P.D. Desai, C.J.

1. This appeal instituted on the strength of a certificate granted under Clause 10 of the Letters Patent is preferred by the State of Himachal Pradesh against the decision dated August 20, 1970 rendered in M.S.A. No. 52 of 1968.

2. The Appellant was the Respondent and the Respondent was the Appellant in the second appeal. The second appeal was directed against the decision rendered on September 3, 1968 by the District Judge, Mahasu and Kinnaur Districts, in an appeal instituted under Section 104 read with Section 12 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter referred to as "the Act"). The said appeal (C.M.A. No. 22-M/14 of 1968), which was dismissed by the learned District Judge, was directed against an order of the Compensation Officer, Mahasu District, passed on December 28,1967 in a proceeding under Section 11 of the Act (Case No. 68/66) refusing to grant proprietary rights to the Respondent in respect of the suit land.

3. The Respondent had preferred an application before the Compensation Officer under Section 11 of the Act on June 27, 1966 claiming to have become entitled to acquire, on payment of compensation, the right, title and interest of the Appellant in the suit land comprising Khata/Khatauni No. 11/16 Khasra Nos. 10 to 19, totally admeasuring 32 bighas 7 biswas, situate in village Chharabra, Tehsil Kasu mpti, District Mahasu. The claim advanced by the Respondent was based on the plea that she held the suit land as a tenant under the Appellant. Upon service of the notice of the proceeding, the Appellant appeared before the Compensation Officer through the Sadar Kanungo of the o ice of the Collector Mahasu district, who filed objections on behalf of the Appellant. The Compensation Officer framed the following four issues:

(1) Whether there is no relationship of landowner and tenant between the parties

(2) Whether the land applied for does not fall with in the definition of land because of existence of trees thereon

(3) Whether the area of the land applied for under ABADT does not fall within the definition of land

(4) Relief.

4. The Compensation Officer found that there existed no relationship of landowner and tenant between the parties and that the whole of the suit land was not covered by the definition of the term "land" given in Section 2(5) of the Act. In view of those findings, the application was rejected.

5. Feeling aggrieved by the order afore the Respondent preferred an appeal in the Court of the District Judge. The appellate court allowed the Respondent to produce three documents of title, Ex. A-1 to Ex. A-3. On the basis of the evidence on record, the learned District Judge found that there was no doubt as regards the title of the Respondent and that the only question which remained to be determined was whether the suit property was "land" within the meaning of the Act. On the said issue, the learned District Judge concurred in the finding of the Compensation Officer and held that the suit land was not "land" within the meaning of Section 2(5) of the Act. The appeal was, therefore, dismissed.

6. Against the said decision, the Respondent preferred a second appeal which was heard and decided by a learned single Judge of the Delhi High Court (T.V.R. Tatachari, J.) which then exercised jurisdiction over the area which is now comprised in the State of Himachal Pradesh. The learned single Judge found that the Respondent was a tenant who held the suit land under the Appellant. The learned single Judge then proceeded to consider the question whether the suit land was covered by the definition of the term "land" occurring in Section 2(5) of the Act. Each piece or parcel of land comprising the suit land and having a distinct khasra number was taken up for consideration separately and the nature and character of the land as well as its actual user were examined in light of the entries in the Jamabandi (Ex. PA) for the year 1964-65. The ultimate finding on the issue was recorded by the learned single Judge in the following words:

The above discussion shows that the Appellant has been residing in a house situate on Khasra No. 13. There is an orchard on Khasra No. 16, and Khasra No. 10 is mostly a ghasni. Both Khasra Nos. 10 and 16 are lands occupied by the Appellant for agricultural purposes. The Appellant lives in the house on kha No. 13, and Khasra No. 13 is situate outside the village Chharabara. Khasra No. 13 is, therefore, a site of building within the meaning of Clause (a) of Section 2(5), and is land within the meaning of the Act. The other Khasra numbers on which there are structures or roads, are for the use of the Appellant in connection with her enjoyment of the orchard and. the ghasnies. It follows that all the Khasra Nos. 10 to 19 with the exception of 19/1 are lands within the meaning of the Act, and the Appellant is entitled to acquire, on payment of compensation, the right, title and interest of the Government of Himachal Pradesh in the land comprised in Khasra Nos. 10 to 19 excluding khasra No. 19/1.

