non-applicant and left the field to avoid any further complication. As held by the Board in R. R. D. 1956 page 335, an act to be voluntary must proceed from one's free will or volition. Where a person's will is to resist the act but under the existing circumstances he finds himself unable to put any resistance and as a result thereof he is compelled to do an act it can hardly be called voluntary on his part. In an earlier decision, RLW 1952 (Revenue Supple-merit) page 16 the Board also laid it down as a rule of law that the plea of voluntary relinquishment should be examined very carefully as the tenants in these days do rot ordinarily relinquish land in their possession Some reason must be shown for such relinquishment before the expiry of the period of Patta. The burden of proof lies heavily on the non-applicant and unless it is fully discharged a plea of voluntary surrender can hardly be maintainable In another decision the Board also emphasised that in addition to oral evidence there must be some documentary evidence to prove the fact of voluntary surrender. In the present case no such evidence is forth coming. The learned trial court therefore in our opinion rightly came to the con-clusion that the plea of voluntary surrender taken by the opposite party was not at all proved. The learned lower appellate court did not examine this point in the manner in which it deserved to be examined. He contended himself only by stating that "due to the absence of any definite evidence of forcible ejectment and the voluntary removal of Kabara the presumption is that the well was voluntarily abandoned after a year. " Such an inference based as it is on mere surmises can hardly be warranted by law. The learned lower court did not at all scrutinise the evidence of the parties on vital matters and its finding cannot therefore be supported. Accordingly we hold that the plea of voluntary surrender taken by the non-applicant has not at all been proved and the trial court with whom we agree rightly rejected the same. This being so we have now to examine whether the applicants were employed by the non-applicant as agricultural labourers or were admitted as tenants in Svt. 2009. The document Ex. D-1 said to have been executed by two of the applicants namely Balu and Adya was examined. The applicants denied its execution. According to sec. 67 of the Indian Evidence Act if a document is alleged to be signed or to have been written by any person, the signature (which also includes thumb impression in the case of an illiterate person) or writing thereof must be proved to be in that person's hand writing. It may be proved by calling the person who signed or wrote the document, by calling a person in whose presence the document was signed or written, by calling a handwriting expert or by any other mode recog-nised by the Act. In the present case, the opposite-party examined Hushiar Singh D W. 18, a finger print expert. He stated that Ex D 1 is blurred, he could not say whose thumb impression it was. Moti Singh D. W. 2 who is an employee of the non-applicant stated that it was written by by him at the instance of the applicants Balu and Adya. D. W. 14 Chandmal stated that no such agreement as Ex. D-1 was executed by the applicants in his presence but that there was another document executed by the applicants relating to the share of the produce payable by them to the non-applicant D. W. 3 Punia did not say specially that Ex. D-1 was written in his presence. He only deposed that a likahwat was written by Balu and Adya in his presence. Ex. D-l was not shown to him although this witness stated that he could ordinarily read and write. D. W. 12 Girdhari, however deposed that Ex D-1 was written in his presence and Adya and Balu put their thumb impressions thereon. The trial court on this evidence held that in the first place it was not satisfactorily proved that Ex. D-1 was executed by the applicants Balu and Adya and, secondly even if it was so it was so it was clear from the evidence of Chandmal D. W. 14 and others that it was not actually implemented. The learned Addl. Commissioner did not examine the correctness of this finding on the basis of the evidence discussed by the trial court but relied in a larger measure on the observations made by the District and Sessions Judge in his judgment in an criminal case between the parties in which this document was produced and held to have been proved against the applicants. We have ourselves read this judgment of the learned Dist. and Sessions Judge dated 18. 11. 55. In that case the non-applicants and others were prosecuted on the complaint of the applicants under sec. 395 I. P. C. for committing dacoity in respect of the produce of this land. The learned court held that no offence was proved against the accused namely the non-applicants and accordingly they were acquitted. The only observations about Ex. D 1 made in this judgment are that the prosecution had not been successful in proving that Ex. D-1 is a forged document and that its execution had been amply proved by the evidence on record. An observation of this nature in a criminal proceeding between the parties can hardly be binding on a revenue court in a proceeding under sec. 7 of the R. P. T. O. in which it is to be established beyond any manner of doubt by strong and weighty evidence that the applicants were not tenants but simply hired labourers The learned Addl. Commissioner should have given an independent finding on this issue on (he basis of the evidence before it instead of having relied unduly on the aforesaid observation of the Sessions Judge. Having therefore examined the evidence ourselves, we agree with the trial court that the applicants were not engaged by the non-applicant as his hired labourers but were lawfully admitted by him as tenants in Svt. 2009 on payment of 1/5th share of the produce to the non-applicant. It is also in the evidence that the dispute arose only because the applicants refused to pay l/5th of the produce and insisted that they would pay only l/6th of it which alone was lawfully realisable from them Taking all these facts into consideration we are of the opinion that the applicants had been unlawfully dispossess d from the land and the trial court therefore rightly ordered their reinstatement. Accordingly we allow this revision, set aside the order of the lower appellate court and restore that of the trial court. .;