- (1.) THERE is no evidence on record to support the con* tention that the appellant was a party to the lease and that he ever admitted them as his tenants on the execution of the Istamarari lease in Smt. 1995, or that respondent No. 3 accepted the rent for this land with the acquiescence of the appellant after the execution of this lease. On the other hand there is a clear statement of the respondents No. 1 and 2 that the original lease of Smt. 1994 remained ineffective, and they got possession on the land after the istamarari lease of Smt. 1995 was subsequently executed in their favour by respondent No. 3. It is a clear case in which one of the co-sharers who was not exclusively in possession of the whole area on the request of the respondents revoked the previous lease and executed a perpetual lease purporting to transfer the share of the appellant without his knowledge and to his detriment, authorising the lessee to continue to remain in possession of that area in perpetuity and to exercise all conceivable rights over the same. The lease in such a case would be void and the lessee would be no more than a trespasser liable to ejectment as such. Per Shri Shyamlal : - In view of the clear averment contained in the plaint it must be found as a fact that the contesting respondents entered upon the land in dispute in accordance with the terms of a valid contract of tenancy. That contract expired after 5 years. The respondents therefore could not, after the expiry of five years period, be regarded as trespassers. In India a landlord can only eject his erstwhile tenant by recourse to law and by obtaining decree for ejectment. Per Shri S. L. Ahuja : - It is a question of fact in each case whether the landlord by assenting to the tenant's continuing in possession after the termination of the lease altered the character of his possession from that of a trespasser to that of a tenant holding over. The intention of the parties as well as their conduct is relevant in determining whether a tenant who continued in possession of the land after the termination of his lease was a tenant holding over, or a trespasser. The conduct is certainly more eloquent than words. The appellant by bringing a suit for recovery of rent indicated clearly that he had impliedly thought not expressly assented, to the respondent's continuing in possession of the land. Taking these facts into consideration it cannot be said that the contesting respondents were trespassers. Per Shri Kanwar Bahadur - The circumstances which have given rise to this appeal against the appellate order of the Additional Commissioner, Jaipur dated 29. 3. 55 may be stated in brief as below.
(2.) GHISA the plaintiff appellant filed a suit against the respondents in the court of Civil Judge Kotputli with the allegation that the land in dispute which was held jointly by him and his brother Onkar respondent No. 3 was leased out to Gyarsi and Ghadsi respondents No. 1 and 2 on Magh Sudi 4, Smt. 1994 for a period of 5 years by him. Thereafter the respondents No. 1 and 2 somehow managed to obtain an Istamrari lease in respect of the same land on Ashadh Sudi 7, Smt. 1995 from respondent No. 3 without the knowledge and consent of the appellant, during his absence from the village. The appellant, therefore, prayed that as Onkar respondent No. 3 was not authorised to execute an Istamrari lease in respect of the appellants 1/2 share in the holding, the Patta issued by him dated Ashadh Sudi 7, Smt. 1995 be declared as void and the appellant be put in possession of his share of the land by ejecting the respondent's No. 1 and 2. Onkar respondent No. 3 in his written statement before the Civil Judge dated 31. 10. 1947 admitted to have executed the said lease and added that he did so without the assent of the appellant and under the influence of Bhang administered to him by the respondents No. 1 and 2. The other two respondents however contested the suit on the ground that as the impugned lease in respect of this joint holding was given by respondent No. 3 as a Karta and Manager of a joint Hindu Family, it was binding on the appellant and could not be declared void nor could they be ejected from the land in dispute. Several other pleas including the one challenging the jurisdiction of the civil court to try the case were also taken. The civil court heard the case on the point of jurisdiction and held that the suit was triable by a Revenue Court and should be transferred to the S. D. O. concerned for disposal. This view was confirmed by the High Court on the 8th December, 1948, Accordingly, the case came up for hearing before the Nazim Kotputli. A preliminary point was raised before him on behalf of respondents No. 1 and 2 to the effect that as this suit was primarily for the ejectment of a tenant, it should be consigned to record under sec. 5 of the R. P. T. O. 1949. The Nazim however overruled this contention and ordered the suit to proceed in the usual manner. In revision, the Board of Revenue by their order of 25th February, 1950 declined to interfere with this order of the Nazim and the case was sent back to him for proceeding further with the trial according to law. During the course of proceedings, the respondents again raised the question of jurisdiction before the S. D. O. and contested that this suit was not triable by a Revenue Court. The learned S. D. O. by his order of 27th Feb. , 1953 overruled this contention and held that he was competent to try this suit. In appeal this order was confirmed by the Additional Commissioner, Jaipur on 14. 