- (1.) THIS second appeal of the appellant-defendant, Mohan Lal S/o Amarchandji Sindhi, who is now represented by his legal representative, Kamlesh S/o Mohan Lal, was filed in this Court under Section 100 of the Code of Civil Procedure, 1908, way-back on 24.02.1983 and is one of the oldest second appeal pending in this Court, which has the second round of its decision after remand by the Hon'ble Supreme Court while deciding the Civil Appeal No.2277/2011 {SLP (C) No.10096/2006}- Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & others, on 02.03.2011 setting aside the previous decision of this second appeal by the learned Single Judge of this Court on 06.01.2006 dismissing the present second appeal of the defendant-appellant. While dismissing the second appeal of the defendant-appellant on the sole and following substantial question of law, which was framed at the time of admission of the present second appeal on 06.07.1983, which reads as infra: - "Whether the suit was triable by the civil court?"
(2.) WHILE dismissing the present second appeal, the learned Single Judge of this Court on 06.01.2006 held that the civil court had the jurisdiction to decide the suit for ejectment filed by the respondent-plaintiff, Liquidator, Bhopal Cooperative Society Ltd. (for short, hereinafter referred to as 'BCSL') and the objection raised by the original defendant, Mohan Lal that only revenue court had jurisdiction to try the present suit since the land in question was agricultural land in view of bar of jurisdiction contained in Section 207 of the Rajasthan Tenancy Act, 1955 was negatived in the following terms: "I considered the submissions of the learned counsel for the parties. It appears that the defendant took the plea because the land has been shown as agricultural land in lease deed Ex.1. In the lease deed Ex.1, word "Industry" used for poultry-farm, sheep-breeding center and dairy- farm but it is clear from the lease deed itself that the lessee was permitted to grow crops like, Jawar, barly, methi, corn, mutter, gram and lahasun etc. but only to feed cattle and birds of his dairy, poultry birds and sheep with specific restriction against use of land for agricultural business. Even if it is ignored that for what purpose the land was given to the plaintiff by the State Government, and even if it is accepted that the land in question is agricultural land even then merely on the basis of this permission to grow crop, the nature of tenancy cannot be considered to mean for agricultural purpose. For deciding nature of tenancy, what is relevant is the nature of tenancy and not the nature of the land. Even if an agricultural land is let out for any non-agricultural purpose and it is not permissible in the law governing agricultural tenancy, then consequence may follow and action may be taken against the lessor katedar tenant of the agricultural land as provided under the relevant Act but it will not change the nature of the tenancy. Therefore, crucial issue was whether the premises was let out for agriculture purpose or it was let out for any other purpose. Second question would be, if it was out for any purpose other than agriculture purpose then whether it was let out for industrial purpose because there is a reference of "industry" in the lease-deed Ex.1. Because of the use of the words "agricultural" and "industry" in the lease-deed and because of permission to grow certain crops in terms of the lease-deed, it is sought to be advanced that the lease is for agriculture purpose. To examine this aspect of the matter, it will be necessary to find out the real intention of the parties in letting out the land in question to the defendant. The intention has been made clear in the lease-deed itself, which says as under: - "The lessor hereby demises to the lessee for the purpose of starting poultry, sheep breeding and dairy Farms on the plot of 30 bighas of agricultural land..." Therefore, the land was let out for establishing poultry-farm, sheep breeding center and dairy farm, though over an agricultural land. The condition no. (viii) of the lease-deed is as under:- "That the lessee will grow only fodder crops i.e. Jawar, barly, methi, corn, mutter, gram and lahasun as are required for the bonafide use of the cattle and will not grow such crops as to make any agricultural profit out of them." A bare reading of this condition no. (viii) makes it clear that by this lease, the defendant was restrained from growing any crop so as to make profit from agriculture produce. He was bound down to grow only the crops which are required for the bonafide use of the cattle only. Therefore, the purpose is unambiguously clear from the condition of the lease-deed itself that permission to grow limited crops was ancillary to main purpose of establishing poultry, sheep breeding and dairy farming. Agricultural business was specifically prohibited by the condition in the lease-deed itself. Therefore, this lease was not for agricultural purpose. When the terms and conditions in a deed are unambiguous and clear, even the parties cannot supplement the facts and reasons to give a different intention than which comes out from the lease-deed itself. It appears that in the lease-deed a condition was also put that the defendant shall develop the industry within one year from taking possession of the land. The word "industry" has been used not with intention to make the lease for industrial purpose. The intention of the plaintiff to let out the property has been made clear in para no.2 of the plaint where the plaintiff stated that to give some facilities to the members of the town to be established by the plaintiff- society, it was decided to run a poultry farm, sheep-breeding center and dairy-farm. The defendant in his written statement particularly in para 5 of the additional pleas unequivocally admitted that the defendant took the land for establishing poultry farm, sheep-breeding center and dairy- farm and in the last line of para 5 of the written statement stated that it is not possible to run the poultry-farm, sheep- breeding center and dairy-farm because of the obvious reason that half of the land was acquired by the State Government. Therefore, the defendant understood well that the intention to let out the property was not for the agricultural purpose nor for the industrial purpose but it was for the benefit of the members of the township of the plaintiff-society. The expression 'manufacturing purpose' was examined by the Hon'ble Apex Court in the case of Allenbury Engineers (Pvt.) Ltd. vs. Shri Ram Krishna Dabina (AIR 1973 SC 425), wherein Hon'ble the Apex court held that:- "The expression 'manufacturing purpose' in the section means the purpose of making or of fabricating articles or materials by physical labour or skill or