Nanak Chand vs Sobha Singh
1993 Latest Caselaw 439 Del

JUDGMENT

P.K. Babri, J.

(1) This regular second appeal has been brought against judgment and decree dated 5/10/1976, of an Additional District Judge by which he had dismissed the appeal brought by the appellant against the judgment and decree dated 15/03/1974, of Sub-Judge, 1st Class,Delhi, by which the suit of the respondent brought against the appellant in respect of recovery of possession of two plots measuring 136 'x 176 'and155 ' x 43 'as per plans Ex. P-3 and P-4 was decreed. There was another plot measuring 150' x 155' depicted in plan Ex. P-6 which was also let out to the appellant separately and a separate suit was brought for getting eviction of the appellant from that plot and that suit was also decreed by the samejudgment. No dispute remains in respect of the said plot. This appeal pertains only in respect of the decree passed in respect of the two plots.

(2) The facts of the case, in brief, are that these two vacant plots had been let out to the appellant at the yearly rental of Rs. 300.00 and Rs. 100.00respectively on 21/03/1954 and the tenancy in respect of these two plots stood terminated by giving a notice of termination dated 16/08/1966. In the simple suit seeking ejectment from the two plots after termination of the tenancy of the appellant which was prior to the enforcement of the Transfer of Property Act in Delhi, the appellant came up with the plea that the said plots had been let out to him for agricultural purposes inasmuch as he hadbeen given permission to cultivate the land for growing flowers and for keeping the flower pots and thus, in view of the provisions of the Punjab TenancyAct, the Civil Court had no jurisdiction.

(3) The respondent in the plaint has not specified any letting purpose of the said plots and in replication the respondent took the plea that in fact these plots had not been let out for the aforesaid purpose mentioned in thewritten statement still the respondent did not in the replication make it clear as to if the plots were not let out for growing flowers, for what purpose the said plots had been let out, The appellant had taken various other pleas in resisting the suit but having failed in both the Courts below, in this appeal the learned Counsel for the appellant has challenged the impugned judgment and decree only on the ground that the plots having been let out for agricultural purposes, the provisions of Punjab Tenancy Act of 1887, as applicable to Delhi, were applicable and the plots were covered by the definition of land given in Section 4(1) of the said Act and thus, the Civil Court had no jurisdiction to entertain the suit for eviction of the appellant.

(4) The first question to be decided in the present appeal is as to for what purpose the plots had been let out to the appellant and secondly, if the plots are proved to have been let out for agricultural purposes, whether the plots are covered by the definition of land given in Section 4(1) of the saidAct.

(5) As far as letting purpose is concerned, the finding is so obvious from the pleadings that I have not been able to appreciate the finding of the learned Sub-Judge that the plots had not been let out for growing flowers and had been let out only for keeping flower pots. In my opinion, it was incumbent upon the respondent to have taken a specific plea in the pleading as to for what purpose actually the plots had been let out. Mere saying and pleading that the vacant plots had been let out would not have the effect of controverting the plea of the appellant taken in the written statement that the plots had been let out for growing the flowers which is an agriculturalpurpose. At any rate, both the Courts below have held that the plots havebeen used for growing the flowers at all times and if that is so, the letting purpose was so obvious in absence of any written agreement of lease having been executed in favor of the appellant showing the letting purpose that infact, the plots must have been let out for growing flowers and keeping the flower pots which is a nursery business and the finding of the learned Sub-Judge to the contrary cannot be sustained as it is based on misinterpreting the pleadings of the parties.

(6) As a matter of fact, the first Appellate Court has not endorsed this finding of the lower Court that the plots had been let out only for keeping flower pots although in one sentence the lower appellate Court had mentioned that there is evidence with regard to the same but still after noticing that the plots have been used for growing flowers the lower Appellate Court had left the matter at that and had not given any definite finding either way. The judgment of the lower Appellate Court is mostly based on the interpretation of the land as given in Section 4(1) of the said Act. Be that as it may, I hold that the plots in question had been let out for growing flowers. If that isso, the legal inference is obvious that growing of flowers being a part of horticulture is included in the definition of "agriculture". The earliest judgment given on this point is of Division Bench of Madras High Court in the case of Pavadai Pathan & Anr. v. Ramaswami Chetti & Ors., Air 1922Madras 351. In this judgment the definitions of "agriculture" appearing inWebster's dictionary and Oxford dictionary and other dictionaries have been taken note of. The question which arose for decision before the Division Bench was whether the lease of land granted for growing casuarina trees could be termed as an "agricultural lease" or not within the purview of Section 117 of the Transfer of Property Act. It was held that the "agriculture" connotes the raising of useful or valuable products which derive nutriment from the soil with the aid of human labour and skill and it was held that the rearing of casuarina plantation is covered by the definition of "agriculture" which requires preparation of the ground and subsequent care by watering the plants.