8. 53 and the same view was held in second appeal by the Board of Revenue which directed that the suit be tried by the S. D. O. as a revenue court and dispose of as expeditiously as possible. The S. D. O. accordingly proceeded to record the evidence of the parties on the issues already framed. He found for the appellant that the respondent No. 3 had no right to execute the lease deed as it was not proved that the appellant and respondent No. 3 lived jointly as members of a Hindu Joint Family or that the lease was executed by respondent No. 3 as a Karta for any legal necessity and in the interest or with the consent of appellant. On the contrary, he found it as a fact that both the appellant and respondent No. 3 were living separately and only the land was held by them jointly as co-sharers. The trial court, therefore, held that the respondent No. 3 was not lawfully competent to execute a perpetual lease in respect of the share of the appellant without his consent and the lease was void. In consequence he also held that the respondents were trespassers. He, therefore, decreed the suit and directed the ejectment of the respondent No. 1 and 2. In appeal the learned Additional Commissioner held that the respondents were not trespassers, but were the tenants of the appellant and they could not be ejected so long as the Rajasthan Protection of Tenants Ordinance was in existence. The decree of the lower court was reversed and the suit was ordered to be consigned temporarily to record under sec. 5 of the Rajasthan Protection of Tenants Ordinance. Hence this appeal to the Board by the plaintiff. It is urged on behalf of the learned counsel for the appellant that the lower appellate court mis-applied the law in holding that the respondents No. 1 and 2 were tenants of the appellant and were entitled to protection under the provisions of Rajasthan Protection of Tenants Ordinance. It is contended that the lease of Smt. 1995 created by respondent No. 3 was void and in-operative as he had no right to do so. It was also urged that no relationship of a landlord and tenant between the appellant and respondents No. 1 and 2 was ever created by Patta, dated Smt. 1994 as admitted by them in their written statement and that the subsequent Istamrari Patta issued in 1995 by the other co-sharer namely respondent No. 3 in respect of the appellant's share was not binding on the appellant as he was neither a party to this contract nor was it executed on his behalf by one competent to do so. The contention of the learned counsel for the respondents is that his clients were duly admitted as tenants by the appellant originally in svt. 1994 and the subsequent Istamrari Patta given by respondent No. 3 did not at all change their status. It was also urged that as the respondents bad been depositing the rent of this land which was duly accepted by respondent No. 3 on his behalf and. also on behalf of the appellant, it was a ease of 'holding over' and the respondents could not be ejected by him. We have carefully examined the record of the case. There is no evidence on record to support the contention of the learned counsel for the respondents that the appellant was a party to this deal and that he ever admitted them as his tenants on the execution of the Istamarari lease in Svt. 1995, or that respondent No. 3 accepted the rent for this land with the acquiescence of the appellant after the execution of this lease. On the other hand, there is a clear statement of the respondents No. 1 and 2 that the original lease of Smt. 1994 remained ineffective, and they got possession on the land after the Istamrari lease of Svt. 1995 was subsequently executed in their favour by respondent No. 3. It is, therefore, incorrect to say that it is a case of 'holding over' and the contention of the learned counsel on this point is ruled out. It is in fact a clear case in which one of the co-sharers who was not exclusively in possession of the whole area on the request of the respondents revoked the previous lease and executed a perpetual lease purporting to transfer the share of the appellant without his knowledge and to his detriment, authorising the lessee to continue to remain in possession of that area in perpetuity and to exercise all conceivable rights over the same. Evidently the respondent No. 3 who created this perpetual lease had no legal authority to do so. The trial court had disbelieved the evidence that the respondent No. 3 was the manager of a joint Hindu Family and that he had any authority to make this alienation without the assent of the appellant. The lease in such a case would be void and the lessee would be no more than a trespasser liable to ejectment as such. In Debi Prasad Singh vs. Sujan Singh 1941, Rev. page 699. 