Rajasthan High Court - Jodhpur
Kamlesh vs Liquidator,Bhopal Co Operative ... on 18 September, 2012
Author: Vineet Kothari
Bench: Vineet Kothari
S.B. CIVIL SECOND APPEAL No.78/1983
Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012
1/38
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
JUDGMENT
Kamlesh S/o Mohan Lal
Vs.
Liquidator, Bhopal Cooperative Society Ltd.& Ors.
S.B. Civil Second Appeal No.78/1983
Date of Judgment ::: 18th September, 2012
PRESENT
HON'BLE DR. JUSTICE VINEET KOTHARI
REPORTABLE
Mr. J.L. Purohit, Sr. Advocate with
Mr. Rajeev Purohit,, for the appellant-defendant-tenant.
Mr. Rajat Dave, for the respondents-plaintiffs.
BY THE COURT (ORAL):
--
1. This second appeal of the appellant-defendant, Mohan Lal S/o Amarchandji Sindhi, who is now represented by his legal representative, Kamlesh S/o Mohan Lal, was filed in this Court under Section 100 of the Code of Civil Procedure, 1908, way-back on 24.02.1983 and is one of the oldest second appeal pending in this Court, which has the second round of its decision after remand by the Hon'ble Supreme Court while deciding the Civil Appeal No.2277/2011 {SLP (C) No.10096/2006}- Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & others, on 02.03.2011 setting aside the previous decision of this second appeal by the learned S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 2/38 Single Judge of this Court on 06.01.2006 dismissing the present second appeal of the defendant-appellant. While dismissing the second appeal of the defendant-appellant on the sole and following substantial question of law, which was framed at the time of admission of the present second appeal on 06.07.1983, which reads as infra: -
"Whether the suit was triable by the civil court?"
2. While dismissing the present second appeal, the learned Single Judge of this Court on 06.01.2006 held that the civil court had the jurisdiction to decide the suit for ejectment filed by the respondent-plaintiff, Liquidator, Bhopal Cooperative Society Ltd. (for short, hereinafter referred to as 'BCSL') and the objection raised by the original defendant, Mohan Lal that only revenue court had jurisdiction to try the present suit since the land in question was agricultural land in view of bar of jurisdiction contained in Section 207 of the Rajasthan Tenancy Act, 1955 was negatived in the following terms:
"I considered the submissions of the learned counsel for the parties. It appears that the defendant took the plea because the land has been shown as agricultural land in lease deed Ex.1. In the lease deed Ex.1, word "Industry"
used for poultry-farm, sheep-breeding center and dairy- farm but it is clear from the lease deed itself that the lessee was permitted to grow crops like, Jawar, barly, methi, corn, mutter, gram and lahasun etc. but only to feed cattle and birds of his dairy, poultry birds and sheep with specific restriction against use of land for agricultural business.
S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 3/38 Even if it is ignored that for what purpose the land was given to the plaintiff by the State Government, and even if it is accepted that the land in question is agricultural land even then merely on the basis of this permission to grow crop, the nature of tenancy cannot be considered to mean for agricultural purpose. For deciding nature of tenancy, what is relevant is the nature of tenancy and not the nature of the land. Even if an agricultural land is let out for any non-agricultural purpose and it is not permissible in the law governing agricultural tenancy, then consequence may follow and action may be taken against the lessor katedar tenant of the agricultural land as provided under the relevant Act but it will not change the nature of the tenancy. Therefore, crucial issue was whether the premises was let out for agriculture purpose or it was let out for any other purpose. Second question would be, if it was out for any purpose other than agriculture purpose then whether it was let out for industrial purpose because there is a reference of "industry" in the lease-deed Ex.1.
Because of the use of the words "agricultural" and "industry" in the lease-deed and because of permission to grow certain crops in terms of the lease-deed, it is sought to be advanced that the lease is for agriculture purpose. To examine this aspect of the matter, it will be necessary to find out the real intention of the parties in letting out the land in question to the defendant. The intention has been made clear in the lease-deed itself, which says as under: -
"The lessor hereby demises to the lessee for the purpose of starting poultry, sheep breeding and dairy Farms on the plot of 30 bighas of agricultural land..."
Therefore, the land was let out for establishing poultry-farm, sheep breeding center and dairy farm, though S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 4/38 over an agricultural land. The condition no. (viii) of the lease-deed is as under:-
"That the lessee will grow only fodder crops i.e. Jawar, barly, methi, corn, mutter, gram and lahasun as are required for the bonafide use of the cattle and will not grow such crops as to make any agricultural profit out of them."
A bare reading of this condition no. (viii) makes it clear that by this lease, the defendant was restrained from growing any crop so as to make profit from agriculture produce. He was bound down to grow only the crops which are required for the bonafide use of the cattle only. Therefore, the purpose is unambiguously clear from the condition of the lease-deed itself that permission to grow limited crops was ancillary to main purpose of establishing poultry, sheep breeding and dairy farming. Agricultural business was specifically prohibited by the condition in the lease-deed itself. Therefore, this lease was not for agricultural purpose. When the terms and conditions in a deed are unambiguous and clear, even the parties cannot supplement the facts and reasons to give a different intention than which comes out from the lease-deed itself.
It appears that in the lease-deed a condition was also put that the defendant shall develop the industry within one year from taking possession of the land. The word "industry" has been used not with intention to make the lease for industrial purpose. The intention of the plaintiff to let out the property has been made clear in para no.2 of the plaint where the plaintiff stated that to give some facilities to the members of the town to be established by the plaintiff- society, it was decided to run a poultry farm, sheep-breeding center and dairy-farm. The defendant in his written S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 5/38 statement particularly in para 5 of the additional pleas unequivocally admitted that the defendant took the land for establishing poultry farm, sheep-breeding center and dairy- farm and in the last line of para 5 of the written statement stated that it is not possible to run the poultry-farm, sheep- breeding center and dairy-farm because of the obvious reason that half of the land was acquired by the State Government. Therefore, the defendant understood well that the intention to let out the property was not for the agricultural purpose nor for the industrial purpose but it was for the benefit of the members of the township of the plaintiff-society. The expression 'manufacturing purpose' was examined by the Hon'ble Apex Court in the case of Allenbury Engineers (Pvt.) Ltd. vs. Shri Ram Krishna Dabina (AIR 1973 SC 425), wherein Hon'ble the Apex court held that:-
"The expression 'manufacturing purpose' in the section means the purpose of making or of fabricating articles or materials by physical labour or skill or by mechanical power vendible or usable as such. There must be a transformation into a different article or material having a distinctive name, character or use, or even fabricating a previously known article by a novel process. Where the manufacture of spare parts was incidental to the main purpose of disposal of vehicles in order to repair or re-condition then, the dominant purpose of the lease would still have to be regarded as storage and re-sale and not as a manufacturing purpose."
