- (1.) GOVIND Sahai, the plaintiff appellant whose suit for restoration of possession was decreed by the trial court has filed this appeal against the decision of the learned Addl. Commissioner, Jaipur dated 11. 1. 57 who reversed the decree of the trial court and directed that the suit be dismissed.
(2.) THE plaintiff's case before the trial court was that he has a landlord had let out half of field No. 594 to Fatta the respondent No. 1 and the other half to Moolia, Sampat and Chhajya the other defendant-respondents who subsequently relinquished the same in favour of the plaintiff appellant who started cultivating it but Fatta, the defendant unlawfully took possession of it in Asad Svt. 2011 without any authority. It was also urged that similarly out of field No. 567 Fatta the defendant also unlawfully took possession of 27 biswas of land. THE plaintiff therefore prayed for restoration of possession on the land in dispute. Fatta the defendant in his written statement denied the allegations and urged that the land in dispute had been in his cultivatory possession for the last 15 or 16 years and that it was not relinquished by the other defendants in favour of the plaintiff, who never cultivated it in the past. THE other defendants did not put in any written statement. THE trial court after framing necessary issues decreed the plaintiff's suit and directed the ejectment of Fatta from the land in question out of field Nos. 594 and 567. Fatta went in appeal before the learned Addl. Commissioner who, however, took a different view of the case and reversed the finding of the trial court and dismissed the suit. THE plaintiff has now come in appeal against the aforesaid decision of the Addl. Commissioner. We have heard the learned counsel appearing for the parties and have examined the record of the case. The learned counsel for the appellant during the course of his argument however withdrew his claim about field No. 567 and argued the appeal only in respect of field No. 594. It was argued that Sampat and Moolia who were examined by the plaintiff had clearly stated in their examination that they surrendered the land in favour of their land-lord namely the plaintiff, and that there was nothing in their evidence or any other witness to disbelieve the plaintiff's case. It was also urged that the defendant Fatta neither in his statement nor by any other means could show as to how to get possession of the disputed 'land which had ever since been cultivated by Sampat, Moolia and Chhajya. It was therefore urged that on the basis of the evidence on record the learned Addl. Commissioner took a wrong view in the matter and his decision could not be supported. The learned counsel for the respondent argued that the plaintiff appellant could not produce any written agreement between him and the other respondents namely Sampat, Moolia and Chhajya in support of the contention that they had relinquished the land in his favour as landlord and In the absence of any such document the oral evidence of these*two witnesses viz. , Sampat and Moolia which was not corroborated by Chhajya who was examined as a defence witness could not be relied upon. It was also urged that there is nothing in the evidence of the plaintiff to prove that he was actually dispossessed by Fatta the respondent. As the lower appellate court has reversed the finding of the trial court on a question of fact, we have ourselves read the statement of the witnesses examined by the parties in the exercise of our powers under sec. 224 (iv) of the Rajasthan Tenancy Act, in order to see whether or not the decision in appeal is contrary to the weight of evidence. The plaintiff in his sworn testimony stated that the Chank of this land namely 2 bighas, 11 biswas out of field No. 594 which had been in the cultivatory possession of Moolia, Sampat and Chhajya in the proportion of 1/8, 1/4 and 1/8 respectively since long had been voluntarily relinquished by them in his favour. It is true that no written deed of relinquishment has been produced, but when Moolia and Sampat themselves on being examined stated on oath that they had done so we rule out the contention of the learned counsel for the respondents that in the absence of a written deed of relinquishment the oral evidence on the factum of surrender by the persons themselves should be disbelieved, especially, when there is nothing in their cross-examination to throw any doubt on the truthfulness of their depositions. Chhajya as a defence witness, however, deposed that his share of the land was still in his possession and that he did not relinquish it in favour of the plaintiff. He does not say that he had given it over to Fatta. Fatta himself in his statement clearly stated that Sampat and Moolia relinquished the land in favour of the plaintiff because they could not pay the rent, as and when it fell due. The flower court on the basis of this evidence correctly held that the plaintiff had proved his case and that Fatta was clearly a trespasser. The lower appellate court in our opinion, did not correctly weigh the evidence and based its decision simply on the statement of Chhajya which also does not help the appellant to meet the case put up against him by the plaintiff-respondent. In R. R. D. 1955 page 221 the Board has held that when a defendant is unable to show as to how he came in possession of the disputed land he should be held to be a trespasser liable to ejectment. It is a well established rule of law as held in A. I. R. 1949 P. C. 32, that on a question of fact if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially, if that conclusion has been arrived at on a conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight. In the case before us, we have ourselves carefully perused the evidence on record and are satisfied that the conclusion arrived at by the trial court is based on a sound reasoning and accordingly we agree with it. In the result we allow this appeal, set aside the decision of the lower appellate court and restore that of the trial court with the modification that the suit shall stand decree only in respect of the disputed area in field No 594. .;