The circumstances that give rise to this second appeal may be stated thus: — Narain Singh, Kehri Singh, Ramnath Singh and Smt. Bhuri plaintiffs brought a suit against Mangal, Parbhati, Bihari, Mohan and Ramballabh defendants on 16.1.1956 in the court of the S.D.O. Rajgarh (Alwar) for ejectment from the land in dispute. It was averred in this plaint that the plaintiffs were the land holders who admitted the defendants as tenants on 14.5.195* for a period of two years only, that after the expiry of the lease the defendants did not give up possession but continued to cultivate the land, that as this cultivation by the defendants was against the wishes of the plaintiff the status of the defendants was that of trespasser only. It was also averted in the plaint that at the expiry of the lease the Rajasthan Protection of Tenants Ordinance was in force and hence they could not take any steps for their ejectment then and that they could do so only when the aforesaid Ordinance was repealed by the Rajasthan Tenancy Act on 15-10 1955. The defendants contested the claim on the grounds that they had acquired the status of Khatedar tenants and hence were not liable to be ejected. The trial court dismissed the suit on the ground that the defendants were tenants of the disputed land, on the enforcement of the Rajasthan Tenancy Act and hence by virtue of the provisions contained in sec. 15 they acquired the rights of Khatedar tenants. The plaintiff Kehar Singh went up in appeal before the Addl. Commissioner, Jaipur, impleading the other plaintiffs as proforma respondents. The learned Additional Commissioner came to the conclusion that the defen-dents could be held as tenants holding-over only if there be some evidence to show that the land holders had assented to their continuance as tenants either by acceptance of rent or in other manner. As no evidence was led on the point the case was remanded for further enquiry One of the defendants Prabhati has come up in second appeal before us against this decision impleading the other defendants and the plaintiffs as respondents in this appeal.

2. We have heard the learned counsel for the parties. The trial court dismissed the suit with reference to the provisions contained in sec. 15 of the Rajasthan Tenancy Act The learned Additional Commissioner did not consider this provision at all while deciding the appeal and relying on A.I.R. 1955 Patna 158, and 1957 Rajasthan Revenue Decisions 231 held that to prove holding-over by a tenant consent of the landholder was essential. Before examining the law which would govern the case we may point out that in both these decisions the provisions of sec. 15 of the Rajasthan Tenancy Act were not at all examined. In 1957 R.R.D. 231 emphasis was laid on the point that a court acts illegally if it invents new case for a party which it never pleaded in its written statement. After considering the case law on this point the learned Members who decided this case observed that the land was cultivated for the first time in Svt. 2010 and that thereafter the defendants retained unlawful possession of the same and hence were trespassers. The significance of the provision of the Rajasthan (Protection of Tenants) Ordinance and sec. 15 of the Rajasthan Tenancy Act does not appear to have been at all brought to the notice of the learned Member in this case and hence both these provisions did not find any mention in the judgment. The present case shall have to be determined with reference to these provisions.

3. The claim for ejectment is based on the ground that the defendants were admitted to tenancy on 11.5.53 for a period of two years. The Rajasthan (Protection of Tenants) Ordinance was in force at the time of this admission and also on the date when the period of lease expired. Sec. 4 of the Ordinance clearly laid down that during the continuance of the Ordinance no tenant shall be liable to ejectment except on the grounds mentioned in that section. This section therefore, impo

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