1941 R. D. 47 reposed in the foot notes at page 140 of the commentary of the U. P. Tenancy Act by Bilgrami 1940 Edition, it was held that such a lease is void and inoperative in law. In Mangli vs. Bhawani, 1938 R. D. 269 it was also observed "where there are two or more co-sharers in any right, title or interest, all things required or permitted to be done by them shall be done conjointly unless they have appointed an agent to act on behalf of them. " "it is the whole proprietary body of their agent or representative who can admit tenants. Where a person is not so admitted to tenancy he is a trespasser. " In view of these facts, we are of opinion that the lease created by the respondent No. 3 is void and in-operative and the respondent is a trespasser, and therefore, liable to ejectment. The provision of the R. P. T. O. view protection only to tenant against ejectment and not to trespasser. The lower appellate court was, therefore, wrong in holding that the case be consigned to record so long as the R. P. T. O. exists. On the point of jurisdiction, our attention is drawn to a division Bench ruling of the Rajasthan High Court in Gordhan vs. Kishen Lal RLW 1955 p. 23-24 wherein it was held that "technically, a person who wrongfully takes possession and a person who lawfully enters into possession but continues to be in possession unlawfully are both trespassers. But Art. 10 only provides for a suit to lie in a revenue court in the case of a person who unlawfully takes possession of land and not for a suit in the case of a trespasser of the second kind. Such a case is not covered by any of the articles in the schedule, and the-civil courts have not been ousted of the jurisdiction to try a case of this nature. " The question "of jurisdiction in this case has already been decided in • the earlier decisions of the Jaipur High Court and the Board of Revenue, who held i that the case was triable by a revenue court. Nevertheless in the light of the above quoted ruling, we have examined it again. A perusal of the written statement filed by the respondents No. 1 and 2 will show that they themselves admitted that they do not claim any tenancy by virtue of the lease of Svt. 1994, which remained ineffective, but they base their claim on the second lease of Svt. 1995 which we have held for reasons already stated as void and inoperative. It therefore logically follows that the possession of the respondents based as it is on the impugned lease was ''unlawful ab initio and the decision of the High Court quoted above is not applicable to this case. The suit has been rightly tried by the S. D. O. as a Revenue Court and is covered under Art. 10 Group B Schedule I of the Revenue Courts Procedure and Jurisdiction Act. Coming now to the merits of the case, a perusal of the order of the lower court shows that it did not examine the facts of the case and dismissed the appeal on a preliminary point looking to the history of the case in which the parties had been litigating for the last 10 years, and in the interest of justice instead of remanding it to the lower court, we have ourselves gone through the entire evidence. The S. D. O. had framed necessary issues and the burden of proof lay on the respondents. The respondents examined DW 1, DW 2, DW 3 and DW 4 on these issues. The trial court held that the respondents on whom the burden lay failed to prove that the impugned lease was executed by respondent No. 3, on behalf of the appellant as a Karta of the family for any legal necessity or with the connivance or acquiscence of the appellant. It was also found that the possession of respondents No. 2 and 3 as a tenant did not follow the original lease of Svt. 1994 Thus the tenancy if any was created in pursuance of the second lease of Svt. 1995 executed by respondent No. 3 and which we have already held to be void in so far as the appellant is concerned. Consequently the respondents are clearly trespassers over the portion of the land belonging to the appellant. In the circumstances, we allow this appeal, set aside the order of the lower appellate court and confirm the decree given by the trial court. Per Shri Shyamlal - I have had the privilege of going through the judgment of my learned colleague. The following two points are mainly involved for determination in this appeal. (a) Is the Istimrari Patta granted to respondents Nos. 1 and 2 by respondent No. 3 on Asadh Sudi 7, Smt. 1995 void and ineffective ? (b) What is the status of the respondents numbers 1 and 2 in respect of the land in dispute ? Are they tenants or trespassers ? 