- (1.) THE circumstances that give rise to this second appeal may briefly be staged as below: -
(2.) NAVALA brought a suit on 2. 9. 52 in the court of the S. D. O. Ballabhnagar (District Udaipur) against Abdulla Khan son of Sher Khan, Sarvar Khan, Gafoor Khan, Mehboob Khan and Daryab Khan sons of Abdulla Khan and Somvar Khan defendants for ejectment and recovery of possession. The averments in the plaint were that the land in dispute (Well No. 266 and Arazi Nos. 263 to 271 measuring 19 Bighas 19 bis assessed at Rs. 30/12/- in village Balatha) was acquired from Thikana Delwara through a Bapi patta dated 7. 7. 1952; that the Mal Siga of the Thikana arranged the delivery of possession over the land in dispute in favour of NAVALA on 8. 7. 52 in the presence of defendants 1 to 6 who raised no objections at that time; that NAVALA deposited a portion of the patta premiun in the Thikana after having agreed to pay the balance in instalments and that on 13. 7. 52 when NAVALA proceeded to the land for cultivating it the defendants resisted him and forcibly cultivated it themselves. Abdulla and his four sons, defendants 1 to 5 contested the claim on the ground that the land in dispute is in the recorded khatedari of Somvar Khan from whom they purchased the tenancy rights through a registered deed in lieu of Rs. 599/-; that they had been in continuous possession since Svt. 1994 that NAVALA was never put in possession and hence there could hardly be any question of his dispossession. Somvar Khan, defendant No. 6 corroborated the plea set up by the defendants 1 to 5. The Jagirdar Delwara who was initially impleaded as defendant No. 7 in the suit admitted the claim in toto. He was however, subsequently transposed as a plaintiff in the course of the inquiry. The following issues were framed in the case: - (1) Whether the defdts. No 1 to 5 dispossessed the plaintiff NAVALA by force on 13. 7. 52 corresponding to Sawan Badi 7, Svt. 2009 from the land under dispute as mentioned in para 1 of the plaint? (Platff.) (2) Did the defdts. No. 1 to 6 know the fact that the plaintiff No. 2 handed over possession of the land under dispute to pltff. No. 1 and are they estopped from raising any objection at this stage because they raised no objection on the spot as they knowingly agreed to the transfer? (3) (a) Did the Thikana Delwara grant a patta of the land under dispute to the plaintiff No. 1 NAVALA? (pltff.) (b) Is Thikana Delwara competent to grant the patta of the land under dispute and as such the patta is valid? (4) To what relief the plaintiff is entitled. (5) Whether the suit of the plaintiff NAVALA can be entertained without amendment because the Thikana Delwara was impleaded as one of the defendants. Considerable evidence, oral and documentary, was led by the parties which has been carefully summarised by the learned trial, court in its judgment. It may he noted briefly here as well. The plaintiff examined Mod Singh, Gokal Singh, Udai Singh, Ratanlal,kesar Khan, Jan Mohammed and Zalim Chand had produced Ex. P. 1 to P. 7. The gist of the oral evidence is that the land in dispute originally was given in service grant to some Bhil, that Amir Mohammed father of Somvar Khan managed to have it entered in his Khata during settlement operations of Svt. 1988 as the Thikana was under minority management, that the entries in the Settlement record were thus not entitled to any weight, that the land escheated to the Thikana upon the heirless demise of the Bhil, that Somvar Khan agreed to surrender his rights to the Thikana and thereafter the Thikana granted a bapi patta to Navala. Ex. P. l & P. 2 are the two statements of Somvar Khan recorded on 11. 2. 52 and 12. 2. 52 by Mod Singh wherein he is alleged to have surrendered his tenancy rights. Ex. P. 3 is the statement of Abdulla Khan; Ex. P. 4 being his application It is also alleged that Abdulla Khan agreed to surrender his rights which he had purchased from Somvar Khan in the land Ex. P. 7 is the parvana issued to Gokal Singh Udai Singh for delivery of possession. Ex 6 is the compliance report of these persons and Ex. P. 5 is the Panch-nama evidencing the alleged delivery of possession on 8 7-52 in favour of Navala. The contesting defendants examined Fakir Mohammed, Amra, Bhajja, Nand Ram, Phool Chand, Kesar Khan, Modilal Shankerlal, Rajglal, Abdulla Khan, Kishna and Somvar Khan besides producing documents Ex D. 1, to D 12 Ex. D. 1 is the certified copy of the Jamabandi prepared during settlement operations of Svt. 1988 wherein Amir Mohammed (Father of Somvar Khann) is shown as the recorded Khatedar of the land in dispute. Ex. D. 2 is the copy of the sale deed executed on 18. 9. 51 by Somvar Khan in favour of Abdulla Khan and sons whereby tenancy rights in respect of the land in dispute were transferred in lieu of Rs. 599/-Ex D. 4 to D. 12 are the copies of the rent receipts. The oral evidence led by the defendants was to the effect that the land in dispute had ever since been in the possession of the defendants, that Navala plaintiff was never put in possession and that the defendants had never agreed to surrender their rights. The trial court after a careful scrutiny of the evidence came to the conclusion that Navala was not put in possession of the land in dispute, that the defendant had all through been in possession in 'heir own right and that they were entitled to continue in possession without interference. The suit was therefore dismissed by the trial court Navala went up in appeal before the Additional Commissioner who held that the trial court had omitted to examine the documentary evidence led by the plaintiff and on a consideration of the same it came to the conclusion different from that of the trial court. As a result the appeal was allowed and the suit was decreed. Hence this second appeal by the contesting defendants. We have heard the learned counsel for the parties and have examined the record as well. The decision of the case hinges on the point as to whether the defendants agreed to voluntarily relinquish their right, that they actually did relinquish,that thereafter Navala was put in possession on 8. 