In light of the above findings, the learned single Judge allowed the appeal and set-aside the decision of the learned District Judge as well as that of the Compensation Officer and remanded the matter to the Compensation Officer with a direction to readmit the case on his file and to determine the compensation payable by the Respondent to the Appellant for (Desai, C.J. and Gupta, J.) the acquisition of the right, title and interest of the Appellant in the suit land (excluding Khasra No. 19/1) and to transfer such right, title and interest to the Respondent on her paying the compensation as determined by the Compensation Officer.

7. At the hearing of the appeal, the learned Advocate-General submitted that the claim of the Respondent with regard to the acquisition of proprietary rights in the suit land under Section 11 of the Act was wholly unfounded for two reasons; first, the Respondent could not be regarded as having acquired a valid title to the suit property from her predecessor-in-interest since the transfer of the tenancy rights in her favour was in violation of the provisions of Section 68 of the Act and, secondly, the suit land is not "land" within the meaning of Section 2(5) of the Act.

8. So far as the first submission is concerned, it would be necessary to set-out a few undisputed or undisputable facts in order to consider whether at the present stage of the proceeding the Appellant could be allowed to urge the ground.

9. The suit land was originally owned by the State of Koti. One Sir Edward Buck actually held the suit land as a tenant under the State. On August 11, 1936, Sir Edward Buck executed a gift deed (Ex. A-2) in respect of suit land in favour of his daughter Mrs. Lorna Thomson. The gift deed described the Suit property as the Estate known as "The Bower" consisting of some 33-3/4 bighas. On the same day, that is, on August 11, 1936, the Rana of Koti State granted a Patta (Ex. A-3) in favour of Mrs. Lorna Thomson covering the suit land. Under the terms of the Patta, Mrs. Lorna Thomson was to pay to the Koti State a certain sum annually as ground rent; she was injuncted from disposing of the suit land in any manner without informing the Koti Darbar and, in the event of sale, the Darbar was to have a right of pre-emption exercisable within a period of two months; in the event of sale, the ground rent was also liable to be raised to a sum specified; and lastly, the State was given the liberty to eject the lessees without paying any compensation whatsoever if the lessee failed to comply with any or all of the conditions set-out in the Patta. Mrs. Lorna Thomson transferred her interest in the suit property to the Respondent under a conveyance, Ex. A-1, executed on December 9, 1955. The conveyance referred to the suit property as "The Bower" and described it as consisting of land and buildings or as "The Bower Estate".

10. On the strength of these documents, the learned District Judge as well as the learned single Judge have both found that the status of the Respondent as a tenant of the suit property was duly established. Be it stated that at no stage of the proceeding the interest of the Respondent in the suit property has been questioned by and on behalf of the Appellant on the ground that the transfer made in her favour by virtue of the conveyance, Ex. A-1, dated December 9, 1955 was hit by the provisions of Section 68 of the Act which provide that any transfer of interest of a tenant except as permitted by the proviso to Clause (c) of Sub-section (1) of Section 54 shall be void. There is no such plea nor there is any evidence in support of such plea, although an issue as regards there being no relationship of landowner and tenant between the parties was raised and relevant evidence could have been led under the said issue to sustain the plea. Even when the conveyance, Ex. A-1, was produced at the appellate stage, no attempt to challenge the acquisition of interest by the Respondent as tenant of the suit land was made and no opportunity to lead rebuttal evidence was sought. Indeed, no submission in this connection is shown to have been made on behalf of the Appellant either at the first or at the second appellate stage. The courts were not called upon to consider and record any finding on the validity or otherwise of the transfer on such ground. For the first time, at the stage of the Letters Patent Appeal, the Appellant has sought to raise the plea and challenge the title of the Respondent to the suit land on the strength of the provisions of Section 68 of the Act.

11. In Gurcharan Singh v. Kamla Singh and Ors. : AIR. 1977 SC 5, it is held that "a pure question of law going to the root of the case and based on undisputed or proven facts could be raised even before the Court of last resort, provided the opposite side was not taken by surprise or otherwise unfairly prejudiced". The Supreme Court, in this connection, cited with approval the following passage from the decision of Lord Watson in Connecticut Fire Insurance Co. v. Kavanagh 1892 A.C. 473:

When a question of law is raised for the first time in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interest of justice to entertain the plea. The expediency of adopting that course may be doubted when the plea cannot be disposed of without deciding nice questions of fact in considering which the Court of ultimate review is placed in a much less advantageous position than the courts below. But their Lordships have no hesitation in holding that the course ought not in any case to be followed unless the court is satisfied that the evidence upon which they are asked to decide establishes beyond doubt that the facts if fully investigated would have supported the new plea.

The question whether it is permissible to the Appellant to raise the challenge to the title of the Respondent over the suit property on the ground above mentioned requires determination against the aforesaid background.

