GOYAL, J. - (1.) THESE two civil second appeals have been preferred by legal heirs of defendant No. 2 Ram Dev and defendant No. 1 Gopal Ram respectively against the judgment and decree dated 13. 10. 1999, whereby learned Additional District Judge, Khetri, district Jhunjhunu, affirmed the judgment and decree of eviction passed by Civil Judge, Jhunjhunu on 3. 8. 1992. Cross- objections have been filed by the plaintiff-respondent.
(2.) BRIEFLY narrated the facts are that the plaintiff Thakurji Shri Dwarkadheesji, through Manager Durga Prasad, filed a civil suit on 4. 6. 1960 in the court of Civil Judge, Jhunjhunu, against two defendants Gopal Ram and Ram Dev with the averments that the land measuring 16 Bighas 12 Biswas, bearing various Khasra Numbers, as mentioned in para 1 of the plaint, was given to one Dwarka Prasad an ancestor of Durga Prasad by the then Ruler of Khetri vide Patta (Ex. 34) on Mangsar Budhi 4 Samwat 1907 (Year 1850 ). Dwarka Prasad constructed houses, pond, two wells, temple, garden, the boundary wall and installed the idol of Shri Thakurji Dwarkadishji. This `kund' (pond) is known as `bohra ji Wala Kund' situated in abadi land of town Khetri. Subsequently, this property was donated to the idol of Thakurji by Dwarka Prasad, who himself continued to serve as `sevak' and Manager of Thakurji. The plaintiff's case is that Durga Prasad's father Sheolal died on 18. 1. 1935 and from that date the estate of Sheolal was brought under the management of the Court of Wards and continued till 2. 5. 1955. It is pleaded that during the period the estate remained under the management of the Court of Wards, the land and garden were managed through paid servants who gradually destroyed the garden and started cultivation of crop in the land under the garden for which they were not entitled. The plaintiff further pleaded that after the estate was released from the management of the Court of Wards, Durga Prasad leased out the land alongwith houses in question to the defendants for a period of one year from 2. 5. 1955, for a consideration of Rs. 115/-, for vegetables, fruits and flowers. The original agreement of lease was placed on record which is Ex. 35. The grievance of the plaintiff is that the defendants gradually converted the land of the garden into agricultural land without any right to do so. Now the plaintiff wants to put up a garden on the entire land and the kacha and pacca houses in the land are required by the plaintiff for the temple and garden. Vide notice dated 11. 4. 1960, the plaintiff asked the defendants to vacate the land as well as the houses. The plaintiff prayed for a decree for possession of the houses as well as the land under the garden and for mense profits at the rate of Rs. 2/- per day. Both the defendants filed separate written statements with identical pleas. They pleaded that the suit was in respect of the agricultural land and thus the civil court had no jurisdiction and it is filed beyond limitation and the lease deed being unregistered is inadmissible in evidence and the notice of ejectment was not legal and valid. On the basis of the pleadings, issues were framed. The Trial Court decided Issue No. 4 with regard to jurisdiction against the plaintiff and returned the plaint. It was held by learned Civil Judge that the land in question was agricultural land and therefore, the suit was triable by Sub Divisional Officer, Khetri. On appeal against this order, the District Judge, Jhunjhunu, vide judgment dated 18. 2. 1963, set-aside the order of the Civil Judge and directed first to decide the question whether the land in dispute fell within the `abadi land' of Khetri Town.
(3.) AFTER remand, the Trial Court recorded the evidence of the parties and vide its judgment dated 30. 9. 1966 decree the plaintiff's suit for ejectment 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 the possession of the property to the plaintiff. Aggrieved by the judgment and decree of the Trial Court the defendants filed two separate appeals which were dismissed by the learned District Judge, Jhunjhunu on 25. 7. 1967 on the preliminary ground that the appeals are not maintainable. The defendants thereupon filed civil second appeal before this Court, which was registered as S. B. Civil Second Appeal No. 316/67 and the same was allowed vide order dated 18. 7. 1969 and the case was remanded to the first appellate court for disposal on merits. Thereafter, the learned District Judge upheld the judgment and decree of the Trial Court and dismissed the appeals vide judgment dated 1. 6. 1972. The defendants again approached this Court by filing two separate appeals. In these appeals, only two points had been urged by the learned counsel for the appellants. At the first instance, it was argued that the subject matter of the suit is agricultural land and, therefore, the suit is not triable by civil court. The second point was 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 grounds of eviction as provided under Section 13 of the Rajasthan Premises (control of Rent and Eviction) Act 1950 (for short the Act 1950' ). This Court while dealing with the first point, held that the land granted by the `patta' Ex. 34 was being held for building purposes. There is nothing in `patta' Ex. 34 to show that the land which was at that time in the shape of sand-dune was to be used only for agricultural purposes and not for building purposes at all. It was also held that the temple and land apertinent thereto is in the populated area of the Town of Khetri and must be deemed to be a part of the populated area. Merely because a portion of the land in the compound of the temple is being used as a garden or for the matter of that for cultivation would not change the character of the land being `abadi land'. Therefore, it was held that the case is governed by the Act of 1950. It was next held that since such appoint was not raised by the defendants during the trial, neither issue was framed on it nor the plaintiff had occasion to lead evidence in this regard. In the result this Court vide judgment dated 14. 12. 1973 (Gopal vs. Durga Prasad & Ors. (1),) partly allowed the appeals, set- aside the judgments and decrees of the courts below and remanded the case back to the Trial Court with a direction to give an opportunity to the plaintiff to amend the plaint, regarding the grounds for eviction and then to proceed according to law. ;