7. 52 and that on 13. 7. 52 he was dispossessed wrongfully. We will examine each of these points separately. As for the first point relating to surrender Ex. P. l, P. 2 and P. 3 are referred to as containing this surrender. Before examining these documents we would like to observe that the term surrender or relinquishment is not the same as duress or compulsion. To constitute surrender or relinquishment there ought to emanate from the tenant a proposal for giving up his tenancy rights in the land to the landholder who should accept the same. If on the contrary the landholder puts up a proposal to dislodge the tenant, compels the tenant to accept the same and thereafter proceeds to treat the transaction as a voluntary surrender, it is obvious that it is nothing but doing violence to language involving distortion of facts. All these documents of Somvar Khan and Abdulla Khan contained nothing but recitals of the fact that the Thikana is bent upon treating the land in dispute as belonging to the Bhil, as having escheated to the Thikana after the demise of the Bhil and that the possession and rights of Somvar Khan and his father were without any legal basis or authority. If Somvar Khan or Abdulla Khan under the circumstances stated their inability to resist the dictates of the Thikana and expressed their willingness to comply with its command, the only logical inference is that the organised efforts of the Thikana met with success as the the other party was too impotent to put up any resistance. To call this a voluntary surrender would be manifestly absurd. The learned trial court had examined this aspect of the affair and it is wrong to say that any important document was omitted out of consideration. The Thikana seek? to discredit the entries of the settlement record only on the ground that the Thikana was under minority management and that Somvar Khan's father managed to have his name recorded. It was open to the Thikana to have the entries corrected or to have the tenant ejected in accordance with law. As pointed out by the trial court the very substance on which Navala and the Thikana based their claim is lacking in the present case. Barring the statements of the employees of the Thikana who cannot be regarded as disinterested persons, there is nothing to suggest that the land in dispute ever belonged to any Bhil and that the Thikana had any justification to treat the recorded Khatedari rights as meaningless or improper. In fact the entry which had been standing in the Record of Rights for the last 20 years or so cannot be brushed aside so lightly and conveniently to suit the purposes of the Thikana, The Parvana and the compliance report of the Thikana employees have to be appraised in this context. They can hardly be expected to refuse to further a course of action decided upon by the Thikana. These proceedings, stand on a footing different from those conducted by public servants in the discharge of official duties enjoined upon them by law. These documents are the records of a party which has been shown to have been highly interested in seeking the ejectment of a recorded and continuous Khatedar merely in the hope of vindicating the supposed right or realising higher premium. The Panchnama Ex. P. 7,which is alleged to bear the signatures of Somvar Khan and Abdulla Khan, even if it be assumed that it does not bear their signatures, simply shows that a party of the Thikana employees proceeded to the spot to dispossess Abdulla Khan and his sons and succeeded in doing so obviously because of its superior strength. There is absolutely nothing in this document to show that Abdulla Khan and his sons wanted to get rid of this land for their own sake and that the delivery of possession was a result of that desire. On the contrary it is clear from this document and every other document that Abdulla Khan and Somvar Khan were consistenly anxious to retain their possession in consciousness of their rights and that left to themselves they would never have agreed to part with their land. But being forced and impelled to do so, they may have agreed to give their statements or to sign Panchnama. All this cannot establish the plea of voluntary surrender. The learned Additional Commissioner has evidently over-looked the circumstances under which these documents were written and consequently has failed to approach them in a proper perspective. After examining the entire evidence of the parties our conclusions are that Navala was never put in possession of the land in dispute that the Thikana had no authority to dispossess the recorded Khatedar or his transferee, that the possession throughout remained with Somvar Khan Abdulla Khan and his sons and that it is entirely wrong to suggest that Navala was put in possession on 8. 7. 52. The very fact that Navala alleges to have been in possession for a couple of days only under the circumstances of the case is potent enough to show that inspite of the various efforts of the Thikana he could not succeed in getting possession of the land in dispute. In the result, we hold that the findings arrived at by the trial court are perfectly cogent and convincing and that those of the first appellate court are untenable for reasons given above. We. therefore, allow this appeal, set aside the decree and judgment of the Additional Commissioner, Udaipur and restore that of the Sub-Divisional Officer, Ballabhnager as a result whereof the suit shall stand dismissed. The costs of the appellants shall be borne by the respondent Navala. . ;