Om Parkash vs Bawa Dharam Dass

(1) The appellant who is the landlord brought a suit against the respondent who is the occupancy tenant under him for ejectment of the latter from two parcels of land aggregating 20 Kanals and 17 Marias comprised in Khasra Nos. 73 and 74 of village Gopal Pora, Tehsil Jammu.

(2) The ejectment of the respondent from the suit land was sought by the appellant on the grounds that the land had been given to the defendant only for cultivation but the defendant had planted an orchard thereon and thus rendered it unfit for cultivation, that the defendant had failed to pay the Malakana and to cultivate the land for more than a year.

(3) The suit was resisted by the defendant inter alia on the ground that an orchard was planted by him about 17/18 years ago arid that planting of an orchard could not be a ground for his ejectment.

(4) On the pleadings of the parties various issues were framed by the Assistant Commissioner, Jammu to whom the suit was transferred for disposal by the Collector, Jammu Out of these issues we are only concerned with issues No. Sand 4 which are reproduced below for facility of reference :

(3) Whether the land in dispute was originally given to the defendant merely for purpose of cultivation and whether the defendant had rendered it unfit for cultivation by planting an orchard thereon ? OPP

(4) (i) Whether the defendant had paid the rent for the previous year?

(ii) In case the issue contained in 4 (i) is proved in favour of the plaintiff whether the defendant is liable to ejectment on that account?

OPD

To substantiate his allegations the plaintiff examined Shri Raghbir Singh Patwari, Chowdhry Jagat Singh, Beli Ram, Bhima and his own father Shri Isher Dutt. The defendant, however, did not think it necessary to lead any evidence in rebuttal.

The learned trial court after recording the evidence and hearing the learned counsel for the parties came to the conclusion that the plaintiff had failed to prove by means of any satisfactory evidence that the land in dispute had been given originally to the defendant merely for cultivation. The learned trial court further came to the conclusion that although the defendant had not adduced any evidence to prove that he had paid the rent pertaining to the previous year, yet non payment of rent alone could not constitute a sufficient ground for his ejectment and that for extinction of tenancy under section 43 of the Jammu and Kashmir Tenancy Act, 1980 (1923 A.D.), two conditions must be fulfilled: (1) that the tenant failed for more than a year without sufficient cause to cultivate his tenancy either by himself or some other person and (2) to arrange for payment of rent thereof as it fell due and since both the conditions had not been satisfied, the question of defendant's ejectment did not at all arise. The learned trial court further came to the conclusion that it has not also been proved that the respondent had failed to cultivate the land for more than a year. The first part of Issue No, 4 was, therefore, decided against the defendant and the second part decided against the plaintiff. The learned trial court also held that the plaintiff of the fruit trees comes within the ambit of the expression "improvement" as contemplated by section 71 of the Jammu and Kashmir Tenancy Act. With these findings the suit of the plaintiff was dismissed.

(5) On appeal the learned Collector, Jammu, while observing that technically the land had been rendered unfit for cultivation came to the conclusion that it had not been proved that the interest of the landlord had been injured by planting of an orchard With these findings he dismissed the appeal and upheld the judgment and decree of the learned trial court. The plaintiff has now come up in second appeal to this court.

(6) Mr. V. S. Malhotra appearing in: support of the appeal has urged that in view of the pleadings of the defendant it should have been held by the trial court that the land had been given originally to the defendant for cultivation, and since the land had been rendered unfit for cultivation even according to the findings of the learned Collector, a decree in favour of his client should have followed He has relied on a ruling of the Madras High Court, reported in I. L. R. 10. Madras 352.

(7) Mr. G. L. Gupta, appearing for the respondent has on the. other hand urged that under section 71 of Tenancy Act an occupancy tenant is entitled to make improvements and if his client who is admittedly an occupancy tenant has planted an orchard on the land in dispute, he has definitely made improvements as contemplated by the Jammu and Kashmir Tenancy Act and he cannot be ejected from, the land in question when he has not injured the interest of his landlord but has on the other hand improved the position of the land. The learned counsel has drawn my attention to a ruling reported in 34 Indian Cases 248 wherein it has been held that the planting of trees specially of fruit trees by a tenant constitutes an improvement within the meaning of the term ""improvement'' as used in the Punjab Tenancy Act.

(8) I have given my earnest consideration to the submissions made by the learned counsel for the parties but I find myself unable to accede to the contentions advanced by the learned counsel for the appellant. The ruling reported in ILR 10 Madras, 352 in which it has been held that a tenant from year to year is not at liberty to change the normal course of husbandry without the consent of the landlord and is not entitled to convert the land under his cultivation into a mango grove is not helpful to the appellant as the facts of the instant case are clearly distinguishable. The present case admittedly does not relate to the ejectment of a tenant from year to year and the fact that the orchard in question according to the appellant's own evidence was planted 17 to 13 years ago and has since been in existence justifiably leads to the conclusion that the plantation of the orchard must have been with the consent, express or tacit of the landlords, the plaintiff appellant having become the sole owner of the suit land only in 1955

A. D.

(9) Even assuming that the land was given in the instant case only for cultivation (for which there is no satisfactory proof) I find it difficult to hold that it has been rendered unfit for the purpose far which it was let out. The question whether the land is rendered unfit for cultivation depends on the circumstances of each case. If the land given for cultivation is turned into a tank or a building is raised on it, it can be said to be an act inconsistent with the purpose for which it is let, but if an orchard is planted thereon it may not necessarily he rendered unfit for cultivation. The answer to the question would depend on a variety of factors like the nature and number of the trees planted and the distance at which they are planted from each other. In the instant case apart from the fact that it has not been proved that the soil has been rendered unfit for cultivation, it has also not been proved as to how many fruit trees have been planted and what is the distance between them. It has also not been proved that the distance is so close that it cannot admit of any cultivation either in the space intervening between the trees or under the trees.

(10) That apart, in the present case, it is manifest from the statements of the appellant's own witnesses, namely Raghbir Singh Patwar, Jagat Singh, Beli Ram and Bhim that the value of the land in dispute instead of depreciating has appreciated because of the orchard planted by the respondent.

If according to section 71 of the Jammu and Kashmir Tenancy Act, it is open to an occupancy tenant to make improvements and planting of an orchard constitutes an improvement as held in 34 Indian Cases 248 (Supra) and also admitted by Shri Raghbir Singh Patwar, the witness appearing on behalf of the appellant, it is difficult to hold that the land has been injuriously affected in terms of section 44 (1) (a) of the Act. An interpretation of this kind would create a conflict between section 44 and 71 of the Act and render nugatory the provisions of the latter section.

This would also be repugnant to the well known and cardinal rule of harmonious construction of statutes according to which an attempt should as far as possible, be made to reconcile and not to create a conflict between different provisions of the Statutes.

(11) Furthermore it appears from the statements of the appellant's witnesses namely Raghbir Singh Patwari and Isher Dutt that the respondent is not liable to pay rent to the appellant on the basis of yield from the land but is liable to pay fixed Malikana at the rate of six annas per rupee of land revenue The interest of the appellant can not therefore be said to have been injuriously affected by the planting of the orchard and the tenure of the respondent cannot be disturbed on that account.

(12) For the foregoing reasons, I find no force in this appeal, which is dismissed but in the circumstances of the case without any order as to costs.