Therefore, the dominant purpose in the present lease appears to be establishing a poultry-farm, sheep-breeding center and dairy-farm for the benefit of the members of the locality of the plaintiff-society, may it be by using agricultural land or Abadi land, as the nature of the land in S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 6/38 the present facts and circumstances of the case is irrelevant. At this stage it will be worthwhile to mention here that the plaintiff pleaded that the State Government gave the land to the plaintiff which is uncultivable, for setting the refugees by working out development of the colony and the two courts below held that the land is not agricultural land. For arriving at finding of fact, the courts below relied upon the statement of the plaintiff and considered the fact that the defendant did not produce any evidence to prove that land is agricultural land. I need not to go into this aspect of the matter whether the land is agricultural land or not but it is clear from the evidence available and from the lease-deed Ex.1 itself that the lease was granted for non-agricultural purpose and non-industrial purpose.
In view of above, the civil court had jurisdiction to hear the suit."
3. The matter was taken to Supreme Court by the defendant, Kamlesh (legal representative of original defendant, Mohan Lal) by filing SLP No.10096/2006, which was later one registered as Civil Appeal No.2277/2011- Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors. and came to be disposed of by Apex Court remanding the case back to this Court with the following directions: -
"A bare reading of the judgment of the High Court makes it clear that neither the definition of the word "agriculture" as given in Section 5 (2) of the Rajasthan Tenancy Act, 1955 nor the definition of the word "land" as given under Section 5 (24) of the said Act could be considered by the High Court before recording a finding S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 7/38 that the land was an agricultural land. The learned counsel for the respondents has contended that cattle breeding, dairy farming, poultry farming and forestry development were considered to be activities relating to agriculture with effect from June 22, 1978, in view of the amendment made in sub- section 2 of Section 5 of the Act and therefore, the High Court was justified in passing the decree of eviction whereas the learned counsel for the appellant contends that even if the said amendment, is ignored for the time being, cattle breeding, dairy farming, poultry farming and forestry development were always considered as a part of agricultural activities by this Court. In support of this plea, the learned counsel for the appellant has placed reliance on the decision of this Court in Maheshwary Fish Farm Seed Farm Vs. T.N. Electricity Board and Another (2004) 4 SCC 705.
It may be mentioned that after receipt of notice in the present matter, the respondent No.1 has filed counter affidavit in June 2007 along with the said affidavit, a copy of the order of the Government of Mewar, Revenue Department dated December 18, 1947 is produced as Annexure R-1 for perusal of the Court. In the reply, it is mentioned that 625 bighas and 2 biswas of land, allotted to the society comprised agricultural, non agricultural land and banjar lands and at the time of allotment of the land, the same was ordered to be taken in Halka Abadi by the sovereign Ruler who had exclusive power to change the user of the land. What is stated in the reply is that since 1947 the user of the land was changed and whole of the land was made abadi land. On consideration of the said document, this Court is of the opinion that in fact, this document should have been produced before the High Court for its consideration.
S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 8/38 However, it is clear that by producing the said document what is contended by the respondent is that the land in question was not an agricultural land and was forming a part of the abadi land and therefore, Civil court had jurisdiction to entertain the suit filed by the respondent No.1. One of the arguments advanced by the learned counsel for the appellant was that the deceased lessee was entitled to grow crops like Jawar, Barley, Methi, Guar, Muttar, Gram for the use of cattle and activities such as cattle breeding etc. will part of agricultural operations for which lease was executed.
The above discussion makes it very clear that several questions could not be effectively considered by the High Court before deciding the question whether the land was let out for agricultural purpose or the land was let out for any other purpose.
Under the circumstances, the learned counsel for the appellant prays that the matter be remitted to the High Court for fresh consideration on merits. The learned counsel for the respondent has left the matter to the Court for passing appropriate orders.
On the facts and in the circumstances of the case, this Court is of the view that interest of justice would be served if the matter is remitted to the High Court for fresh consideration on merits and the High Court is requested to dispose of the appeal expeditiously.
For the foregoing reasons, the judgment dated January 6, 2006 rendered by the learned Single Judge of the High Court of Rajasthan at Jodhour in SB Civil No.78 of 1983 is hereby set aside. The matter is remitted to the High Court for reconsidering the same afresh and on merits. It is clarified that it will be open to the parties to file additional S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 9/38 documents before the High Court in support of their respective claims. The documents that may be produced shall be treated as permitted to be produced under Order 41 read with Section 27 CPC by this Court. This judgment shall not be construed as having expressed any opinion on the merits of the case. As the matter is very old, the High Court is requested to dispose of the Second Appeal as early as possible and without any avoidable delay.
Subject to the above mentioned directions and clarifications, the appeal stands disposed of."
4. After remand by the Hon'ble Supreme Court, additional documents were filed along-with application under Order 41 Rule 27 CPC by the appellant-defendant vide application (IA No.10279/11) filed on 06.07.2011. The defendant has filed two additional documents, namely, copy of original lease-deed dated 29.05.1951 and copy of minutes/resolution of the plaintiff-BCSL dated 13.07.1954.
5. Similarly, the respondent-plaintiff-BCSL also filed another application (IA No.1221/12) under Order 41 Rule 27 CPC in this Court on 30.08.2012 through its counsel Mr. Rajat Dave, along- with the said application three documents, namely, order of Government of Mewar/Revenue Department dated 18.12.1947, copy of Jamabandi and copy of Patta dated 04.12.1956 for 378 Bigha & 15 Biswa of land, issued by the State Government in favour of plaintiff society-BCSL.
6. In terms of Hon'ble Supreme Court order, both these applications viz. (IA No.10279/11 an IA No.1221/12) under Order 41 S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 10/38 Rule 27 CPC stand allowed and the additional evidence adduced by both the parties, was considered by this Court.
