A tenant holding over after the expiry of a fixed term tenancy is not a trespasser but a tenant-holding-over. His possession is juridical and protected from unauthorized ejectment.

1. This is a writ petition under Article 226 of the Constitution of India filed by Nandigir and two others against Padamdas and the Board of Revenue, Rajasthan, paying that a writ of Certiorari an appropriate writ, order or direction be issued to quash the judgment of the Board of Revenue, dated 18th of July, 1962 in appeal No. 21 of 1960.

2. The facts of the case are that Nandigir, disciple of Ratigir, was holding a piece of land, measuring 70 Bighas, 2 Biswas, comprised in Khasra No. 593 in village Nohar as a Muafi. The said land was given for cultivation to Padamdas on 1st of July, 1952 for three years, that is, for Samvat years 2009, 2010 and 2011 and it was specifically mentioned in the lease deed executed by Padamdas that he would surrender the land to the petitioner after the expiry of the period of the lease. Pursuant to the condition of the lease, petitioner served Padamdas with a notice on the 7th April, 1955 to return the land to the petitioner as the period of the lease had expired but the respondent did not pay any deed to the above notice as the Rajasthan (Protection of Tenants) Ordinance, 1949 was in force where under no tenant could be ejected from his holding save as provided in that Ordinance. On 15th of October, 1955, the Rajasthan Tenancy Act (Act No. 3 of 1955) came into force which repealed the provisions of Rajasthan (Protection of Tenants) Ordinance, 1949 and enacted certain provisions under which suit for ejectment of a tenant could be filed by the landholder. Petitioner filed a suit for ejectment of Padamdas from the disputed land on 14th of January, 1957, in the Court of the Sub-Divisional Officer, Nohar. The suit was contested by respondent Padamdas on various grounds, the main ground being that the suit was misconceived as it did not relate to Khasra No. 593, and secondly, the petitioner was not entitled to seek relief under Section 183 of the Rajasthan Tenancy Act as Padamdas, under the circumstances of the case, could not be treated as a trespasser. The learned Sub-Divisional Officer, Nohar, dismissed the suit of the petitioner holding that the identity of the disputed land could not be ascertained from the averments made in the plaint and that Padamdas could not be ejected from the land under Section 183 of the Rajasthan Tenancy Act as he was not a trespasser. Petitioner Nandigir filed an appeal against this order of the Sub-Divisional Officer, Nohar and obtained a decree in his favour from the Court of the Commissioner, Bikaner Division, Bikaner, who held that the respondent Padamdas was a trespasser as he was retaining the possession of the suit land after the expiry of the period of the lease without any lawful authority from his land-holder and as such the order for ejectment could be passed under section 183 of the Rajasthan Tenancy Act in favour of the petitioner. Against this order of the Commissioner, Padamdas preferred a second appeal in the Board of Revenue for Rajasthan. After hearing both the parties the Board accepted the appeal of Padamdas and observed that the respondent Padamdas could not be treated as a trespasser under the provisions of the Rajasthan Tenancy Act and, therefore, a decree for ejectment could not be passed against Padamdas under Section 183 of the Rajasthan Tenancy Act. It was, however, casually mentioned by the Board that Padamdas having been admitted as a tenant is liable to ejectment only as a tenant and not as a trespasser. It is against this order of the Board of Revenue that petitioner Nandigir has come to this Court and has filed the present writ petition.

3. Mr. Acharya on behalf of the petitioner has urged that the lease was for a fixed term of three years and, therefore, after the expiry of the period of lease, when a notice was served on the respondent by the petitioner to surrender the land, he had no authority to retain the possession of the suit land, and therefore, Padamdas could not in any manner, be declared by the Board of Revenue as a ten