- (1.) THIS is a second appeal against the judgment and decree of Additional Commissioner, Ajmer dated 18. 4. 59 whereby he reversed the judgment and decree of the trial court and decreed the suit for ejectment of the defendant who is appellant before us. We have heard the learned counsel for the parties and examined the record also.
(2.) PUT briefly the facts of the case are that the plaintiff-respondent Mandir Shri Nithya Gopalji Maharaj filed a suit with the allegation that the appellant had forcibly entered upon the land in dispute by dispossessing Jagannath - respondent No. 2 to whom the land had been let out by the plaintiff-respondent No. 1 and was, therefore, a trespasser thereon and should be ejected therefrom under sec. 183 of Rajasthan Tenancy Act. The appellant denied the allegation and contended that the plaintiff-respondent No. 1 had taken Rs. 1223-0-3 by way of premium and had allowed him to continue in possession of the land and so he was not a trespasser. Besides these pleas there have been made other allegations also by the plaintiff-respondent No. 1 and they have also been replied by the appellant. For example the plaintiff-respondent No. 1 has claimed the land to be the 'hawala' of the temple and the appellant has claimed it to be his own Khatedari alleging that the well and 'nada' thereon have been constructed by his father. But this is a suit for ejectment of a trespasser u/s. 183 of Rajasthan Tenancy Act and so we do not feel that it is necessary to deal with other allegations in this case. Under sec. 183 of the said Act a trespasser is liable to ejectment if he has taken or retained possession of any land without lawful authority or if he has prevented any other person from occupying the land duly let out to such person. A trespasser has been defined vide sec. 5 (44) to be a person who takes or retains possession of the land without authority or who prevents another person from occupying any land duly let out to him. In this case the allegation is that the land had been let out to Jagannath, respondent No. 2 who was dispossessed by the appellant not that Jagannath was prevented to occupy the land let out to him, and Jagannath's suit for ejectment of the appellant has been admittedly dismissed by a competent Court. It has been alleged that Jagannath got his suit dismissed by collusion with the appellant but it is not easily believable because in this case he has filed written statement in which he has denied this allegation and admitted the suit of the respondent No. 1 in other respects. The appellant can, therefore, be a trespasser, if he can at all be so, only if he has been proved to have occupied this land without any lawful authority or retained the possession over the same without any lawful authority. The dismissal of the suit filed by Jagannath against the appellant in itself is a clear proof of the fact that he did not occupy the land unlawfully. It is admitted by the parties that Rs. 1223/-/3 had been deposited by the appellant with the respondent No. 1 for being conferred upon the rights of a Khatedar over this land. The only contention against it raised by respondent No. 1 is that the money had been deposited by way of Amanat subject to sanction of Khatedari rights by His Highness the Maharaj of Kishangarh who was a supreme authority over the temple affairs and that as the same was not sanctioned by His Highness the appellant could not be deemed to have remained in possession of the land lawfully. It is obviously an argument not tenable in law. For it is also an admitted fact between the parties that the same was never offered to be returned to the appellant nor he was asked to vacate the land. Whether money was deposited under the head 'amanat' or credited to the income of the temple was an internal arrangement of keeping of accounts by the respondent No. 1 and the appellant had neither any control over it nor had he anything to do with it. The fact that money was accepted by respondent No. 1 from the appellant and retained by him from Svt. 2006 to uptil now and was never offered to be returned to the appellant and the appellant was allowed to retain possession of the land and to continue in possession thereof uptil the time of the filing of this suit in itself belies the allegation of respondent No. 1 that the appellant was a trespasser. He was all alone in possession of the land with the consent and the authority of the respondent No. 1 and manifestly he could not be termed as a trespasser under the law. He might be anything else but certainly not a trespasser. The line of reasoning adopted by the learned Additional Commissioner, Ajmer that the mere deposit of the money could not automatically create Khatedari rights in favour of the appellant is clearly a wrong approach. The case between the parties was not that of Khatedari rights or otherwise but was one for ejectment of a trespasser, and the main and foremost point for determination was whether the appellant could be termed under the provisions of Rajasthan Tenancy Act to be trespasser or not. When money is accepted from the appellant and he is allowed to retain the possession of the land he can not be trespasser and even if he has failed to prove that he had been admitted to the land lawfully his having been allowed to retain possession of the land lawfully was in itself sufficient to term him not a trespasser. The learned Assistant Collector who tried the suit made a very correct approach to this aspect of the case when he decided that letting the appellant remain in possession of the land after accepting the money was equivalent to lawfully of entering upon and retaining the land by the appellant and he could not be termed as a trespasser. We are therefore inclined to agree with the learned trial court and do not find it possible to uphold the decree of the learned lower appellate Court. In this reference it may also be mentioned that Rajasthan Tenancy Act, 1956 has come into force since this transaction took place. Under Sec. 15 thereof any person found to be in possession of the land as a tenant was to become a Khatedar on the date of the enforcement thereof i. e. 15-1:0-55. When the appellant had been retaining possession of the land under lawful authority from respondent No. 1 he was a tenant on 15. 10. 55 and so by intervention of law he has acquired Khatedari rights also. He can not, therefore, be ejected as a trespasser. We, therefore, accept this appeal, set aside the orders and decree of the learned Addl. Commissioner, Ajmer and restore that of the learned Asstt. Collector, Kishengarh dated 17. 9. 1958 and dismiss the suit. .;