A sub-tenant who continues to occupy the land beyond the permissible limit of five years under Section 45 of the Rajasthan Tenancy Act, 1955, becomes a trespasser and is liable to be ejected.

1. This writ petition is directed against the judgment of the Board of Revenue dated 29-4-1981.

2. The brief facts of the case which are relevant for the disposal of this writ petition are that Khem Chand, respondent No. 2 and Rawati Lal, respondent No. 3 filed a suit under Section 1 83 of the Rajasthan Tenancy Act, 1955 (hereinafter to be referred to as the Act) against Banshi, now deceased, the ancestor of the present petitioners for his ejectment from the agricultural lands bearing Khasra Nos. 617, 618, 619, 620, 859, 862 and 863 measuring 18 big has 15 biswas situated in village Pai, tehsil Kama, District Bharatpur. The contention of the plaintiffs-respondents was that they were khatedar-tenants of the lands in dispute and that Banshi had illegally trespassed upon the aforesaid lands in Samvat Year 2014. The plaint was presented on 15/4/1968. Baishi deceased, the predecessor-in-interest of the present petitioners in the written statement denied the aforesaid allegations and, on the contrary, averred that he was in possession of the aforesaid lands as a tenant from S.Y. 2000 and even before as the plaintiffs were in Government service and were not in a position to cultivate the lands in dispute personally. It was further contended that the plaintiffs in S.Y. 2014 executed a document and admitted the sub-tenancy of Banshi. It was therefore, contended that the plaintiffs-respondents are now estopped from asserting that Banshi was a trespasser on the laid in dispute. The suit was tried by the Assistant Collector, Bharatpur, who after framing issues and recording the evidence of the parties dismissed the plaintiff's suit on 16-8-1969. The plaintiffs feeling aggrieved filed an appeal before the Revenue Appellate Authority, Alwar who also dismissed the appeal on 29-11-1971. The Revenue Appellate Authority held that the plaintiffs themselves admitted that they never paid the land revenue to the State after S.Y. 2014, but it was Banshi who had paid the land revenue to the State. It was also held that Ex. D/1 which is written by Khern Chand plaintiff himself reveals that Khem Chand did not have any source to cultivate the land and, therefore, he gave the laid to Banshi as sub-tenant. The Revenue Appellate Authority came to the conclusion that by virtue of Section 19(1)(a) of the Act Banshi had become a khatedar tenant. Madan Lal Patwari and Chaturbhuj. Office Kanungo corroborated the statement of Banshi.

3. The plaintiffs feeling aggrieved filed a second appeal before the Board of Revenue for Rajastha Ajmer. After hearing the parties the Board of Revenue framed an additional issue and remitted the same for finding to the trial Court. The issue framed was as under:-

-Whether the plaintiffs are khatedar tenants and entitled to bring the suit for ejectment ?"

4. The Board of Revenue vide its order dated 20/12/76, remitted this issue to the Asstt. Collector, Bharatpur. The Asstt. Collector after recording the evidence field that Ex. D/1 was not genuine and that Banshi was a trespasser and was never given land as sub-tenant, by his order dated 22/2/1980. After recording this finding the Asstt. Collector, Bharatpur sent the record to the Board of Revenue. The Board of Revenue allowed the plaintiff's appeal and set aside the judgments and decrees of both the learned lower Courts and decreed the plaintiff's suit by order dated 29-4-1981. It was held by the Board of Revenue that Banshi, the predecessor-in-interest of the plaintiffs, was admitted as a sub-tenant from S.Y. 20 14 and after the expiry of five years by virtue of Section 45 of the Act he had become a trespasser and was thus liable to be ejected under the provisions of Section 183 of the Act.

5. Feeling aggrieved against the judgment and decree of the Board of Revenue dated 29/4/1981, the present writ petition has been filed. It has bee, contended on behalf of the petitioners that the Board of Revenue erred in making out a new case which was not set in the plaint. It was conten