Jagadhar v. State Of U.P .

R.R Mathur, J.:— This is an appeal, under Section 5(3) of U.P Urban Areas Zamindari Abolition and Land Reforms Act, 1956 from the order passed by the Additional Commissioner, Varanasi Division, under subsection (1) of Section 5 of the aforesaid Act.

2. On the report of the Naib Tehsildar, dated June 20, 1963 that plots Nos. 10/2 to 1017, situated in Gausabad within the Municipal limits of Varanasi be demarcated as agricultural area.

3. When these proceedings were started, Rai Chandi Prasad filed an objection saying that the land in dispute was appurtenant to house No. 1512 situated on plot No. 10/1, and hence, it should be demarcated as non-agricultural area. The plots in dispute are situated within a pakka boundary-wall, which encloses the house. Relying upon the High Court ruling Smt Ajdulaht v. Fazlul Rahman ( . 1963 A.W.R), the learned Additional Commissioner held that the land in dispute, which was situated inside the compound of the house, was non-agricultural area, and that it shall be demarcated as such.

4. Jagadhar, Jairam and Smt. Sagwanti have now came up in second appeal before the Board, and I have heard the learned counsel for the parties at length. The appellants' learned counsel argued that the learned lower appellate Court wrongly relied upon the ruling as the facts of that case were different from the one in this case. He urged that in present case, the question for determination was whether the land in dispute was agricultural or not. The learned counsel argued that the kothi, which bears Municipal No. 1512 is situated on plot No. 1011 with an area of 50 acres, while the area of plot No. 10/2 is 92 acres; that of 10/3.14 acres; that of 10.4.28 acres; that of 10/5.08 acres; that of 10.6.15 acres and that of 1017.33 acre. The learned counsel urged that so much land which is being cultivated by the appellants and other persons cannot be termed to be appurtenant to the house in question. The learned counsel argued that the meaning of the term appurtenant' was an appendix or an adjunct, and accessory or annexure to another thing more worthy. The learned counsel pointed out that the appellants other persons have been in possession of these sub-plots from three years right upto 39 years, and this shows that the proprietors of the kothi set apart this land for cultivation purposes, and the same ceased to be an appurtenant to be kothi and was now pure and simple agricultural area. The learned counsel argued that the learned Additional Commissioner did not record evidence to find out whether the land in dispute was cultivated or not by the appellants, and others, and without such evidence he should not have demarcated the land.

5. The learned counsel for the respondents, on the other hand, urged that all the three appellants had no common interest in the various sub-plots for which these appeal has been filed. It is true that they have no concern with plots Nos. 10]4 and 10/6, and in the third plot No. 10, 7 Jagadhar, appellant No. 1, has no interest. The learned counsel urged that the appellants had filed no proper objection in this case, and their prayer was that the plots in dispute be decided to be in their possession. He urged that they had never prayed that the land be demarcated as agricultural area. It is also true that the three appellants have no concern with all the plots in dispute. But all of them have interest is plots Nos. 10/2, 10/3 and 10/5, while in 10/7 two of the appellants, viz. Jairam and Smt. Sagwanti have interest. There is no force in the arguments of the learned Counsel that the objection was not proper one on the ground that the appellants had not prayed that the land be demarcated as agricultural area. The objector in this case was Rai Chandi Prasad, respondent No. 6, and he had filed objection saying that the land be not treated as agricultural area, but that it be treated as non-agricultural area.

6. The main question for determination is whether the land in dispute, which is enclosed within the four walls of a pakka boundary, in which a pakka kothi is also situated on the land appurtenant to that house or not, despite the fact that it is being cultivated by persons other than the owner of the kothi. In this connection, it is necessary to look to the definition of the expression ‘agricultural area’ as given in Section 2(1) of U.P Urban Area Zamindari Abolition and Land Reforms Act. This subsection is divided into five clauses of which clause (c) is relevant for the purposes of this case. This sub-clause reads as follows:—

“Agricultural area” as respects any urban area means an area which, with reference to such date as the State Government may notify in that behalf, if—

(c) included in the holding of—

(i) a fixed-rate tenant,

(ii) an exproprietary tenant,

(iii) an occupancy tenant,

(iv) a tenant holding on special terms in Avadh,

(v) a rent-free grantee,

(vi) a grantee at a favourable rate of rent,

(vii) a hereditary tenant,

(viii) a grove-holder,

(ix) a sub-tenant referred to in subsection (4) of Section 47 of the U.P Tenancy Act, 1938, or

(x) a non-occupancy tenant of land other than land referred to in subsection (3) of Section 30 of the U.P Temporary Act, 1939, and is used by the holder thereof, for purposes of agricultural or horticulture:

Provided always that land which on the date aforesaid is occupied by build ings not being “improvements” as defined in Section 3 of the U.P Tenancy Act, 1939, and land appurtenant to such buildings shall not be deemed to be agricultural area.

7. The proviso to this clause will show that despite the fact that a particular land be included in the holding of the various kinds of tenants enumerated above, yet land appurtenant to such buildings which are not “improvements” shall not be deemed agricultural area. It is no-body's case that the Kothi on the house is an “improvement” Hence, despite the fact that the land in dispute may be the holding of same tenant, yet it shall not be deemed to be an agricultural area, and the land shall be deemed to be appurtenant to such building. In this connection, the fulling of the High Court, on which the learned Additional Commissioner has relied, becomes relevant. His Lordship was pleased to hold in the aforesaid ruling that:—

“Even if a particular piece of land lies inside of a compound of a house, it must be deemed to have been settled with the owner of the house, and the mere fact that that land is being used for a different purpose, than the house would not take away the character of its being appurtenant to the house. Even if a Bazar is held on the land in dispute yet it being a part of the park of a bigger house of the plaintiff the court below was right in treating it as appurtenant to the plaintiff's house.

8. In the ruling referred to above, the dispute was whether the piece of land situated within the compound of a house but on which a Bazar used to be held on certain week days would be treated as land appurtenant to the house, and the finding was in the affirmative. On the same principle, the land which is now being cultivated would be deemed to be appurtenant to the house, for actually the legal definition of the terms ‘appurtenant’ as given in Webster's Dictionary of legal terms is ‘that which belongs to something else’. In this case, the agricultural land belongs to the building or to the Kothi, and hence despite the fact that the land is being cultivated by persons other than owners of the Kothi, it will be termed Agricultural area, as laid down in Clause (c) of subsection (1) of Section 2 of the aforesaid Act.

9. I would, therefore, not like to interfere in the order of the court below, and would dismiss this appeal with costs, and Rs. 30/- as counsel's fee.

10. C.C.O No. 73 for R.D