C.M. 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 Dwarkadheeshji 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, Jnunjh nu all hging 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 Bighas 2 Biswas bearing Khasra Nos. 1399, 1404, 1406, 1417, 1421, 2081/1403 and 2082/1402. The land in the pond, well, garden and the temple, are constructed was granted to one Dwarka Prasad an ancestor of Durga Prasad by the which Raja of Khetri on Migsar Bad 4, Section 1907. The original 'patta' had been placed on the record and marked Ex 34 The plaintiff's ease is that Durga Prasad's father Sheolal died on 18-1-1935 from which date the estate of Sheolal was brought under the management of the Court of wards and continued to be under the Court of wards till 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 defendant 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 in para No.6 of the plaint as well as the land under the garden and for mesne profits at the rate of Rs. 2/- per 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. Defendants Nos 1 and 2 filed separate written statements, though the pleas taken by them are 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 exparte.
4 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?
5. 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 tor 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 18-7-1969, and the case was remanded to the first appellate court for desposal 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.
6. 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 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 Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950.
7. I shall first take up the question whether the suit property falls within the perview of the term 'land' as defined in the Rajasthan Tenancy Act (Act No. 3 of 1955) (which will hereinafter be called the Tenancy Act). Section 5(24) of the Tenancy Act defines 'land' as below:
Section 5(24): 'land' shall mean land which is let or held for agricultural purposes or for purposes subservient there to or as grove land or for pasturage, including land occupted by houses or enclosures situated on a holding, or land covered with water which may be used for the purpose of irrigation or growing singhara 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 Section 5(2) of the Act.
Sections 5(2) 'agriculture' shall include horticulture;
8. 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 'Paracha khatuni' with respect to the land in question Ex,A 14 relating to Bandobast of the Year 1998 wherein it is mentioned that the land was being held 'Rent Free'.
9. 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 'patra' Ex.34 goes to show that the land is in the town of Khetri and was in the shape of sand dume when it was granted in Sambat 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.
10. On a careful consideration of the arguments advanced by the learned Counsel, and on a perusal of the evidence produced by the parties, both oral and documentary, I find that that the land has been used for agricultural purposes for a considerable time. The language of the grant Ex 34 is not very decisive but the lease deed Ex 35 does authorise the defendants to carry out agricultural operations 'kast' on the land. The preparation of 'Khata-unis' Ex A. 14 and Khasra Gurdawaries Ex A 12 also point to the fact that the land was let or held for agricultural purposes on for purposes subservient thereto. Regarding the houses, they are undoubtedly attached to the temple and were being occupied by the defendants while working on the land. However, it appears to me that the mere fact that the land was being put to agricultural purposes is not sufficient in the present case to hold that it is 'land' as defined in the Tenancy Act. The definition of 'land' as contained in this Act clearly excludes 'Abadi 'land'. In the very opening sentence of para No. l of the plaint it is mentioned that the land in question is situated in the 'Abadi land' of 'Kasba' Khetri. Defendant No. 1 Gopal has not specifically denied this fact and has generally said that the contents of para No. 1of the plaint are not admitted Defendant No.2 Ramdeo has of course pleaded in reply to para No. l of the plaint that the land is agricultural land and, further in fresh pleas he has raised an objection that the suit is triable by revenue court, and that the defendants are Khatedar Tenants. It is, therefore, necessary to determine in the present case whether the land in question is 'Abadi land'? 'Abadi land' has been defined in Section 103 (b) of the Rajasthan Land Revenue Act (Act No.15 of 1956), (which will hereinafter be called the Land Revenue Act) as follows:
103(b): 'abadi' and 'abadi area' or abadi land' means the populated area of a village, town or city and includes the site of such village, town or city, land reserved and set apart under Section 92 for the development of abadi therein and land held therein for building purposes whether a building has been constructed thereon or not.
11. Now according to the boundaries given in the plaint and admitted by the defendants, there is a locality of 'Chelapuris' on the northern side. There are gardens of Ram Rai and Maji Saheb on the south. On the west is open land, sand-dume and hills and there is a stable of the Thikana and habitation on the west, Thus there are populated areas of the. Town of Khetri on the east and west of the land in question whereas on the east there are sand dume and hill on which no residential houses can be built. On the south also there are gardens and consequently there cannot be houses on south either. Thus it would not be unreasonable to hold that the temple and the land appertinent thereto which incudes the land in dispute 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'. It is further clear from the 'patta' Ex.34 that the grantor had not fixed any land revenue or rent for the land in question and the grantee had been permitted to construct a well, pond, garden and houses. In this view of the matter, there is no difficulty in further coming to the conclusion 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 a sand-dume was to be used only for agricultural purposes and not for building purposes at all.
12. Coming to the oral evidence P.W. 4 Durga Parsad (plaintiff) has stated that the temple Dwarkadheeshji Maharaj is situated in the Town of Khetri and that the land in question was granted for the purpose of putting up a garden and constructing a pond, a temple and houses. He has further stated that this land was not granted by the grantor for agricultural purposes. It has been brought out in the course of his cross-examination that the garden is in 'abadi' and is not agricultural land, and that it is not a fact that wheat and Bajra are being sown in it since hundred years. P.W. 5 Dulichand further supports the plaintiff and states that the land is in 'abadi' and is not agricultural land and that fruits like pome-granates, lemons, orranges etc. are grown in it. Another witness on the point is P.W. 7 Hanuman Prasad son of Ramkumar who too has corroborated the plaintiff and has stated that the land in question is in the 'abadi' of the Town of Khetri even though there are some fields on the southern, northern and western sides of this garden. He has further stated that there are fruit trees in the garden. D.W. 3 Gopal (defendant) has also admitted towards the end of his cross-examination that the land in question is in 'abadi'.