2. On the first point I am in agreement with the views expressed by my learned Colleague. Where there are two or more co-sharers in any right or title all things required or permitted to be done by them should be done conjointly. In the present case the appellant and respondent No. 3 are the joint proprietors of the land in dispute. The Svt. 1995 lease to be valid and legal should have been executed by both of them. It has been found as a fact by both the lower courts that it was not so executed and that it was executed by respondent No. 3 alone. Hence it is perfectly clear that the Svt. 1995 lease is clearly void and inoperative. The case law on the subject has been stated in para 5 of the judgment of my learned colleague and the principles enunciated therein are fully applicable to the present case. 3. As regards the other point the most important fact to be remembered is that respondents No. 1 and 2 were put in possession of the land in dispute by both the co-owners, the appellant and respondent No. 3 by execution of a five year lease on Magh Sudi 4 Smt, 1994. A clear averment to this effect is to be found in para 4 of the plaint. It is true that the contesting respondents in para 4 of the written statement have stated that on coming to know that the original lease was for a period of 5 years only as against the perpetual one that was agreed upon between the parties, they refused to cultivate the land and that thereafter the Istmrari patta was granted on them on the basis of which they have been in continuous possession since then. In the first place this counter allegation of the respondents does not mean that a valid contract of tenancy was not created by Svt. 1994 lease. It simply amounts to an assertion that no cultivation was actually done in that year. Secondly what is more important is the fact that the plaintiff appellant must be bound by his own pleading. It is not open to any court to substitute his claim by something else which he has not specifically claimed and to grant a relief on the basis of the substituted claim. He is to succeed or fail as he is able or not to establish his alleged claim. This is the settled principle of interpreting pleadings as observed by Munir in his commentary on the Indian Evidence Act at page 270 (3rd Edition ). Sec. 31 has no application to the admissions contained in pleadings. Pleadings are conclusive for purposes of the suit in which they are made. The question of jurisdiction is also to be determined by the allegations in the plaint without any reference to the allegations of the defendants as laid down by the Rajasthan High Court in Chandan Mal vs. Dawe, 1954 RLW 184. Thus in view of the clear averment contained in the plaint it must be found as a fact that the contesting respondents entered upon the land in dispute in Smt. 1994 in accordance with the terms of a valid contract of tenancy. That contract expired after 5 years. Leaving aside the inoperative permanent lease, it is clear that the contesting respondents could not after the expiry of five years period be regarded as trespassers. A similar point was decided by the Bombay High Court, reported in A. I. R. 1954 Bom. 358. The following observation of Chhagla C. J. may be quoted in this connection. "under the Indian law, the possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical and that possession is protected by statute. Under section 9 of the Specific Relief Act, a tenant who has ceased to be a tenant may sue for possession against his landlord if the landlord deprives him of possession otherwise than in due course of law, but a trespasser who has been thrown out of possession cannot go to court under sec. 9 and claim possession against the true owner. Therefore, our law makes a clear and sharp distinction between a trespasser and an erstwhile tenant. Whereas the trespasser's possession is never juridical and never protected by law, the possession of an erstwhile tenant is juridical and is protected by law. Therefore, as far as the Indian law is concerned, an erstwhile tenant can never become a trespasser. It may or may not be that in English law in certain circumstances he can become a trespasser and it does seem that the landlord can enter the premises and deprive the erstwhile of his possession, but in India a landlord can only eject his erstwhile tenant by recourse to law and by obtaining a decree for ejectment. " 4. There can thus be no manner of doubt whatsoever that the contesting respondents even after the expiry of five years period are to be treated as tenants and not trespassers. The decision of the lower appellate court is, therefore, correct. This appeal should, therefore, be rejected. Per Shri S. L. Ahuja -In this appeal which arises out of a suit instituted by the appellant for declaration that the Istmarari Patta granted by the respondent No. 3 to respondents Nos. 1 and 2 was void so far as the share of the appellant in the land in suit was concerned and for possession of half of the said land, there was a difference of opinion between my learned colleagues on one of the two important questions involved in it. The question may be shortly stated as below: - What is the status of respondents No. 1 and 2 in respect of the land in dispute. Are they tenants or trespassers? My learned colleague Shri Kanwar Bahadur was of the opinion that as respondent land 2 had got possession of the land after the Istmrari lease of. 9m/. 