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Judgment
(1) This is a civil second appeal arising out of a suit for injunction brought by the respondents Krishen Kumar and Kashmiri Lal restraining the
defendant No. 1 Karam Chand from constructing a house on agricultural land, under survey No 195/ 112 situate in village Chak Panali Tehsil
Jammu with the allegation that under this survey No. 15 marlas of land belonged to the plaintiff as well as defendants Nos. 2 to 4. The defendant
No. 1 in order to cause loss to the plaintiff and the proforma defendants was collecting bricks etc to construct a house on this land which he was
not entitled to without the owner's permission.
(2) The defence of the appellant defendant No. 1 was that he is a protected tenant of this land and was legally competent to construct a house
thereon in the shape of improvement. The defendant had constructed a residential house on this land. He was rebuilding the same as the previous
house was about to collapse. The previous house was build with the permission of the plaintiff. The land on which the construction was going to be
set up did not produce any crop. The jurisdiction of the civil court to hear the suit was denied. Two issues were struck by the trial court in this case
on the pleadings of the parties and they were as under :
Whether the defendant No. 1 being a protected tenant is entitled to construct a house on the suit land for the purpose of improvement and the
plaintiff could not object to it ? OPD
Whether the present case is not triable by the Civil Court ? OPD
(3) The trial court of Munsiff Jammu decided issue No. 1 in favour of the defendant but decided issue No. 2 against him. The result was that the
suit of the plaintiff was dismissed by the trial court on 22nd May, 1964. An appeal was preferred in the court of the District Judge Jammu against
the judgment of the Munsiff Jammu and on creation of Addl : District Judge's Court at Jammu, this appeal was transferred to him and who by
means of a decree dated 24101967 reserved the decree of the trial court and decreed the respondent's suit. Issue No. 2 was decided by the
lower appellate court in the same manner as by the trial court holding that the civil court had jurisdiction to hear the case The trial court had held
that the construction of the house was in the nature of improvement and the defendant appellant being a protected tenant was within his right to
construct the house. The finding was reserved by the lower appellate court. Against this decree of the lower appellate court the present appeal has
been preferred by the defendant appellant.
(4) I have heard the learned counsel for the parties. Both the issues were argued before me by the learned counsel for the parties. Therefore, I shall
have to return a finding on both the issues.
(5) Issue No. 1 is as already recorded, with respect to the right of the defendant appellant to construct the house. Under the ordinary Civil law
there is a series of cases decided by English Courts and Indian Courts where injunctions have been granted against a tenant for committing any
breach or otherwise damage the lands held under his tenancy. In Lal Sahoo Vs. D v Narain, 8 C. 781 it has been held :
''A tenant by virtue of his demise does not obtain any other dominion over the land than is consistent with the contract under which it is held.
(6) If the tenant used the land for any other purpose than for which it was leased out to him, a suit for permanent injunction can lie. In Tarinee Vs.
Dev Narian, 8 B. L. R. App. 69 it was held that :
A tenant may not, on land let out for cultivation construct a tank, or an orchard.''
(7) Similarly a tenant who changes the character of his cultivation in such a way as to permanently injure the interest of the landlord in. the land
commits a wrong for which a suit for damages or injunction or both will lie. (See Noyna Vs. Rupikun 9 C 610).
(8) In Keer on injunctions (6th Edition) 54, 55 it was held that :
Any permanent alteration of the character of the land, such as the conversion of meadow into arable land by ploughing it up or arable land into
wood, or a meadow into an orchard is waste, even though the value of the land be increased because it not only changes the course of husbandry
but affects the proof of title.5' Even the removal of hay straw, dung, crops etc from a farm is waste where it is contrary to the custom of the
country and could be restrained by an injunction. See Kimpton Vs, Eve, 2 V & B 34$. In Anand Vs. Vissonath 17 WR 416 it was held.
''No tenant taking land is entitled, without some specific agreement on the subject, to change the nature of the land from what it was when he got it
or to make a permanent alteration in the state of landlord's property.
(9) In Lal Sahoo Vs. Deo Narain, 3 Cal. 781. It was held that :
'""The statutory right of the occupancy in the Bengal Act could never include complete domination over the land, subject only to the payment of rent
liable to be enhanced on certain conditions and that the landlord is entitled to insist that the land shall be used for the purpose for which it was
granted and although a liberal construction may be adopted it cannot extend to a complete change in the mode of enjoyment.
(10) In BhLal Vs. Raja of Bansi, 4 Allahabad:
The tenant was restrained by injunction from building on the land let out to him.'
(11) This is the law governing the relation between landlord and tenant under the ordinary civil law. The learned counsel for the appellant has
argued that this case is governed by the Tenancy Act No. II of 1980. He is correct in this submission, but we shall examine the aspect of the case
also.
(12) It has been argued by the learned counsel for the appellant that the defendant appellant was a protected tenant of a big area of the
respondents. He has further argued that a protected 'tenant had the right to effect improvement on his tenancy under section 71 of the Tenancy
Act. He has further invited my attention to Sec. 2 SubSection 9 of the Tenancy Act wherein the word 'improvement' has been defined. The word
'improvement' under this section means any work which is suitable to the tenancy and consistent with the purpose for which it is held by which the
value of the tenancy has been and continues to be increased and which if not executed on the tenancy is either executed directly for its benefit or is,
after execution made directly beneficial to it and under explanation No. 1 it includes the erection of the, buildings on the tenancy or its immediate
vicinity elsewhere than on the village site, required for the more convenient or profitable use or cultivation if a tenancy. According to the learned
counsel this building was being constructed for the convenience and profitable use and cultivation of the tenancy. The learned counsel argued that
the preset t accommodation of the appellant defendant was not sufficient for his family and his cattle. He was driven to construct the new house in
order to reside himself and lodge his cattle also therein. In this way' it will be better for him to improve his tenancy.