7. Mr. J.L. Purohit, Sr. Advocate assisted by Mr. Rajeev Purohit, learned counsel for the appellant-defendant, Kamlesh S/o Mohan Lal, essentially reiterated the submissions made earlier before this Court in a little more expanded form and relying upon number of decisions of the Hon'ble Supreme Court and this Court, emphasized once again that the Civil courts in the present case had no jurisdiction to try the present suit for ejectment as the perpetual lease granted in favour of original defendant, Mohan Lal, father of the present appellant-defendant, Kamlesh, on 25.05.1951 could not have been terminated by the plaintiff- Society, which has now gone in liquidation and is represented by its liquidator and the provisions of the Transfer of Property Act, 1882, do not apply to the present case. Therefore, the learned trial court as well as first appellate court had erred in decreeing the suit for ejectment and consequently the substantial question of law, framed above, deserves to be answered in favour of defendant-appellant and such suit could only be entertained or tried by the revenue Courts viz. Assistant Collector in view of bar of jurisdiction enacted in Section 207 of the Rajasthan Tenancy Act, 1955 read with Entry 23 of the Third Schedule to the Act.
8. Before adverting to the aforesaid contentions of the learned counsel for the appellant-defendant and rival contentions raised by the opposite counsel, Mr. Rajat Dave, learned counsel S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 11/38 appearing on behalf of plaintiff-BCSL, it is essential to give in brief the factual matrix leading to the present litigation banking upon the lease-deed dated 25.05.1951, about 61 years back from today.
9. The respondent-plaintiff, Bhopal Cooperative Society Ltd. was constituted to establish a township in Udaipur, within the State of Rajasthan, mainly to re-settle and rehabilitate the refugees coming from Pakistan upon partition of the country in the year 1947. In order to settle such refugees, the said Society was allotted about 625 Bighas land in the outskirt of Udaipur in villages, known as Sundarwas, Madri, Barda and Bedwas so that a colony of houses known as Pratapnagar may be developed to resettle the refugees. A copy of the Patta No.11/1956 was issued by the Rajasthan Government produced by the plaintiff-BCSL with its application under Order 41 Rule 27 CPC shows that later on in the year 1956, much after the creation of the present society and the lease-deed executed in favour of original defendant, Mohan Lal on 25.05.1951. The Patta No.11/56 was issued in favour of plaintiff-BCSL for 378 Bighas and 15 Biswa of land (described as 378 III of land) in favour of said society by the State Government. The said document also makes a stipulation that the said "Patta" was issued to Bhopal Cooperative Society Ltd., Pratap Nagar, Udaipur, in respect of land situated in Pratap Nagar, Tehsil- Girva for "Halka Abadi", Pratap Nagar, which was given by erstwhile Mewar Government under "Hukum" (Order number) No.3475 dated 06.01.1948 in villages, namely, S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 12/38 Sundarwas, Madri, Barda and Bedwas, the total land was acquired by the State Government and after including the same in "Halka-Abadi", the said "Patta" for 378 Bigha 15 Biswa land was being given to the plaintiff- Bhopal Cooperative Society Ltd., the details of said various Khasra numbers and land given under said "Patta" No. 11/1956 are mentioned in the said document. The revenue records were also modified and accordingly the name of plaintiff-BCSL was entered in the revenue records as would appear from such "Nakal Jamabandi" ("Khatoni") of village Parda, produced with said application under Order 41 Rule 27 CPC by the plaintiff- BCSL. After allotment of the land by the State Government to the plaintiff-BCSL, the date of which is not on record, a lease-deed dated 25.05.1951 Ex.1 was executed by the plaintiff-BCSL in favour of defendant- Mohan Lal, initially for 30 Bighas of land, out of which half of the said land, viz. 15 Bighas of land was acquired back by the State Government for the purpose of developing the said housing colony in Pratap Nagar, Udaipur and remaining 15 Bigha, which was given to the defendant, Mohan Lal under the perpetual lease-deed (Ex.1) was left with the defendant, Mohan Lal for the purpose for which it was given, namely, "for the purpose of supporting poultry, sheep breeding and dairy farm", described in the Schedule attached with the said perpetual lease-deed of the land. Out of 30 Bigha, 15 Bigha of land was acquired by the State Government. The Clauses [vi], [vii] and [viii] of the said lease-deed reads as under:-
"vi. That he will not assign or underlet or otherwise S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 13/38 partwith the land hereby demised or any construction erected thereon or any part thereof without the permission in writing of the lessor.
vii. That he will develop the Industry within one year from taking possession of the land. Development means i.e. for Dairy Farm the lessee shall by the end of one year keep at least as many milch cows, for poultry as many hens and for sheep breeding as many sheep as the concerning Rajasthan Government departments may opine hereafter. Their opinion will be binding upon the lessee.
viii. That the lessee will grow only fodder crops i.e. Jawar, barley, methi, Goar, muttur, gram and loosan as are required for the bonafide use of the cattle and will not grow such crops as to make any agricultural profit out of them."
10. A notice dated 17.03.1971 came to be served by one Akshaisingh Devpura, Advocate, Ravji-ki-Hatan, Udaipur upon the original defendant, Mohanlal A. Vaswani, at his address of Jaipur at B/1, Government Bungalow, Bhagatsingh Marg, C-Scheme, Jaipur, terminating the aforesaid lease Ex.1 dated 25.05.1991, inter-alia, on the ground that the defendant has failed to pay the yearly rent on the fixed date of payment; and that the defendant has not started the dairy farm, sheep breeding farm and poultry farm; and that he has started agricultural operations for agricultural profits contrary to the terms of the lease-deed; and that he has also failed to start the dairy farm and sheep breeding, poultry within one year keeping sufficient cattle to meet the just demand of the inhabitants of the Pratap Nagar township (in breach of Clause-vii, reproduced above); and that he has also entered into a partnership with someone else, which is S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 14/38 against the terms and conditions of the lease-deed (Clause-vi of the lease-deed) and accordingly the said lease was terminated and the defendant was asked to deliver the vacant possession of the suit land of 15 Bighas to the plaintiff-BCSL, otherwise a suit for ejectment and for recovery of arrears of rent was liable to be filed claiming damages for use and occupation of the leased land and cost and consequences etc. Accordingly, the suit was filed in the Court of learned Munsif Magistrate, Udaipur on 01.12.1971 by the plaintiff- Society for recovery of possession, arrears of rent and mesne profit.
11. A written statement was also filed by the defendant in the learned trial court on 31.10.1972 and, inter-alia, in additional pleas, raised by the defendant, an objection was also raised on behalf of defendant that the suit is for agricultural land and for a lease of agricultural land, the present suit is barred by the provisions of Rajasthan Tenancy Act, 1955. The following nine issues were framed by the learned trial court on the basis of pleadings of the parties:
1. Whether on breach of any condition of lease agreement in between plaintiff and defendant referred in para No.4 of the plaint the plaintiff Society had right to determine the lease of the defendant without payment of any compensation and also acquired right to eject the defendant?