1995, which was void and inoperative, they could not be regarded as tenants and were trespassers According to him it was incorrect to say that it was a case of holding over. He therefore, over-ruled the contention of the learned counsel for the respondents on that point My learned colleague Shri Shyamlal, held the view that respondents 1 and 2 had been let into possession of the land in dispute by both the co-owners, the appellant and respondents No. 3 by execution of a five years lease on Magh Sudi 4, Svt. 1994. A clear averment to that effect was to be found in para No. 4 of the plaint. He observed that it was clear that the contesting respondents could not be regarded, after the termination of their lease which commenced from Smt. 1994 as trespassers. In support of his view he relied on A. I. R. 1954 Bombay 358 and quoted in extenso the observations of Chhagla C. J. 2. The sole point which falls for determination as I have pointed out above is whether the contesting respondents could be treated as tenants or mere trespassers. 3. I have heard the learned counsel for the parties at considerable length. 1 have also examined the record closely. 4. On behalf of the appellant it was contended that as the contesting respondents had remained in possession of the land against the will of the lessors who had not assented to their continuing in possession, they were trespassers and the equitable principles of sec. 116 of the Transfer of Property Act could not be invoked in their favour. In support of his contention the learned counsel cited a number of -authorities. It is necessary to examine them in great detail in order to determine the rule of law which they enunciate. The first case to which a reference was made by him is A. I. R. 1949 Calcutta. The facts of that case were that a big field was leased to the respondent by a registered indenture dated 17th February, 1928. The lease was for a term of 10 years from 28th February, 1928, and the rent reserved was Rs. 6000/-p. a. payable in advance. By the efflux of time the lease terminated on the after-noon of 23rd February, 1938. After the termination of the lease the allottee remained in possession and subsequently made out that as the lessor had accepted rent for a period subsequent to the termination of the lease such acceptance amounted to the conclusive proof of assent to his continuing in possession. On the facts of the case it was held that the acceptance of rent was not proved and even if it was accepted in forget fullness of the fact that the lease would terminate on 28th February, 1938, such acceptance did not amount to assent on the part of the lessor. The next case on which the learned counsel for the appellant relied was AIR 1955 Patna. In that case symbolical possession was delivered to the land-lord in execution of a decree. As the actual possession remained with the respondent the land-lord brought a suit after a number of years. It was held that there was no warrant for the proposition that simply because the land-lord waited for so many years to institute a suit after the formal delivery of possession the tenant would be deemed to have held over. The expression 'holding over' means that the relationship of the land-lord and tenant was allowed to continue with the consent of both the parties and it is for the tenant to prove the over act by which the relation was allowed to continue, These overt acts may be either the receipt of the rent by the land-lord or his assenting to the continuance of the tenancy by other acts. The next case on which reliance was placed was AIR 1930 Calcutta 262. It was held therein that the act of holding over after the expiration of the term does not necessarily create a tenancy of any kind, it being in each case a question of fact what the intention of the parties was. At the common law, if a tenant continues in possession by consent of his land-lord he is deemed Prima facie a mere tenant at will. Whenever a tenant pays rent for a period subsequent to the expiry of the original term the presumption is that he ceases to be the mere tenant-at-will. In England in the absence of rebutting evidence the inference arising from the payment and acceptance of rent is that the tenancy is a tenancy from year to year and Prima facie the new tenancy is subject to all the terms of the expired tenancy which can be applied to a tenancy from year to year. These doctrines are not applicable to their whole extent to cases under the Bengal Tenancy Act. 5. The next authority was A. I. R. 1950 Patna 556. It was held therein that where there is nothing to indicate that the land-lord has declined to consent to the tenant holding over after the expiry of the lease the institution of a suit for recovery of rent may well be deemed to be an expression of assent to his holding over. But when the land-lord according to his own admission has for four of five years protested against the defendant holding over and then had instituted a suit for rent I do not consider that it amounts to a consent to his holding over from the expiry of the period of the Theka. It is inconsistent with the land-lord's conduct and can merely be evidence that after a period of years the land-lord himself changed his mind with regard to what he wanted to do. 6. The last authority to which my attention was drawn by the learned counsel was AIR 1948 Bombay 885. In this authority the scope of sec. 116 of the Transfer of Property Act was examined in great detail. It was observed "before a new tenancy can be created under sec. 116 two conditions have to be satisfied: - (1) The tenant must continue in possession after the termination of the tenancy, (2) The land-lord must assent to his