GOPAL Vs. DURGA PARSAD

JUDGEMENT

(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.

(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. "