12. Now, a few of the facts bearing on the determination of the challenge can be regarded as being beyond the pale of controversy. The Act was passed on. June 17, 1953 and received the assent of the President of India on November 23, 1954 and came into force on and with effect from January 26, 1955. Section 68 of the Act, which relates to irregular transfer of the right of tenancy, reads as follows:

68. Any transfer of the interest of a tenant except as permitted by the proviso to Clause (c) of Sub-section (1) of Section 54 shall be void.

It is not in dispute that the proviso to Clause (c) of Sub-section (1) of Section 54 is not attracted in the present case. It is also not in dispute that Mrs. Lorna Thomson held the land as a tenant under the Appellant and that she transferred her right, title and interest in the land in favour of the Respondent on December 9, 1955, that is, after the Act was brought into force. On these undisputed facts, the Appellant urges that the provisions of Section 68 of the Act are attracted and that the transfer in favour of the Respondent is void. If the ground sought to be urged on behalf of the Appellant was to rest for its decision merely on the proof of the aforesaid facts, the principle laid down in Gurcharan Singhs case might have been attracted and the Appellant could have possibly urged that the point should be allowed to be raised and that we should record our finding on the issue and decide the appeal in its favour. The difficulty in the way of the Appellant, however, is that the determination of the issue does not appear to depend merely on the proof of the aforesaid facts as would be apparent from what follows.

13. As earlier pointed out, the application for the acquisition of proprietary rights under Section 11 of the Act was made by the Respondent on June 27, 1966. A period of more than a decade had thus elapsed between the date of the transfer of the tenancy rights in respect of the suit property in favour of the Respondent and the making of an application by her under Section 11 of the Act for the acquisition of proprietary rights. In the absence of any positive evidence to show that during this long interval of a decade and more, the Appellant had not accepted the Respondent as a tenant of the suit land, it would not be possible to dispose of the plea. The evidence upon which we are asked to decide this issue does not indicate be yond doubt that if the point had been raised and facts had been investigated at the proper stage, this new plea would have succeeded. On the contrary, whatever evidence is available on record points in the other direction. In this connection, it is pertinent to refer to the entries in the relevant columns in the Jamabandi for the year 1964-65 (Ex. PA), which is the record-of-rights maintained by the State itself, because those entries appear to point in the direction of the possibility of the Respondent having been accepted as a tenant by the app The entries in the relevant columns of the Jamabandi show that the "Provincial Government of Himachal Pradesh" was the owner of the land and that the Respondent held the land as a tenant under a Patta. In the column dealing with rent, the entry is in the following terms:

Total Chakota payable for whole year Rs. 141.87 P. as under Law. Rent under Section 39 of the Big Landed Estates and Land Reforms Act, 1954 is fixed at 1/4th of the produce.

In the remarks column the following entry finds place in red ink:

By order of learned Collector vide letter No. 2603 dated 24-7-1963.

These entries would show that the Respondent was holding the suit land as a tenant under the State Government and that even after the enactment of the Act rent was fixed at 1/4th of the produce. Under Section 45 of the Himachal Pradesh Land Revenue Act, 1953, an entry made in the record-of-rights in accordance with the law for the time being in force, or a periodical record in accordance with the pro visions of Chapter-IV of the said Act and the rules thereunder, is to be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor. Under the circumstances, a presumption of truth would attach to the entries made in the Jamabandi which must be regarded as having been prepared in accordance with law. In the absence of any evidence to the contrary, it would not be unreasonable to proceed on the assumption that after the transfer of the suit land in favour of the Respondent, she was accepted as a cultivating tenant by the Appellant and the Appellant was recovering rent from her. Even if such a presumption is not made, against the aforesaid background, the issue sought to be raised for our determination for the first time at this stage of the proceedings cannot be regarded as a pure question of law capable of being resolved on admitted or proved facts. The question requires, in the first instance, determination of nice questions of fact which cannot possibly be decided fairly on the evidence existing on the record of the case. To permit the Appellant to raise the question for our determination at this stage would take the Respondent by surprise and otherwise unfairly prejudice her.

14. Having been faced with this difficulty, the learned Advocate-General made an oral application to permit the Appellant to lead additional evidence. The application has been rejected by us, firstly, because there is no specific plea reflecting the point in controversy between the parties and under such circumstances it would not be ordinarily permissible to permit a party to lead evidence and, secondly, because no case for the admission of such additional evidence in accordance with law has been made out.

15. For the foregoing reasons, we have not permitted the learned Advocate-General to raise this point de novo at the stage of the Letters Patent Appeal.