(7) A Division Bench of Lahore High Court in Ujagar Singh & Anr.v. Bhagwana, Air 1936 Lahore 780. was considering the question whether a garden could be termed as a land for purpose of Punjab Tenancy Act. It was held that a fruit garden is a land within the meaning of the definition given in that Act. The East Punjab High Court in the case of Dr. Dault Siting v. Hazard Singh & Ors. Air 1950 East Punjab 90, considered the question whether a particular agricultural land which has been used for agriculture purposes earlier ceases to be land covered by definition of Section 4(1) if it is subsequently included as part of Village Abadi, It was held that the character of the land being agricultural would not cease to remain so on the mere fact that the same has been included in Village Abadi.

(8) Commissioner of Income-tax v. Benoy Kumar Sahas Roy, , was dealing with the definition of "agricultural income" as appearing in the Income-tax Act. That definition has a different connotation and would not be of any help in deciding whether the land in question can be treated as let out for agricultural purposes. The Supreme Court, however,has expressed that the term "agriculture" in various dictionaries has been used both in the narrow sense of cultivation of the filed and the wider sense of comprising all activities in relation to the land including horticulture,forestry, breeding and rearing of livestock, dairing, butter and cheese-making,husbandry, etc. Whether the narrower sense of the term "agriculture" should be adopted or not in a particular case depends upon the provisions ofthe various statutes in which the definition occurs. In para 95 of the judgment the Supreme Court has held that the primary sense in which the term" agriculture" if understood is agar, i.e. field and cultivation, which mean the cultivation of the field and the term is understood only in that sense, agriculture would be restricted only to cultivation of the land in the strict sense ofthe term meaning thereby, tilling of the land, sowing of the seeds, planting and similar operations on the land. If we go by this definition of "agriculture" given in this judgment, it is evident that growing of flowers would require tilling of the land and plantation of seeds and after the flower plantssprout, they require weeding, digging the soil around the growth, removal of undesirable under-growths and all operations which foster the growth and preserve the same not only from insects and pests but also from depredation from outside. The growing of flowers would also include tending, pruning,cutting, harvesting and rendering the produce fit for the market. So, by no stretch of reasoning it can be held that growing of flowers as a nursery would not amount to agriculture purpose. I hold that in the present case the plots had been let out to the appellant for agricultural purpose.

(9) The most material question to be decided is whether the plots in question could be deemed to be covered by definition of land given in Section 4(1) of the Punjab Tenancy Act. Section 4(1) reads as follows : "LAND means land which is not occupied as the site of any building in a town or village and is occupied or has been let out for agricultural purpose or for purposes subservient to agriculture or for foster and includes the sites of buildings and other structures of suchland. If a particular plot is occupied as a site of any building even if it is used for agriculture purpose, the same would not be covered by the definition of land given in Section 4(1)."

(10) The plots in question are part of a 7.5 acres of land given to the respondent at first under agreement for lease dated 8/10/1945 and thereafter under a regular perpetual lease-deed dated 19/05/1969, which was effective from 10/08/1943. The agreement for lease, certified copy of which is proved in the Trial Court Ex. PW-4/1, shows that the lease is intended to be granted for the purpose only for building and executing works for the purpose of constructing residential blocks of flats. Clause 7 of the subsequent lease deed Ex. PW-4/3 also makes it clear that the said land could not be used for trade or business or for any purpose other than that of blocks of residential flats. So, the terms of the said two documents abundantly make it clear that the whole of the land including the plots in question were given in the urban area for purposes or constructing residentialflats. So, it cannot be held that the plots in question are not occupied as the site of any building in a town. If that is so, the plots in question though let out for agricultural purposes, yet are not covered by the definition of landgiven in the said statute.

(11) The learned Counsel for the appellant has argued that may be the said land had been given as a site for constructing residential blocks yet after the building had been constructed on the basis of the agreement for lease,the President of India had granted a lease deed in 1969 when the plots in question had been already let out to the appellant by the respondent foragricultural purposes and he would like me to hold that the plots would not be deemed to be occupied as the site for building in a town. I do not find any merit in this contention. The terms of the agreement for the lease andthe subsequent lease-deed make it evident that the whole of the land including these plots was meant as a site of building in a town of Delhi even prior to the letting in question. Hence, the ratio in the case of Dr. Daulat Singh(supra) is not applicable in the present case. If that is so, it is evident that these plots are not covered by the definition of 'land' given in Section 4(1) ofthe Punjab Tenancy Act.

(12) In view of the above discussion, I find no merit in this appeal which I, hereby, dismiss with costs. The appellant is given one month time for complying with the decree.