2. Whether defendant made breach of conditions of lease as alleged in para No.7 of the plaint?
3. Whether even after handing over of possession of half of land forming part of lease agreement in between plaintiff and defendant, by the defendant to the Government of S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 15/38 Rajasthan, the defendant continued to be governed by the aforesaid lease agreement conditions thereof, in respect of remaining portion of land in possession of the defendant?
4. Whether suit lease could not be determined and hence one month's notice determining the lease is illegal?
5. Whether this suit is maintainable without payment of court fees?
6. Whether this Court has no jurisdiction to try the suit for the reason alleged in para No.10 additional pleas of written statement.
7. Whether 6 months notice was required for determination of suit lease?
8. Whether defendant deposited advance rent Rs.80/- and also paid Rs.100/- as rent by cheque? If so, is the plaintiff not entitled to get rent claimed in the suit?
9. Is the plaintiff entitled to recover damages Rs.500/-.
12. All the issues were decieed in favour of plainitff- respondent-BCSL and the suit was ultimately decreed in favour of respondent-plaintiff- Society on 12.09.1977, inter-alia, holding that the land in question was 'Abadi' land and the provisions of Rajasthan Tenancy Act, 1955, are not applicable and the defendant failed to pay the rent of land in question and that there was a breach of terms and conditions of the lease and the defendant was directed to handover the possession of the suit land to the plaintiff- Society and also to pay arrears of rent Rs.39/- only.
13. The defendant's first appeal before the learned lower appellate court (Additional Civil Judge, Udaipur) viz. Civil Appeal No.97/1980- Mohan Lal Vs. Liquidator, Bhopal Cooperative Society S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 16/38 Ltd. also came to be dismissed by the first lower appellate court vide its judgment and decree dated 19.11.1982. The learned lower appellate court uphold the findings on Issue No.6 regarding jurisdiction of the Civil court and held against the defendant that burden of Issue No.6, which lied on the defendant, was not discharged as he failed to adduce any evidence to prove that the said land in question was agricultural land; as against which, the plaintiff's evidence, though oral, in the form of PW.1 Lada Ram, PW.2 Kalyan Mal, and PW.3 Goverdhan Lal was relied upon to the effect that the land in question was 'Abadi' land and was not agricultural land and it fell in Ward No.30 of the Municipal Council, Udaipur. The objection about six months', which required for determination of lease u/s 106 of the Transfer of Property Act was also overruled by the learned lower appellate court on the ground that the lease-deed Ex.1 do not contain any such stipulation and the same was determined rightly for the non-compliance of the conditions stipulated in the lease-deed.
14. Against the said appellate court decision dated 19.11.1982, the present second appeal was filed by the appellant- defendant in this Court, which was registered as CSA No.78/1983, which as aforesaid, was initially dismissed and upon being remanded by the Hon'ble Supreme Court, was reheard by this Court and is being disposed of this judgment and order.
15. As against the contentions of the learned counsel for the appellant-defendant, Mr. J.L. Purohit, Sr. Advocate, Mr. Rajat Dave, S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 17/38 learned counsel appearing on behalf of respondent-plaintiff, Bhopal Cooperative Society Ltd., urged that the entire land in question was allotted to the plaintiff-BCSL for developing a township for rehabilitation of the refugees from Pakistan, who came to India upon partition of the country in the year 1947; and to achieve the ancillary purpose providing facilities to habitations of the said township in Pratap Nagar, Udaipur, a portion of land, which included the agricultural land as well as 'Banjar' land, in the entire area of 628 Bighas, initially 30 Bigha and after acquiring back 15 Bigha back by the State Government, the remaining 15 Bigha of land was given on perpetual lease to the defendant, Mohan Lal for a particular object of setting up a poultry farm, sheep breeding farm and dairy farm. He submitted that the defendant not only failed to set up such sheep breeding, poultry farm and dairy farm, and he himself raised an additional plea before the learned trial court in his written statement that (in additional plea No.5) that since the State Government has acquired back 15 Bigha of land, and only 15 Bigha remained with him, he was unable to run the 'industry' in the form of poultry farm, sheep breeding and dairy farm. It would be worthwhile to quote the additional plea No.5 of the defendant made by him in the written statement.
"5. यह क पत व द न डर फ र, प र डर फ र एव श प-ब डडग (भड प लन) " इणडस& ज लग न ललऐ ह * ष, भ-लर ल ज पर ल लक न अब व द न ह उसर2 15 ब घ भ-लर र जय सर र सरणडर र द ज थ ड भ-लर रह S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012
18/38
उसर2 न6 ह च ज2 रखन असमभव ह: कय6क न6 ह च ज2
रखन ललए पत व द 30 ब घ भ-लर च हहए थ और 30
ब घ ह जर न दन य क य गय थ लक न व द र2 15
ब घ भ-लर व द न र जय सर र सरणडर र द इसललए
व द पत व द अब रजब-र नह र स क वह इ न
थ ड -स जर न र2 इ न स र इणडस& ज चल व य तन प र
फ र, श प-ब डडग व डर फ र चल व।"
16. He also submitted that limited agricultural operation allowed to the defendant under the lease-deed, the relevant clause [vii] reproduced above, was to permit him to grow only certain specific kinds of crops for feeding the animals and birds kept in such poultry farm or dairy farm to be developed by him for supporting the colony of the residents/refugees and, therefore, by undertaking agricultural operations on such land of 15 Bigha for earning agricultural profits, the defendant on the contrary violated the terms of the lease-deed and nonetheless it could not convert the agricultural land, which in fact was 'abadi' land into an agricultural land. Therefore, the jurisdiction of the Civil Court to entertain/try the present suit could not be questioned by the defendant-appellant.
Refuting the submissions of the learned counsel for the appellant based on minutes/resolution of the plaintiff-BCSL dated 13.07.1954, produced with the defendant's application under O. 41 R. 27 CPC, in which it was resolved that "no restrainment be put on the cultivation of the land to the parties to be attached to the party for milk dairy and poultry farm", Mr. Rajat Dave, learned counsel for the respondent-
plaintiff, Society further submitted that such lifting of restriction could S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 19/38 not alter the conditions of the lease-deed itself and even if such lifting of restriction, assuming to be true for argument's sake, it would not convert the character of the land into agricultural land so as to deprive the Civil court to its jurisdiction in view of the bar under Section 207 of the Rajasthan Tenancy Act, 1955, particularly in view of overriding fact that entire land of 628 Bigha was intended to be 'Abadi' land as would appear from one of "Patta" issued by the State Government in the year 1956, produced by the plaintiff with his application under Order 41 Rule 27 CPC CPC (IA No.1221/12).