continuing in possession. The consent can be given either by accepting rent or otherwise. Under sec. 116 there should be bilateral act not merely an unilateral act either on the part of the land-lord or tenant. The act on the part of the tenant is his continuing in possession, the act on the part of the land-lord is assenting to the tenant's continuing in possession. If the tenant continues in possession after the termination of the lease he is a trespasser. It is only the assent of the land-lord that changes the character of his possession. As soon as the landlord changes the character of his possession the tenant ceases to be a trespasser and becomes a tenant holding over with the consequences laid down in sec. 116 of the Transfer of Property Act. " 7. The rule which can be deduced from these authorities is that is a question of fact in each case whether the land-lord by assenting to the tenant's continuing in possession after the termination of the lease altered the character of his possession from that of a trespasser to that of a tenant holding over. The intention of the parties as well as their conduct is relevant in determining whether a tenant who continued in possession of the land after the termination of his lease was a tenant holding over, or a trespasser. On behalf of the respondents it is contended that though sec. 116 of the Transfer of Property Act does not apply to agricultural leases, its equitable principles would apply to as laid down in AIR 1947 Nagpur page 48 and AIR 1940 Madras page 410. It was also urged that in the Rajasthan (Protection of Tenants) Ordinance, No. IX of 1949, a trespasser was defined as follows : - "trespasser means a person who takes possession of unoccupied land without authority or who prevents another person from occupying land duly let out to him. " This definition as would appear from the use of the word 'means' is exhaustive. In this case the respondents neither took possession of unoccupied land without authority nor did they prevent another person from occupying land duly let out to him. They were, therefore, not trespassers and the only inference which followed from their continuing in possession was that they were tenants holding over. It was also argued that assent of a land-lord could be gathered from a variety of circumstances such as acceptance of rent or demand for rent or a suit for rent or an agreement as to an item in an account for rent or the grant of an invalid lease. Reliance was placed on the provisions of sec. 209 of the Indian Evidence Act which runs as follows : - "when the question is whether persons are partners, land-lord and tenant or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand, to each other in those relationships respectively, is on the person who affirms it. " It was stressed that a presumption could be raised in favour of the respondents and the burden of proof lay on the appellant to establish that they had ceased to be his tenants even after the termination of the lease. It is necessary to advert to the facts of the case in order to find out whether the appellant had expressly or by his conduct assented to the contesting respondents' continuing in possession of the land in dispute. The appellant brought a suit against the respondent for recovery of arrears of rent amounting to Rs. 100/- for Svt. years 1999 to 2002 on 26. 11. 45. My attention was drawn to para four of the plant in which it was alleged that the defendants 1 and 2 were continuing in possession of the land without the consent of the plaintiff. The words appearing in the plaint only described the fact that the defendants were in possession of the land in suit, and had not obtained the consent of the land-lord. These words did not indicate beyond a shadow of doubt that the landlord by his conduct had not assented to their continuing in possession. As I have pointed out above the conduct of the parties is relevant in order to determine whether the relationship of land-lord and tenant subsisted between them. The conduct is certainly more eloquent than words. In this case the appellant by bringing a suit for recovery of rent indicated clearly that he had impliedly though not expressly assented to the respondent's continuing in possession of the land. In 1903, 207 Bombay 262 such conduct on the part of the landholder was deemed sufficient to constitute assent. Another circumstance which can be construed against the appellant is that he remained quiet for a number of years after the termination of the tenancy and instituted a suit for recovery of rent in the year 1945 which corresponds to Smt. 2002. During this period he did not raise any protest against the respondents 1 and 2 continuing in possession of the land in dispute. Taking these facts into consideration it cannot be said that the contesting respondents were trespassers. The juridical relation subsisting between them and the appellant indicated beyond any manner of doubt that they were tenants holding over after the expiry of the lease. I would, therefore, agree with the view of my learned colleague Shri Shyamlal and hold that the decision of the lower appellate court was correct. In the result I would dismiss the appeal. . ;