(13) The argument is entirely based on the wording of the section and has no application to the facts of the case. In order to bring this case within
the definition of improvements given above in this tenancy certain specific and definite matters had to be pleaded and proved. The defendant in his
written statement nowhere stated that for the more convenient and profitable use or cultivation of the tenancy this building was being constructed
by him. On the other hand, in the written statement he simply stated that he had a previous building on the site which was collapsing. He had only
constructed one wall thereof. The lower appellate court, after going through the evidence produced by 1 the parties has found that the defendant
appellant had a building and a court yard within 5 marlas of land near which he was constructing a pucca building in addition to the one already on
the spot. The argument of Mr. Bhagat Ram Sharma learned counsel for the appellant hat it was for the benefit of the tenancy that he was
constructing the new house, is contradicted by facts. The old house is there. The, defendant appellant without any justification and in order to grab
more land belonging to the owner landlords has started another building on this land. Under explanation 3 of this very definition of improvement, it
is stated that any work that substantially diminishes the value of any other part of the landlord's property, in not an improvement unless it is made
with the written consent of the landlord. Here it is argued by the learned counsel for the respondents that this construction diminishes the value of
the other pare of the landlord's property because the tenant appellant is bound to pay the landlord rent for the entire tenancy. By constructing this
new building the land underneath the building and appurtenant thereto cannot be used for cultivation for growing crops and consequently the
landlord would be deprived of his share of the produce. The argument of the learned counsel for the appellant, Mr. B. R. Sharraa is without any
substance and I confirm the finding of the lower appellate court on issue No. 1.
(14) The second issue is with respect to the jurisdiction of the civil court. Mr. B R. Sharma further argued that the civil court had no jurisdiction to
hear this case. The case falls u/s 85 First Group which is in the following words :
Any other suit between the landlord and tenant arising out of the lease or conditions on which a tenancy is held"".
(15) Therefore, the civil court had no jurisdiction to hear the suit. In support of his contention he cited an authority reported as 1916 Lahore page
86 which lays down that a suit for a perpetual injunction that the defendants being plaintiff's occupancy tenants, be prohibited from building houses
on land forming part of the occupancy tenancy is cognizable by a Revenue Court only. The body of the judgment clearly shows that the suit was to
restrain the tenant from violating the conditions on which he held the tenancy. There was controversy in the Punjab High Court also and a number
of cases have been cited in that authority. But their Lordships ultimately Lald down that there was no foundation for the idea that suits brought
under the specific Relief Act are ipso facto untreatable only by a Civil Court and therefore, held that a suit under section 77 (3) Punjab Tenancy
Act which corresponds to Section 85 first Group of the Jammu end Kashmir Tenancy Act, was cognizable by a Revenue Court. Mr. Inderjeet
Gupta, the learned counsel for the respondents has cited authorities to controvert this argument of Mr. B R Sharma. He has cited AIR 1960
Mysore 211, AIR 1959 Allahabad 1 (Full Bench) and AIR 1956 Hyd. 192. The Full Bench authority of Allahabad High Court lays down that :
It is not possible either on the basis of the terms of Section 242 or on account of the amendments introduced in it from time to time to uphold the
contention' that the Legislature intended that provided it relates to agricultural land every kind of suit irrespective of its nature or scope was to be
triable by the Revenue Court alone and could not be filed in the 'Civil' Court. The Section confers exclusive jurisdiction on the revenue court and at
the same time takes away the jurisdiction of the Civil Court only in respect of two kinds of actions. (1) Suits or application of the nature specified in
the Fourth Schedule of the Act and (2) Suits or applications based on a cause of action in respect of which any relief can be obtained by means of
a suit or application specified in that schedule.
(16) In the Hyderabad authority it is clearly Lald down that Section 99 of the Hyderabad Tenancy and Agricultural Lands Act bar the jurisdiction
of the Civil Court only if the case is of such a nature as is required to be settled by the authorities mentioned in Sub para (1) that there was no
section in the Act which covers the grant of relief of perpetual injunction. The court further Lald down that an order made by the court forbidding a
person from doing a certain act of a certain class upon pain of going to prison for an indefinite time as contemner of the court..... The 'prevision
relating to the issue of perpetual injunction cannot therefore, be held to be a closed chapter in so far as landlords and tenant of agricultural lands are
concerned.
(17) Section 85 of the J&K Tenancy Act lays down in the First and the second Group that suits of Particular description (and the Sections under
which those suits are brought are also mentioned in most of the parts of the Section) are cognizable by a revenue court. A perusal of the entire
section would make it clear than neither the Tenancy Act nor the Categorisation of suits in this section would indicate that a suit for perpetual
injunction was to be tried exclusively by a revenue court or that the jurisdiction of the civil court was ousted to hear such a suit. In fact it is the civil
court which has jurisdiction to hear all suits of civil nature unless their cognizance is expressly barred by some provisions of law.
(18) The above discussion clearly indicates that such a suit is cognizable by a civil court and not by a revenue court and therefore I am of the
opinion that the argument of the learned counsel for the appellant on issue No. 2 also fails and the result is that there is no force in this appeal,
which is hereby dismissed with costs.