17. He also drew the attention of the Court towards the judgment of learned Single Judge dated 17.11.1987, which was passed while dismissing the second appeal preferred by one Dalpat Raj being SBCSA No.143/1977- Dalpat Raj Vs. Liquidator, Bhopal Cooperative Society Ltd., Pratap Nagar, Udaipur, in almost similar circumstances as involved in the present case against the same plaintiff-BCSL, wherein it has been held that Civil court had jurisdiction to try the suit even though demised land under the lease-
deed was an agricultural land in the following terms.
"3. On 12.10.1977, the appeal was admitted on the following substantial questions of law, namely: -
"(1) Whether the suit related to the agricultural land and was not triable by a Civil Court?
(2) Whether a notice for a period of six months was required for determination of the lease in dispute, and the notice given in the present case was illegal?
S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 20/38
4. It has been contended by the learned counsel for the defendant-appellant that admittedly, the land in suit was let out for dairy and agricultural purposes and was so used at the time of the filing of the suit, as such the Civil Court has no jurisdiction to entertain and try the suit and it was exclusively triable by the Revenue Court. He contended that the agriculture nature of the demised land is clearly mentioned in the lease-deed Ex.1, no evidence has been produced to show that the agricultural land was converted into abadi land and the Patta Ex.4 is of no help, as it was executed long after the execution of the lease-deed Ex.1. There is no force in this contention. It is specifically stated in para No.1 of the plaint that agricultural and barren land situated in Pratapnagar area of Udaipur City was given to the plaintiff-society for establishing a township to rehabilitate the refugees coming from Pakistan. These averments have been admitted by the defendant in his written statement. It has further been stated in para No.2 of the plaint that the need of the dairy farm was felt in this township for its residents and the defendant came forward requesting the plaintiff to lease out some land to him from township. These averments have also been admitted by the defendant. It is thus the admitted case of the defendant himself that the demised land was situated in the abadi of Udaipur city. Section 5 (24), Rajasthan Tenancy Act, 1955 defines land, as follows: -
"(24). "land" shall mean which is let or held for agricultural purposes or for purpose subservient thereto or as grove land or for pasturage, including land occupied 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 S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 21/38 land; it shall include benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to earth."
5. "Abadi land" has not been defined in the Rajasthan Tenancy Act. It has been defined in Section 103
(b), Rajasthan Land Revenue Act, 1956, as follows: -
"abadi" or "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."
6. When the demised land is not a land as defined in Section 5 (24) of the Rajasthan Tenancy Act, there arises no question of the applicability of the provisions of this Act including Section 207 which excludes the jurisdiction of the Civil court.
7. In view of the clear admission of the defendant about the situation of the demised land in the said township, it was not necessary for the plaintiff to file the order of the Government converting the agricultural land into abadi land. It may be mentioned herein that the Patta Ex.4 granted by the State of Rajasthan to the plaintiff clearly mentions about the conversion. This 'patta' starts with the following sentence: -
"प पनगर हस ल गगरव र2 अनदर हर आब द प पनगर बढ न ललय रव ड गवनर2 न जररय हDकर नमबर 3475 हदन 6-1-48 रEज सDनदरव स व प रड व बडव स " D ल जर न 631 एकव यर र अनदर हर आब द र2 शDर र "।"
In view of these facts and circumstances, the learned lower courts have rightly held that the Civil Court had S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 22/38 jurisdiction to try the suit. The question No.1 is accordingly answered in negative.
Question No.2: -
8. It is stated in para No.4 of the plaint that one of the terms of the lease-deed executed by the defendant in favour of the plaintiff is that the defendant may cultivate Jowar, Barley, Maize and Gram in the demised land which may be necessary for the cattle. These averments have not been denied in the written statement. The defendant Dalpatraj P.W.1 admits in his statement dated 3.10.75 that the he grow grass for his cattle. In cross-examination, he disclosed that his Jowar and Maize were standing during those days. It has been the consistent case of the defendant that the demised land is an agricultural land and it has been so used since the beginning. Section 117, Transfer of Property Act runs as under: -
"117. None of the provisions of this Chapter apply to leases for agricultural purposes, except in so far as the State Government may, by notification published in the official Gazette, declare all or any of such provisions to be so applicable in the case of all or any of such leases, together with, or subject to, those of the local law, if any, for the time being in force.
Such notification shall not take effect until the expiry of six months from the date of its publication."
Admittedly, no notification has been issued by the State Government under it so far. As such the provisions of Chapter V of this Act including Section 106 requiring six months' notice is not applicable. In fact, no notice was required. This question is also answered in negative.
9. On 17.12.1984, the defendant-appellant moved an application under Section 100 (5) read with Section 151, S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 23/38 C.P.C. for permission to hear on two other points mentioned therein. The first point is regarding the validity of the notice. It is stated in para No.4 of this application that at the time of the admission of this appeal, only one question was framed. This is not correct. The above noted two substantial questions of law were framed. Admittedly, question No.2 is regarding the validity of the notice.
10. The second question mentioned in this application is regarding the suspension of rent on account of taking back 10 bighas of land out of 20 bighas of demised land. This point does not involve any substantial question of law. Admittedly, the rate of rent was Re.1/- per bigha per annum. After taking back 10 bighas of land, the defendant was liable to pay Rs.10/- per annum as rent for the remaining 10 bighas of land. The defendant admitted in his cross- examination that the rent of ten years amounting to Rs.100/- has been accrued against him. It is clearly stated in para No.10 of the additional pleas of written-statement that the rent is lying deposited with the plaintiff at the rate of Rs.10/- per annum. In view of these facts and circumstances, it cannot be said that the rent stood suspended after 10 bighas of land was taken back from the defendant. Thus there is no force in the said application of the defendant-appellant.
11. In the result, the appeal is dismissed with costs. The defendant-appellant is given two months' time to vacate the demised land, provided he pays the entire arrears of rent and mesne profits and costs within a month from today."
