- (1.) THIS is a second appeal by the defendant against whom the respondents suit for ejectment has been decreed by the first appellate court after reversing the decree of the trial court.
(2.) WE have heard the learned counsel appearing for the parties and have examined the record as well. The suit was instituted on 6-10-47 in the court of the Revenue Officer, Sojat, of the former Jodhpur State, with the allegations that the defendants had not paid rents for Svt. year 2001 to 2003,that they had taken away the harvest without carrying out the latai of the produce and that they have spoiled the land by digging pits and preparing bricks. The trial court framed six issues on 9-2-50 on the point of the amount of rent payable by the defendants to the plaintiff and matters allied thereto. Subsequently on the application of the plaintiffs a fresh issue was added on 11-2-52 on the point as to whether the defendants had rendered agriculture in the land impossible by digging pits in it ? The trial court after discussing the evidence of the parties held that the pits dug in the land were for preparing bricks for carrying out repairs to the well and that it was an improvement with in the meaning of law and not an act detrimental or inconsistent with the purpose for which the land was let. It,however, held that a sum of Rs. 441/12/- was outstanding against the defendants as arrears of rent. A decree for this amount was accordingly granted in favour of the plaintiff against the defendants, and the plaintiffs' prayer for ejectment was rejected. The defendants went up in appeal before the Additional Commissioner,jodhpur. The plaintiff filed a cross-objection praying for the ejectment of the defendants. The learned Additional Commissioner held that preparing of bricks amounted to a defendant act and hence directed ejectment of the defendants. The defendants' appeal was rejected. Hence this second appeal by the defendants wherein the only contention raised is as regards the decree of the lower appellate court regarding ejectment, The propriety of the trial courts' decree relating to arrears of rent awarded to the plaintiffs has not at all been challenged before us. We have bestowed our careful consideration on the point involved for determination in the case. The lower court has relied upon a decision of the Allahabad High Court reported in Volume 28, Indian Decision, page 298, Deena vs. Harkishen Dass. The facts of this case are entirely different from those of the present one. In that case the plaintiff respondent had granted a perpetual lease to the appellant in respect of 14 plots of land covering an area of 12. 54 acres. The appellant sublet two of these plots measuring 1. 58 acres to defendants No. 2 and 3 for the express purpose of making bricks and setting up bricks-kilns. The defendants Nos. 1, 2 and 3converted these plots into bricks-kilns & on the basis of these facts it was held that this amounted to an act detrimental to the land and was inconsistent with the purpose for which it was let. In the present case no sub-lease was granted by the appellants. On the other hand, it appears from the evidence led by the plaintiff himself that the well existing in the land in dispute stands in need of repairs which could be carried out by bricks. It is also in the evidence led by the plaintiff himself that a plot of land measuring about 10 or 12 paces in length,5 or 6 paces in breadth with depth upto human waist was dug out for preparing bricks There is nothing on record to show that the intentions of the defendants in the preparation of these bricks were commercial or unconnected with the carrying out of repairs to the well. The defendant has in his statement clearly pointed out that the well needed repairs and the bricks prepared from the land were for that very purpose, which because of the litigation have not been carried out as yet. It is also in the plaintiff's evidence that the spot used for the manufacture of bricks is just clause to that well. The term 'improvement' has been defined in the Jodhpur Tenancy Act, 1949, in sec. 3 (2) (vi) as including the renewal or reconstruction of any of the wells, waters Channels, embankments and other works for the supply or distribution of water for agricultural purposes. A khatedar tenant has been authorised in sec. 36 of the Act to make any improvement in his holding except that he may not make an improvement mentioned in sub-sec-clause (iv)or sub-clause (v)of clause (b)to sub-sec. (12)of sec. 3. The work which forms the subject matter in dispute does not come within these exceptions. We are, therefore,of the opinion that the learned Additional Commissioner was wrong in holding that the appellant had committed an act detrimental to the land or inconsistent with the purpose for which the land was let out. We would, therefore, allow this appeal, set aside the order of the lower appellate court and restore that of the trial court.;