- (1.) THE circumstances that give rise to this appeal may briefly be sated thus: -
(2.) GHISA applied on 28. 7. 52 for reinstatement under sec. 7 Raj. Protection of Tenants Ordinance (since repealed) against Rambool Singh before S. D. O. Behror, with the allegation that he (GHISA) was a non-occupancy tenant of the land in dispute in Svt. 2008 and that Rambool Singh who was discharged from the army sometime in 1951-dispossed him wrongfully on 27. 7. 52. Rambool Singh contested the claim on the ground that the provisions of the Ordinance were not applicable to lands belonging to Military personnel. The trial Court upheld this plea and rejected the application. GHISA came up in revision before the Board which accepted the same and remanded the case back to the trial Court with the observation that as the land was let out to GHISA by Rambool Singh after his discharge from the Military the provisions of the ordinance would not be applicable to the present case which therefore needed determination on merits. The S. D. O. on further enquiry allowed the application and ordered reinstatement of GHISA. Rambool Singh came up in revision before the Board but met with no success. GHISA was put in possession over the land on 26. 6. 55. Rambool Singh filed a writ petition in the High Court challenging the validity of the Board's decision. The same was accepted on 12. 7. 56. Their Lordships were pleased to observe that the interpretation put on the Government Notification No. F. 1 (4) Rev/51 dated 11th January, 1951 by the Board was very narrow and was not borne out by the clear language of the Notification. The decision of the Board was, therefore, set aside and it was held that GHISA was not eligible to seek protection under the Ordinance and the only course left to him was to resort to the ordinary law. Rambol Singh thereafter applied for restitution under Sec. 144 CPC and took back the possession of 7. 8. 56. Thereafter GHISA filed this suit for recovery of possession and declaration of his khatedari rights over the land in dispute. It was alleged that even a Military personnel was not entitled to take the law into his own hands and that he should have sought GHISA's ejectment under the provisions of the Alwar State Revenue Code which was then in force. Rambool Singh in his written statement pleaded that he did not dispossess the plaintiff and as subsequent clarified by him his contention was that the plaintiff voluntarily surrendered that tenancy. Limitation was also pleaded. The trial Court after framing necessary issues and recording the evidence of the parties came to the conclusion that the plaintiff GHISA was in possession as a tenant over the disputed land on 27. 7. 52, that he was dis-possessed wrongfully therefrom and that he was entitled to recover possession. The suit was accordingly decreed in GHISA's favour. Rambool Singh went up in appeal before the Additional Commissioner Ajmer who by his decision dated 12. 8. 58 allowed the same and set aside the judgment and decree of the trial Court. Hence, the second appeal by GHISA plaintiff. The lower appellate Court has observed that "the learned lower Court has definitely erred in deciding issue No. 1 in favour of plaintiff whereby it has been held that the defendant dispossessed the plaintiff on 27. 7. 91 when there is no evidence to this effect on record. . . . . In this case the burden lay heavily on the plaintiff to prove his case that he was forcibly dispossessed by the defendant but since he has not been able to prove this allegations contained in his plea it would not be competent for the lower Court to draw an inference to the effect that the defendant forcibly occupied the land in Svt. 2009 because the plaintiff was tenant for one year in Svt. 2008. The finding on issue No. 2 has been given in the light of issue No. 1 and since the finding on issue No. 1 is not justified the finding on issue No. 2 is not maintainable. It will not be out of place to observe here that the tenancy of a tenant from year to year expires on the expiry of the term and since the plaintiff in this case was a tenant in Svt. 2008 only his status as a tenant after the expiry of the term ceases, the one is not a tenant in law on 15. 10. 56 when the Rajasthan Tenancy Act came into force, khatedari rights had been accrued to him. " On going through the portion of the judgment one would gather the impression that the learned Addl. Commissioner was of the view that the plaintiff was not dispossessed on 27. 7. 52 and that he continued in possession. This is obviously wrong. As pointed out above, on 28. 7. 52, the plaintiff applied for reinstatement under Sec. 7 of the repealed Ordinance and as a result of it he was eventually placed in possession after dispossession of the defendant. Thus it cannot be denied that on 28. 7. 52 when Ghisa sought reinstatement he was out of possession and that Rambool Singh defendant was in possession of the disputed land. Thus naturally the question that was to be determined boiled down to this whether Ghisa voluntarily surrendered his tenancy or he was dis-possessed wrongfully. As observed by the trial Court the defendant in his statement had not raised the plea of voluntary surrender nor any documentary evidence was adduced by him to support this plea. Accordingly this plea of voluntary surrender was dis-believed by the trial Court. The learned Additional Commissioner reversed this finding without saying a wrd about it in this judgment. In fact, the question of voluntary surrender is conspicuous by its absence from the judgment of the learned Additional Commissioner and it is indeed surprising as to how a finding against wrongful dis-possession could be arrived at without examining this plea. In the present case the learned Additional Commissioner had arrived at a finding entirely different from that