LODHA, J. - (1.) THESE are two connected appeals directed against the judgment and decree by the District Judge, Jhunjhunu dated 1-6-1972 by which the learned Judge upheld the judgment and decree by the Civil Judge, Jhunjhunu dated 30 9-1966 in Civil Suit No 166 of 1960.
(2.) IDOL of Thakurji Shri Dwarkadheesji installed in 'kund' Boharaji situated in the town of Khetri filed the suit through its Sewak and manager Durga Prasad against the defendants Gopal and Ramdeo on 4-6-1960 in the Court of Civil Judge, Jhunjhunu alleging that there was a garden (Bagh) enclosed with a 'pucca' compound wall within the boundary of the temple and the pond 'kund' attached to the temple, measuring 16-1/2 Bighas 2 Biswas bearing Khasra Nos. 1399, 1404, 1406, 1417, 1421, 2081/1403 and 2082/1402. The land in which the pond, well, garden and the temple are constructed was granted to one Dwarka Parsad, an ancestor of Durga Prasad by the Raja of Khetri on Migsar Bad 4, S. 1907. The original 'patta' has been placed on the record and marked Ex. 14. The plaintiff's case is that Durga Prasad's father Sheolal died on 12-1-1935 from which date the estate of Sheolal was brought under the management of the Court of Wards til 1 2-5-1955. It is stated that during the period the estate remained under the management of the Court of Wards, the land and the garden were managed through paid servants who gradually destroyed the garden and started cultivating crop in the land under the garden which they had no right to do. The plaintiff goes on to state that after the estate was released from the management of the Court of Wards, Durga Prasad leased out the land in question to the defendants Ramdeo and Gopal for a period of one year from 2-5-1955 for a consideration of Rs. 115/-, and vegetables, fruits and flowers. The original agreement of lease has been placed on the record and marked Ex. 35. Along with the land, the defendants were allowed the use of certain apartments mentioned in para 6 of the plaint. The plaintiff's complaint is that the defendants had converted the land of the garden into agricultural land which they had no right to do. He alleged that the plaintiff wants to put up a garden on the whole land, and that the 'kachcha' and 'pucca' houses in the garden are required by the plaintiff for the temple and therefore the defendants may be asked to vacate the land as well as the houses. The plaintiff also served a notice of ejectment. He prayed for a decree for possession of the apartments mentioned is para No. 6 of the as well as the land under the garden and for mesne profits at the rate of Rs. 2/- per plaint day. An objection was taken by the defendants that the property in question had been resumed but had thereafter been declared as the personal property of the plaintiff by the order of the Jagir Commissioner dated 28-1-1964. Consequently, the State of Rajasthan was also added as a party to the suit. Defendants Nos. 1 and 2 filed separate written statements, though the pleas taken by them ate identical. They pleaded that the suit was in respect of agricultural land not cognizable by Civil Court. They also objected that the suit was barred by limitation, that the lease deed being unregistered was inadmissible in evidence, and that the notice of ejectment was not legal and valid. The State of Rajasthan, however, did not contest the suit and was proceeded against ex parte. The learned Civil Judge, Jhunjhunu by his judgment dated 4-6-1960 held that the land in question was agricultural land and therefore the suit was triable by Sub divisional Officer, Khetri and consequently he directed that the plaint be returned for presentation to the proper court. On appeal against this order, the District Judge, Jhunjhunu by his judgment dated 18-2-1963 set aside the order of the Civil Judge and directed the lower court to first decide the question whether the land in dispute fell within the 'abadi' land of the Khetri Town? After remand the trial court recorded the evidence produced by the parties and by its judgment dated 30-9-1966 decreed the plaintiff's suit for ejectment against the defendants and also granted a decree for damages for use and occupation of the property in dispute at the rate of Rs. 1/- per day from 2-5-1960 till delivery of possession of the property to the plaintiff. Aggrieved by the judgment and decree of the trial court the defendants filed appeal which was dismissed by the District Judge, Jhunjhunu on 25-7-1967 on the preliminary ground that it was not maintainable. The defendants thereupon filed a second appeal to this Court which was registered as S. B. Civil Second Appeal No. 316/1967, and the same was allowed by the order of this Court dated 12-7-1969, and the case was remanded to the first appellate court for disposal on merits. Thereafter the learned District Judge, Jhunjhunu upheld the judgment and decree of the trial court and dismissed the appeal by his judgment dated 1-6-1972. Consequently, the two defendants filed separate appeals to this Court. Only two points have been urged by the learned counsel for the appellants. It has been argued, in the first instance, that the subject matter of the suit is not agricultural land and therefore the suit is not triable by civil court. The second point is that the decree for ejectment is bad in as much as even if the land in question is held to be 'abadi land' the plaintiff has failed to prove any of the conditions for ejectment laid down in sec. 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950.
(3.) I shall first take up the question whether the suit property falls within the purview of the term "land" as defined in the Rajasthan Tenancy Act (Act No. 3 of 1955) which will hereinafter be called the Tenancy Act ). Sec. 5 (24) of the Tenancy Act defines "land" as below: "sec. 5 (24) "land" shall mean land which is a let or held for agricultural purposes or for purposes subservient thereto or as grove land or for pasturage, including land occupied by houses or enclosures situated on a holding or land coveted with matter which may be used for the purpose of irrigation or growing singhare or other similar produce but excluding abadi land; it shall include benefits to arise out of land and things attached to the earth or permanently fastened to any thing attached to the earth. " In this connection learned counsel for the appellant has further invited my attention to the definition of the word "agriculture" contained in Sec. 5 (2) of the Act. "sec. 5 (2) "agriculture" shall include horticulture. " It has been argued on behalf of the appellant that as borne out from the lease deed Ex. 35 the land in question was leased out for agricultural purposes as the word 'kast' has been used therein. Reference has also been made to 'parcha Khatoni' with respect to the land in question Ex. A. 14 relating to Bandobast of the Sambat Year 1991 wherein it is mentioned that the land was being held "rent Free" On the other hand, learned counsel for the plaintiff-respondent has argued that the land in question has been recognised as the plaintiff's personal property not assessable to land revenue and that the 'patta' Ex. 34 goes to show that the land is in the town of Khetri and was in the shape of sand-dune when it was granted in Sumbat 1907, and, therefore, it cannot be said to have been used for agricultural purposes. It has been pressed upon me that merely because the defendants had unauthorisedly destroyed the garden and put the land under cultivation, the character of the land cannot be said to have changed from non-agricultural to agricultural. ;