13. In addition to the aforesaid evidence we have it from the evidence of P.W.2 Jagannath Prasad the then Chairman of Municipal Council, Khetri that the land in question is within the municipal limits of the Town of Khetri and Municipal number assigned to the land is No.39 P.W. 3 Laxmi Kant, Secretary of the Municipal Council deposes to the same effect From the evidence of these witnesses it is further clear that there is a pucca compound wall around the land in question and that at the gate of the compound the Municipal number is mentioned. There is no rebuttal of this evidence worth the name from the defendants' side that the land in question is not in 'abadi', 'abadi area' or 'abadi land'. On the other hand as already mentioned D.W 3 Gopal defendant has admitted in his unguarded moment that the land in question is in 'abadi' Learned Counsel for the appellants submitted that merely because the land is situated within the municipal limits of the town or that it is situated within the 'abadi' area is not sufficient and that it is quite possible that there may be agricultural land even in the heart of the town However, in the facts and circumstances of the present case, I have come to the conclusion that the inference drawn by the learned District Judge on the basis of the oral and documentary evidence referred to above cannot be said to be wrong. I find my self in agreement with him, & hold that the land in question is 'abadi land' and does not fall within the definition of the term 'land' as contained in Section 5(24) of the Tenancy Act. In this view of the matter. I do notec any force in the appellant's contention that the suit is exclusively triable by Revenue Court and over-rule it.
14. As regards the second point, learned Counsel for the appellant himself candidly conceded that this point was not taken in any of the courts below. However, his contention is that if it is a case of eviction by a tenant, as it is according to him, no decree can be passed in favour of the land-lord, unless one of the conditions laid down in Section 13(1)(a) to (k) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 is satisfied. This argument is not without force. The reply of the learned Counsel for the respondent is two-fold He has urged in the first instance that the suit is not for eviction of a tenant but is one based on licence or alternatively one for possession based on title. In the second place it is contended that the grounds for ejectment are contained in the plaint.
15. It may be pointed out that even according to the allegation contained in the plaint the possession of the land had been transferred to the defendant and the terms contained in the agreement Ex.35 do make out a case of lease and not a case of licence. The cardinal distinction between a lease and a licence is that in a lease there is a transfer of interest in the land whereas in the case of a licence there is no transfer of interest, although the licensee acquires a right to occupy the land. The effect of the instrument Ex 35 is to give the holder the right to possess the land and to cultivate it, and thus it is a demise of the land itself. Having regard to the substance of the agreement and the intention of the parties I am led to the conclusion that it is a case of lease and not a licence. I am further fortified in my view by the name given to the instrument in as much as it is described as a 'Kabuliyat'. The rent has been settled as Rs. 115/- in cash for one year, besides a few vegetables and flowers in kind. The plaintiff has also given a notice of ejectment as mentioned in para 9 of the plaint. The trial court has also held in its judgment dated 30.9.1966 that it is a case of tenancy at will and this finding war, not called in question before the District Judge who has expressed his concurrence in the finding of the learned trial court on this point while deciding question No.2 pertaining to the validity of the notice of ejectment. 1, therefore hold that the case is governed by the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. But since the point was not raised by the defendants, no issue was framed on it nor the plaintiff had occasion to lead evidence with respect it. However, I do mind that the plaintiff has made allegations in paras Nos. 7 and 8 of the plaint giving an indication that he relies on some of the clauses of Section 13(11)(a) to (k) For instance it is mentioned in para No. 7 that the defendants have unauthorisedly put the land of the garden under cultivation. Learned Counsel for the plaintiff submits that this amounts to the tenant doing an act inconsistent with 'he purpose for which he was admitted to the tenancy, and this falls under Clause (d) Again para 8 gives an indication that the premises are required by the plaintiff for his own use. It is, however, for the plaintiff to proceed with this matter on the allegations as they are or to suitably amend the plaint in this respect. In the circumstances, therefore, it is undoubtedly necessary to have a finding on the question whether the plaintiff is entitled to evict the defendants on any of the grounds mentioned in Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, Since the point has been taken up to the first time here it would be proper to give an opportunity to the plaintiff to amend the plaint, if he so desires, in this connection and then to lead evidence on it.
16. In the result, I partly allow this appeal; set aside the decrees of the courts below and send the case back to the trial court with a direction to give an opportunity to the plaintiff to amend the plaint, if he so desires, regarding the ground or grounds for eviction and then to proceed according to law. However, in any case even if the plaintiff does not want to amend the plaint, an issue may be framed as to the grounds for eviction pleaded in the plaint as it is and then to determine the question regarding eviction after allowing the parties an opportunity to lead evidence thereon and decide the suit afresh in light of the newly framed issue.
17. Since the second point has been raised for the first time at this late stage of litigation, I am inclined to make a departure from the usual practice in the matter of costs and direct that one set of costs of the plaintiff of all the three courts shall be borne by the defendant-appellants. Costs hereafter will abide the result.