Shri Jaswant Singh etc. vs The Dev Samaj Solan etc.

R.S. Pathak, C.J.—This is a Plaintiff''s second appeal arising out of a suit for possession. At the outset, learned Counsel for the Defendant-Respondent has raised a preliminary objection that the appeal is not maintainable. An affidavit has been filed in support of the objection. The contention is that the appeal falls under paragraph 32(1)(a)(ii) of the Himachal Pradesh (Courts) Order, 1948, and as the value of the suit is less than Rs. 2,500 the second appeal is not maintainable. Learned Counsel for the Plaintiff-Appellant contends that paragraph 32(1)(a) does not come into play and it is paragraph 32(1)(b) which does.

In order that paragraph 32(1)(b) should apply the suit must be a land suit. A "land suit" has been defined by paragraph 2(iv) of the Himachal Pradesh (Courts) Order, 1948, as "a suit relating to land as defined in Clause (1) of Section 4 of the Punjab Tenancy Act, 1887, or to any right or interest in such land". According to Section 4(1) of the Punjab Tenancy Act, 1887, "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 for agricultural purposes or for purposes subservient to agriculture, or for pasture, and includes the sites of buildings and other structures on such land", The plaint in the suit does not disclose that the land is occupied or has been let for agricultural purposes or for purposes subservient to agriculture or for pasture. Nor docs it show that it is the site of a building or other structures. According to the findings of the trial court and the lower appellate court it is a path-way. The grounds of appeal filed in this Court do not challenge the findings of those courts that it is a path-way. Indeed, they proceed on the basis that it is such path-way. An affidavit has been filed in this Court by the Defendant-Respondent, and it is averred that the land in dispute has neither been occupied nor has been let for agricultural purposes not for purposes subservient to agriculture nor for pasture, and it cannot be used as the site of a building or other structure. No affidavit in reply has been filed by the Plaintiff-Appellant, although sufficient time has been allowed. Upon the aforesaid considerations, it must therefore be taken that the land in dispute does not satisfy the definition of "land" u/s 4(1) of the Punjab Tenancy Act and, therefore, the suit cannot be treated as a "land suit" within the meaning of paragraph 2(iv) of the Himachal Pradesh (Courts) Order, 1948. It is not a small cause suit either. Therefore, it must be treated as an "unclassed suit" by reason of paragraph 2(vi) of the Himachal Pradesh (Courts) Order, 1948. That being so, paragraph 32(1)(a) is attracted and not 32(1)(b). Admittedly, the decree of the lower appellate court affirms the decree of the trial court and, therefore, Sub-clause (i) of paragraph 32(1)(a) of the Himachal Pradesh (Courts) Order, 1948, cannot be applied. It is Sub-clause (ii) which applies. But when Sub-clause (ii) is read, it is apparent that it applies to a suit whose value is Rs. 2,500 or upwards, or in which the decree under appeal involves some claim to a question respecting property of that value. The affidavit filed by the Defendant-Respondent shows that the market value of the land both at the time of the institution of the suit on March 6, 1965, and also at the time of the institution of the appeal on March 6, 1969, was and is not more than Rs. 150. There is no denial of that averment. Accordingly, it is clear that the second appeal cannot be referred to paragraph 32(1)(a)(ii) of the Himachal Pradesh (Courts) Order, and, must therefore be held not to be maintainable.

The appeal is accordingly dismissed with costs.