18. While relying upon the aforesaid judgment, learned counsel for the respondent-plaintiff, BCSL, Mr. Rajat Dave, submitted that the said judgment has become final, as indisputably and prima-facie from checking up with the site also, no further appeal S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 24/38 against the said judgment appears to have been taken to the Apex Court. Thus, Mr. Rajat Dave contended that it is beyond pale of doubt that the Civil Court in the present case had jurisdiction to try and decide the present suit for ejectment upon termination of the lease by the plaintiff- Society and the provisions of Transfer of Property Act, were properly applied and the lease in question was determined for the breach of the conditions of the lease-deed, in terms of agreement between the parties, which clearly provided that falling in any of the conditions imposed on the lessee, nevertheless, the lease being perpetual, the lessor shall have a right to determine this lease without paying any loss or compensation to the lessee and enter and eject the lessee from the demised land. The relevant clause at Page 3 of the said lease-deed is also reproduced for ready reference:
"The lessor hereby covenants with the lessee that the lessee paying the rent hereby reserved and performing all the covenants of the lease by the lessee herein contained may hold and enjoy the demised land during the sale term without the lawful interruption by the lessor or any other person whatsoever. Failing in any of these conditions imposed on lessee, nevertheless the lease being perpetual the lessor shall have or right to determine this lease without paying any loss or compensation to the lessee and enter and eject the lessee from the demised land."
19. Both the learned counsels relied upon number of judgments, which would be dealt with hereinafter.
20. I have heard learned counsel for the parties at length, S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 25/38 perused the record of the case and judgments cited at bar.
21. The substantial question of law, as framed above, the contentions, which have been raised by both the learned counsels for the parties, essentially, revolved a round the provisions of Section 207 of the Rajasthan Tenancy Act, 1955, which enacts, a bar of jurisdiction of Civil courts for the suit and applications as specified in 3rd Schedule of the said Act, which according to these provisions of Section 207 of the Act are cognizable only by the Revenue Courts. The provisions of Section 207 of the Act of 1955 are reproduced hereunder for ready reference:
"207. Suits and applications cognizable by revenue court only - (1) All suits and applications of the nature specified in the Third Schedule shall be heard and determined by a revenue court.
(2) No court other than a revenue court shall take cognizance of any such suit or application or of any suit or application based on a cause of action in respect of which any relief could be obtained by means of any such suit or application.
Explanation-if the cause of action is one in respect of which relief might be granted by the revenue court, it is immaterial that the relief asked for from the civil court is greater than, or additional to, or is not identical with, that which the revenue court have granted."
22. Coupled with Section 207, the relevant Entry No.23 of the 3rd Schedule, which deals with suits filed or to be filed under Section 183 of the Rajasthan Tenancy Act, 1955 for ejectment of trespasser, the relevant Entry No.23 is also reproduced hereunder S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 26/38 for ready reference: -
S. No. Section Description of suit, Period of Time for Proper Court of Act application or limitation which Court Officer appeal period Fees Competent beings to to dispose run of
23 183 Suit for ejectment [Twelve When the [One Assistant of trespasser years] cause of Rupee] Collector action arises.
23. Another provision of the Rajasthan Tenancy Act, which deserves to be taken note of and which the learned counsel for the respondent-plaintiff, Mr. Rajat Dave, relied upon is Section 242, which gives right to Civil Courts dealing with a suit relating to an agricultural land, instituted in such Civil courts to remit the matter to the competent Revenue Court for limited issue relating to tenancy rights. If such a plea is raised by the party before the Civil Court and the findings of the Revenue Court to be returned upon such remittance of the case by the Civil Court, are to be binding upon the Civil Court. The said provision of Section 242 is also reproduced here-under for ready reference: -
"242. Procedure when plea of tenancy rights raised in civil courts- (1) If, any suit relating to agricultural land instituted in a civil court, any question regarding tenancy right arises and such question has not previously been determined by a revenue court of competent jurisdiction, the civil court shall frame an issue on the plea of tenancy and submit the record to the appropriate revenue court for the decision of that issue only.
Explanation-A plea of tenancy which is clearly untenable and intended solely to oust the jurisdiction of the S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 27/38 civil court shall not be deemed to raise a plea of tenancy.
(2) The revenue court, after re-framing the issue, if necessary, shall decide such issue only, and return the record together with its finding thereon, to the civil court which submitted it.
(3) The civil court shall then proceed to decide the suit, accepting the finding of the revenue court on the issue referred to it.
(4) The finding of the revenue court on the issue referred to it shall, for the purpose of appeal, be deemed to be a part of the finding of the civil court."
24. The whole emphasis in the present case is on the Court, which will have the jurisdiction to try the present suit for ejectment, possession and damages in respect of land, which was set apart for setting up a township or colony for rehabilitation of the refugees came from Pakistan and the character of the land, set apart for this purpose included the agricultural land as well as non-agricultural land. It appears that the said land was intended to be 'abadi' land and for supporting the said 'abadi' or colony, small portion of the land was given on lease to the original defendant, Mohan Lal in the present under a lease-deed Ex.1 dated 25.05.1951 for setting up a poultry farm, dairy farm and sheep breeding center so that milk, eggs or other such products can be readily supplied to the inhabitants of the society. The limited agricultural operations allowed to the defendant under Clause (vii) of the lease-deed was intended to provide feed to such animals or birds to be maintained by the defendant. The land was never intended to be given on lease to the S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 28/38 defendant for carrying out agricultural operations. On the other hand, there was specific prohibition of earning profits from the agricultural operations from such land. Admittedly, the defendant never set up any such sheep breeding farm, poultry farm or dairy farm on the land in question and thus the very purpose of giving him the lease having stood frustrated on his own saying and admission vide additional plea No.5, in his written statement itself. There is no gain-saying in the defendant's stand that since he was allowed agriculture in unrestricted manner under the lease by the plaintiff-BCSL under Resolution dated 13.07.1954, or that in fact the character of the land continued to be agricultural and even the notice terminating his lease in para 2 stated that agricultural land in question was given on lease to him, consequently, his tenancy rights in respect of such agricultural land, deserves to be determined only by the Revenue courts and not by the Civil courts.
25. In fact, no determination of any tenancy rights was involved in the present case. The rights which are determined in the present suit for ejectment, are not tenancy rights governed by the Act of 1955 but the civil rights in the form of lease hold rights over the land, which may be agricultural or non-agricultural, converted or non- converted, but the overriding fact remains that the land in question was given to the plaintiff- BCSL for setting up a township and colony for the rehabilitation of the refugees, who came from Pakistan and not for developing the agricultural operations or activities on such land. The limited agricultural crops allowed to the original defendant, S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 29/38 Mohan Lal, under Clause (vii) of the lease-deed, did not permit him to undertake full fledged agricultural operations at the altar of foregoing the main purpose of setting up of a poultry farm, sheep breeding farm or dairy farm, which terms was comprehensively described as 'industry' in the said lease-deed itself and the defendant himself admitted it to be an 'industry' in his written statement and always proceeded on this premises and even expressed his inability to undertake the activity of industry since only half of the land viz. 15 Bigha was given to him.