of the trial court and hence it was incumbent upon him to examine thoroughly the line of reasoning adopted by the trial court and to expose its fallacies if any. The finding of the learned Additional Commissioner is evidently untenable for it is not only against the evidence on record but is against natural presumptions as well. It has been admitted before us on behalf of the defendant respondent that in Svt. 2008 (1951-52) Ghisa was in possession over the dis-puted land after having been admitted as a tenant thereof. It has been admitted that he was not dispossessed in due course of law under the provisions of the repealed Alwar State Reve-nue Code. Thus a question naturally arises as to how was he dispossessed. An attempt was made to argue before us that as the defendant is a military personnel the plaintiff could have no tenancy rights against him and as such and it was not necessary to eject him in accordance with law. The absurdity of such a proposition is too manifest to need any examination. The Govern-ment notification regarding application of the repealed Ordinance to lands of military personn-nel simply denied the speedy remedy laid down in the Ordinance to tenants of land belonging to military personnel thereby requiring them to resort to ordinary law. But on the basis of this exemption it could by no stretch of imagination be argued that tenants of land belonging to military personnel were to be deprived completely of their rights which they had under the law or that some super law status was conferred upon military personnel. Under the peculiar circumstances of the case a heavy burden lay upon the defendant to show that the plaintiff had voluntarily surrendered the tenancy. In fact, this plea did not come at the right opportunity nor any reliable evidence was adduced to substantiate it. Thus the natural inference would be that the plea was a product of after-thought and it was not worthy of any serious consideration The finding of the trial court, was, therefore, perfectly justified. Its reversal by the learned Additional Commissioner is completely without any justification or any logical validity. Another ground on which the decision of the trial court was reversed by the learned Additional Commissioner is about the limitation. It has been observed that Ghisa was not entitled to seek advantage of sec. 14 of the Indian Limitation Act as there was no "legal bar to seek remedy under the normal law which he seeks now". This is again an approach in the wrong perspective. Sec. 14 of the Indian Limitation Act lays down that in committing the period of limitation prescribed for any suit the time during which the plaintiff has been prose-cuting with due diligence another civil proceeding whether in a court of first instance or in a court of appeal against the defendant, shall be excluded, where the proceeding founded upon the same cause of action and is prosecuted in good faith in a Court of first instance or in a diction or other cause of like nature is unable to entertain it. it would be difficult to conceive of a case where this provision would be applicable more fully than the present one. A pointed out above, the plaintiff was dispossessed on 27. 7. 52 and on the following day applied for rein-statement under sec. 7 of the Ordinance. The relief sought by him was granted by the trial Court as well as the Board though eventually the High Court was pleased to held that the provisions of the Ordinance were not applicable in the present case. It cannot, therefore, be said that the plaintiff was not prosecuting with due diligence another civil proceedings. In fact, his due dili-gence is clearly transparent throughout these proceedings' The moment he was dispossessed he applied for reinstatement. As soon as he was successful he got the order of reinstatement ex-ecuted. Eventually when restitution proceedings terminated against him he instituted the present suit. There has been no undue latches or willful delay on his part. We may also re-fer to the provisions of sec. 29 of the Indian Limitation Act which lay down that "where any special or local law prescribes a special limitation for suit, appeal or application then the pro-vskms contained in secs. 4, 9 to 18 and 22 of the Limitation Act shall apply in so far as and to the extent to which they are not expressly excluded by such special or local law". The Raj. Tenancy Act does not expressly exclude the application of these sections. On the contrary, sec. 214 of Rajasthan Tenancy Act mates the provisions of the Indian Limitation Act appli-cable to proceedings under the Rajasthan Tenancy Act. It was also argued that as the plaintiff was not in possession on 15. 10. 55 as a tenant he should not be deemed to be a Khatedar tenant or a tenant eligible to any relief under the Raj. Tenancy Act. In the first place it is a fact that the plaintiff was in possession on 15-10-55 having been restored to possession earlier than that. He was deprived of his possession in restitution proceedings subsequently to the enforcement of the Rajasthan Tenancy Act, Secondly, even if this fact is ignored, it would be apparent that he was entitled to continue in possession unless ejected in accordance with the provisions of the law. A tenant who is wrongfully dis-possessed would be deemed to be constructively in possession as against the trespasser, The result is that the grounds on which the learned Additional Commissioner has reversed the decree of the trial court are clearly untenable. We, therefore, agree with the findings arrived at by the trial court and hold that the plaintiff was dispossessed wrongfully and that he is entitled to be put back in possession, we accordingly allow this appeal, set aside the judgment and decree of the Additional Commissioner, Ajmer and restore those of the trial court (S. D. O. Behror ). . ;