by mechanical power vendible or usable as such. There must be a transformation into a different article or material having a distinctive name, character or use, or even fabricating a previously known article by a novel process. Where the manufacture of spare parts was incidental to the main purpose of disposal of vehicles in order to repair or re-condition then, the dominant purpose of the lease would still have to be regarded as storage and re-sale and not as a manufacturing purpose." Therefore, the dominant purpose in the present lease appears to be establishing a poultry-farm, sheep-breeding center and dairy-farm for the benefit of the members of the locality of the plaintiff-society, may it be by using agricultural land or Abadi land, as the nature of the land in the present facts and circumstances of the case is irrelevant. At this stage it will be worthwhile to mention here that the plaintiff pleaded that the State Government gave the land to the plaintiff which is uncultivable, for setting the refugees by working out development of the colony and the two courts below held that the land is not agricultural land. For arriving at finding of fact, the courts below relied upon the statement of the plaintiff and considered the fact that the defendant did not produce any evidence to prove that land is agricultural land. I need not to go into this aspect of the matter whether the land is agricultural land or not but it is clear from the evidence available and from the lease-deed Ex.1 itself that the lease was granted for non-agricultural purpose and non-industrial purpose. In view of above, the civil court had jurisdiction to hear the suit." The matter was taken to Supreme Court by the defendant, Kamlesh (legal representative of original defendant, Mohan Lal) by filing SLP No.10096/2006, which was later one registered as Civil Appeal No.2277/2011- Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors. and came to be disposed of by Apex Court remanding the case back to this Court with the following directions: - "A bare reading of the judgment of the High Court makes it clear that neither the definition of the word "agriculture" as given in Section 5 (2) of the Rajasthan Tenancy Act, 1955 nor the definition of the word "land" as given under Section 5 (24) of the said Act could be considered by the High Court before recording a finding that the land was an agricultural land. The learned counsel for the respondents has contended that cattle breeding, dairy farming, poultry farming and forestry development were considered to be activities relating to agriculture with effect from June 22, 1978, in view of the amendment made in sub- section 2 of Section 5 of the Act and therefore, the High Court was justified in passing the decree of eviction whereas the learned counsel for the appellant contends that even if the said amendment, is ignored for the time being, cattle breeding, dairy farming, poultry farming and forestry development were always considered as a part of agricultural activities by this Court. In support of this plea, the learned counsel for the appellant has placed reliance on the decision of this Court in Maheshwary Fish Farm Seed Farm Vs. T.N. Electricity Board and Another (2004) 4 SCC 705. It may be mentioned that after receipt of notice in the present matter, the respondent No.1 has filed counter affidavit in June 2007 along with the said affidavit, a copy of the order of the Government of Mewar, Revenue Department dated December 18, 1947 is produced as Annexure R-1 for perusal of the Court. In the reply, it is mentioned that 625 bighas and 2 biswas of land, allotted to the society comprised agricultural, non agricultural land and banjar lands and at the time of allotment of the land, the same was ordered to be taken in Halka Abadi by the sovereign Ruler who had exclusive power to change the user of the land. What is stated in the reply is that since 1947 the user of the land was changed and whole of the land was made abadi land. On consideration of the said document, this Court is of the opinion that in fact, this document should have been produced before the High Court for its consideration. However, it is clear that by producing the said document what is contended by the respondent is that the land in question was not an agricultural land and was forming a part of the abadi land and therefore, Civil court had jurisdiction to entertain the suit filed by the respondent No.1. One of the arguments advanced by the learned counsel for the appellant was that the deceased lessee was entitled to grow crops like Jawar, Barley, Methi, Guar, Muttar, Gram for the use of cattle and activities such as cattle breeding etc. will part of agricultural operations for which lease was executed. The above discussion makes it very clear that several questions could not be effectively considered by the High Court before deciding the question whether the land was let out for agricultural purpose or the land was let out for any other purpose. Under the circumstances, the learned counsel for the appellant prays that the matter be remitted to the High Court for fresh consideration on merits. The learned counsel for the respondent has left the matter to the Court for passing appropriate orders. On the facts and in the circumstances of the case, this Court is of the view that interest of justice would be served if the matter is remitted to the High Court for fresh consideration on merits and the High Court is requested to dispose of the appeal expeditiously. For the foregoing reasons, the judgment dated January 6, 2006 rendered by the learned Single Judge of the High Court of Rajasthan at Jodhour in SB Civil No.78 of 1983 is hereby set aside. The matter is remitted to the High Court for reconsidering the same afresh and on merits. It is clarified that it will be open to the parties to file additional documents before the High Court in support of their respective claims. The documents that may be produced shall be treated as permitted to be produced under Order 41 read with Section 27 CPC by this Court. This judgment shall not be construed as having expressed any opinion on the merits of the case. As the matter is very old, the High Court is requested to dispose of the Second Appeal as early as possible and without any avoidable delay. Subject to the above mentioned directions and clarifications, the appeal stands disposed of."
(3.) AFTER remand by the Hon'ble Supreme Court, additional documents were filed along-with application under Order 41 Rule 27 CPC by the appellant-defendant vide application (IA No.10279/11) filed on 06.07.2011. The defendant has filed two additional documents, namely, copy of original lease-deed dated 29.05.1951 and copy of minutes/resolution of the plaintiff-BCSL dated 13.07.1954.;