26. The volte face put up by the defendant before the courts below in the present litigation and before this Court and even before the Hon'ble Supreme Court that since the land was 'agricultural', and the BCSL permitted agricultural operations and he was allowed to undertake agricultural operations and in fact he did agriculture on the land, did not permit him to put aside the other terms and conditions of the lease-deed itself; and in fact that amounted to breach of conditions of the lease-deed, which resulted into the termination of the lease-deed itself by notice dated 12.03.1971 and consequential present suit filed before the learned Civil Court. Ultimately, the rights and obligations of the parties to be determined by the Civil court were in the realm different from the tenancy rights covered by the Rajasthan Tenancy Act, 1955, which could only be properly decided by the Civil Court and not by the Revenue Courts. The bar enacted in Section 207 of the 1955 Act was essentially enacted to allow revenue Courts manned by the experts of revenue law, dealing with S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 30/38 agriculture and revenue matters relating to tenancy rights under 1955 Act could neither be expected nor they were empowered to deal with other civil and property rights, arising under the instrument like lease-deed in the present case.
27. This Court, therefore, rightly held in the case of Dalpaj Raj (supra), and even initially while dismissing the present second appeal of the defendant that it is not the character of the land but the character of the rights, which are to be determined, which should decide the jurisdiction as to which Court, either revenue or the civil courts will have the jurisdiction to decide such rights. Therefore, this Court finds little force in the contention raised by the learned counsel for the appellant-defendant that in view of the character of the land, shown to be agricultural in question, the jurisdiction of the civil court, should be ousted at the anvil of Section 207 of the Rajasthan Tenancy Act, 1955.
28. Section 242 of the Rajasthan Tenancy Act, 1955, reproduced above, in fact is the complete answer to the contention raised by the learned counsel for the appellant-defendant, Mr. J.L. Purohit, which clearly envisages even civil suit in respect of agricultural land and wherein such suits the question of tenancy rights is raised as a plea, unless such civil court comes to the conclusion that such plea of tenancy has been raised merely to oust the jurisdiction of the civil court, the Civil court shall frame an issue on such plea of tenancy and remit the issue to the revenue court of competent jurisdiction to return its findings thereon. Thus, it cannot S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 31/38 be said that there is watertight compartment in the jurisdiction of two courts, civil courts and revenue courts. Admittedly, no such plea of tenant of tenancy rights was ever raised by the original defendant, Mohan Lal in the present case. Therefore, the contention that the civil court had no jurisdiction in the matter, is without any merit and deserves to be rejected and the same is accordingly rejected.
29. The other contention raised by the learned counsel for the appellant-defendant, Mr. J.L. Purohit, based on the amended definition of agricultural land, as defined in Section 5 (2) of the Rajasthan Tenancy Act, 1955 (after its amendment in 1978 w.e.f. 12.07.1978 and further w.e.f. 11.08.1987) whereby previous definition of agriculture was expanded to including cattle breeding, dairy farming, poultry farming and forestry development also within the definition of agriculture, also has no merit. Firstly, this substantive amendment in law has not been specifically made retrospective and it is well settled rule of interpretation that substantive law will have prospective application only unless it is made specifically retrospective in operation, the same cannot be given a retrospective effect. Even larger than specifically provided retrospectivity also cannot be given. Therefore, the inclusion of these activities, which the defendant was directed to carryout, namely, dairy farming, poultry farming and sheep breeding, could not be included in the term 'agriculture' for the lease-deed executed way back in the year 1951, much prior to the said amendment in the definition of 'agriculture' in the year 1978 and 1987. Even for arguments' sake, it S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 32/38 was so held to be included within the definition of agriculture, even prior to this amendment in the definition, it would not matter much in the present case, since the dominant purpose of lease was to set up a residential colony for the refugees and part of the land to the extent of 15 Bigha only was given to the defendant- Mohan Lal, to support such colony with its activities like establishing poultry farm, dairy farm and sheep breeding centre etc. which he admittedly did not set- up. The lease was not for carrying on agricultural operations as aforesaid, therefore, even if this activity was to be included in the definition of 'agriculture', from the period of lease-deed in the year 1951, the same would not convert it into tenancy rights covered by the provisions of Rajasthan Tenancy Act, 1955, so as to require its determination by the revenue court to the exclusion of the civil court under Section 207 of the said Act.
30. As already stated above, Section 242 provides for civil suits also in respect of agricultural land and, therefore, nothing turns on this contention of the learned counsel for the appellant-defendant as far as the question of jurisdiction of civil court is concerned, for which, the substantial question of law has been framed in the present second appeal of the defendant-appellant.
31. In the case of Bank of Baroda Vs. Moti Bhai & Ors. reported in (1985) 1 SCC 475, the Hon'ble Supreme Court held that a Bank's suit against an agriculturist for recovery of loan advanced to him on the basis of promissory note and guarantee as also land mortgage, filed in civil court was not barred under Section 207 and S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 33/38 256 of the Rajasthan Tenancy Act, 1955. In para 8 of the said judgment, the Apex Court has held a under: -
"8. On the question of jurisdiction, one must always have regard to the substance of the matter and not to the form of the suit. If the matter is approached from that point of view, it would be clear that, primarily and basically, the suit filed by the Bank is one for recovering the amount which is due to it from the respondents on the basis of the promissory note executed by respondent 1 and the guarantee given by respondents 2 and 3. The relief sought by the Bank is that the suit should be decreed for the repayment of the amount due from the respondents. By the second prayer, the Bank has asked that "in case of non-payment of the decretal amount", the mortgaged property should be brought to sale and if the proceeds of that sale are not enough to meet the decretal liability, the other moveable and immovable properties of the respondents should be put to sale. The suit is not one to enforce the mortgage and, even assuming for the purpose of argument that it is, the mortgage not having been executed under Section 43 of the Act, nor being on relatable to that section, the residuary Entry 35 can have no application. If that entry is out of way, there is no other provision in the Act which would apply to the instant suit. The civil court has, therefore, jurisdiction to entertain the suit filed by the appellant Bank."
32. On the retrospectivity effect as per amended definition of 'agriculture', reliance may be placed on Constitution bench decision of Apex Court in the case of Shyam Sundar & Ors. Vs. Ram Kumar & Anr. reported in AIR 2001 SC 2472, the relevant extract from para 29 of the said judgment is quoted herein below for ready reference: -
S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 34/38 "... We are, therefore, of the view that, where a repeal of provisions of an enactment is followed by fresh legislation by an amending Act such legislation is prospective in operation and does not effect substantive or vested rights of the parties unless made retrospective either expressly or by necessary intendment. We are further of the view that there is a presumption against the retrospective operation of a statute and further a statute is not to be construed to have a greater retrospective operation that its language renders necessary, but an amending Act which affects the procedure is presumed to be retrospective, unless amending Act provides otherwise. We have carefully looked into new substituted S.15 brought in the parent Act by Amendment Act, 1995 but do not find it either expressly or by necessary implication retrospective in operation which may effect the right of the parties on the date of adjudication of suit and the same is required to be taken into consideration by the appellate Court."
33. Learned counsel for the appellant-defendant placed heavy reliance on a decision of coordinate bench of this Court in the case of Ram Kripal Das Ji Charitable Trust Vs. Phool Chand & Ors. reported in 2012 (1) DNJ (Raj.) 531, in which, a coordinate bench of this Court held in para 13 as under: -
"13. It is an admitted fact that the land in dispute, an agriculture land, originally belonged to predecessors in title of the defendant-respondents and even at present stands in the revenue record as agriculture land in the name of the respondents as khatedar-tenants. It is also an admitted fact that it has not been converted for an non-agriculture purpose in accordance with law. It is also an admitted fact S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 35/38 that a temple and some other buildings have been constructed on the land in dispute and before raising such constructions no permission was obtained from the competent authority. According to appellant the land was orally gifted by the Khatedars for the purpose of construction of a temple in the year 1984 and a temple was constructed on it in the year 1985 and thereafter the land in dispute and some other land of Maharaj Shree Ram Kripal das Ji was entrusted to the appellant-trust and, therefore, the appellant has acquired ownership right in it. The appellant has sought declaration to the affect that it has acquired ownership right and the respondents be restrained by way of permanent injunction not to transfer the land in dispute to any other person and to refrain themselves from interfering in the possession of the appellant. In my view the real cause of action in the present case is alleged transfer of the land by way of oral gift/donation by the predecessors in title of the respondents to late Maharaj Shree Ram Kripal Das Ji and subsequent entrustment of it to the appellant as a result thereof acquisition of khatedar rights in it by the appellant and not the construction of a temple and some other building on it. Although it is an admitted fact that a temple and some other buildings have been constructed on the land in dispute and it is not being used for agriculture purpose since long but merely by that reason the nature of the land cannot be said to be changed. Mere construction of a temple of building on an agriculture land without proper permission cannot change its real nature. It is an admitted fact that the land in dispute in revenue record still stands as an agriculture land and respondents are khatedar-tenants of the same. An agriculture land can be used for a non agriculture purpose only in accordance with law."
S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 36/38
34. This judgment is clearly distinguishable from the facts of the present case, where the entire area was not only converted into 'Halka-Abadi' by the Ex-Ruler of Mewar vide the Patta No.11/1956, issued by the State Government under Hukum No.No.3475 dated 06.01.1948 in villages, namely, Sundarwas, Madri, Barda and Bedwas, the dominant object of setting up of plaintiff- BCSL itself was to develop a residential colony known as 'Pratapnagar', in which a portion of land measuring 15 Bigha, was leased to the original defendant- Mohan Lal for setting up of 'industry' in the form of dairy farm, sheep breeding and dairy farm. Mere allowing the defendant, Mohan Lal to carry on agricultural activities, that too for the limited extent to grow only certain specific kinds of crops for feeding the animals and birds kept in such poultry farm or dairy farm to be developed by him for supporting the colony of the residents/refugees and upon non-compliance of the various terms and conditions of the lease-deed, the said lease was terminated by Advocate's notice on behalf of plaintiff- BCSL dated 17.03.1971. Consequently, there was no question of granting any declaration or injunction as claimed by the plaintiff in the cited case, involved in the present case. On the other hand, lease-hold rights, which stood determined by the lessor (plaintiff-BCSL), the possession upon ejectment of defendant- Mohan Lal was claimed and consequently there is no question of any tenancy rights involved in the present case as distinguished from the case involved in the judgment relied upon by the learned counsel for S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 37/38 the appellant-defendant. Therefore, the said judgment is distinguishable ex-facie. Though some other judgments have also been relied upon by the learned counsel for the appellant-defendant, but since the main emphasis was laid on the aforesaid judgments, they have been dealt-with in detail and unnecessary multiplications of the case-laws on this issue is not considered expedient.
35. For the aforesaid reasons, this Court finds no force in the present second appeal of the appellant-defendant and the same is liable to be dismissed. The same is, accordingly, dismissed with costs of Rs.10,000/- and the substantial question of law, framed above, is answered like this that the suit was properly triable by civil court in the present case and the jurisdiction of the civil court was not barred in view of Sections 207 and 242 of the Rajasthan Tenancy Act, 1955.
36. The appellant-defendant Kamlesh S/o Mohan Lal shall hand over the peaceful and vacant possession of the suit land to the respondent-plaintiff (Liquidator, BCSL) within a period of three months from today and shall pay mesne profit @ Rs.1,000/- per month commencing from September, 2012 and will further continue to pay the mesne profits each month by 15th day of the next succeeding month or in advance to the respondent-plaintiff till the vacant possession is handed over to the plaintiffs-respondent and in case there is any default in payment of mesne profit, the period of three months for eviction shall stand reduced and the decree of S.B. CIVIL SECOND APPEAL No.78/1983 Kamlesh Vs. Liquidator, Bhopal Cooperative Society Ltd. & Ors.
Decision dt: 18/09/2012 38/38 eviction would become executable forthwith. The appellant- defendant shall also clear all the arrears of the rent or mesne profit within three months from today, otherwise the amount shall bear interest @ 9% p.a. and executing Court may quantify such amount and recover the same as a money decree. The defendant-appellant shall also not sub-let, assign or part with the possession of the suit land or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and if so created the same would be treated as void. The appellant- defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit land is not handed over or rent or mesne profits are not paid to the respondent-plaintiff within a period of three months from today, besides expeditious execution of the decree in normal course, the respondents-plaintiffs shall also be entitled to invoke the contempt jurisdiction of this Court. Copy of this judgment be sent to the courts below and parties concerned forthwith.
(DR. VINEET KOTHARI), J.
DJ/-
1