16. The determination of the question whether the suit land falls within the ambit of the term "land" as defined in Section 2(5) of the Act depends for its determination upon the true construction of the relevant provision. The word is defined in Section 2(5) 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 for agricultural purposes or for purposes subservient to agriculture, or for pasture, and includes-

(a) the sites of buildings and other structures on such land,

(b) orchards,

(c) ghasnis.

17. Before proceeding to consider the question of construction, it would be advantageous to notice two decisions of this Court in one of which the definition in question, and, in the other, a definition in pari materia found in an analogous statute, have received judicial interpretation.

18. In Rajkumar Rajinder Singh v. State of Himachal Pradesh and Ors. ILR (1973) HP 469, the question before D.B. Lal, J., sitting singly, was whether land classified as "banjar qudim", "abadi", "kohlu", "gharat" and "gair mumkin" is covered by the definition of the term "land" contained in Section 2(5) of the Act. The following observations made at page 478 of the report have a bearing upon the interpretation of the definition clause and they are accordingly extracted:

It is evident from the above noted definition that the land which is occupied or has been let for agricultural purpose or purposes subservient to agriculture and is not situate in a town or village would ordinarily be land. Besides this, the definition en larges its scope by including in it pastures, sites of buildings and other structures on such land, orchards and ghasnis.

The learned Judge found that since in the definition of "land", pastures and ghasnis have been included, most of the areas of banjar qudim, which contain grass which is fodder for cattle, would be prima fade "land". As regards the other categories of land such as "Abadi", "Gharat" and "Kohlu", the learned Judge found that if structures had existed on the sites, which were occupied or let for agricultural purpose or for purposes subservient to agriculture, they would not be land by themselves but the sites on which those structures existed would be land as defined in the Act.

19. In Gram Panchayat Khunyara etc. v. State of Himachal Pradesh etc. ILR (1978) HP 225, the question before a Division Bench of this Court was whether the provisions of the Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974 (hereinafter referred to as the "Common Lands Act") applied to certain types of land such as "quarry lands", "mines", "forests", "temples", "orchards", "gair-mumkin lands" etc. The precise issue was whether these types of land were covered by the definition of the term "land" to be found in Section 2(h) of the Common Lands Act. Section 2(h) does not define the said word but adopts the definition of the said term as given in the Himachal Pradesh Ceiling on Land Holdings Act, 1972 (hereinafter referred to as "the Ceiling Act"). The definition in Section 3(f) of the Ceiling Acts substantially in pari materia with the definition of the word "land" as contained in Section 2(5) of the Act. The only distinction is that in the inclusive part of the definition of the word "land" in Section 3(f) of the Ceiling Act, two more categories of land, namely, "banjar land" and "private forests" are included. In that context, the Division Bench has made the following pertinent observations while considering the true scope and ambit of Section 3(f) of the Ceiling Act:

This definition shows that it consists of two parts. The first part contemplates those parcels of land which are occupied or have been let for agricultural purposes or for purposes subservient to agriculture or for pasture. The second part consists of five clauses of inclusion, out of which first is with regard to sites of buildings other than structure on "such land". The expression such land clearly connotes the land referred to in the first part of the definition, namely, the land which is occupied or has been let for agricultural purpose or for purposes to agriculture or for pasture. It follows, therefore, that sites of buildings and other structures would be falling within the definition of the word land provided they are in the land described as occupied or has been let for agricultural purpose or for purposes subservient to agriculture or for pasture. In other words, sites of buildings and structures wherever found would not fall within the first category of inclusive clause. They would nonetheless fall within that category if they are found in the lands occupied or let for agricultural purpose or for purposes subservient to it or for, pasture. Other items of the inclusive clause, namely, orchards, ghasni, banjar land and private forest are not governed by any qualification....

The first part has a special reference to those lands which are occupied or have been let for agricultural purpose or for purposes subservient to agriculture or for pasture. This pan of the definition excludes from its operation the site of any building in a town or village. But it covers within its ambit those lands which are occupied or let for agricultural purposes or for purposes subservient to agriculture or for pascure....

So far as the second part is concerned, it contains five items which are included within the main de finition clause.

One of the contentions advanced before the Division Bench was that land answering the description in the inclusive clause should also satisfy the requirement of the main de finition clause which contemplates occupation or letting for agricultural purpose or for purposes subservient to agriculture. In other words, the contention was that land covered by the inclusive clause, such as "orchards", "ghasni", "banjar land" and "private forests", would constitute "land" within the meaning of the Act, only if it was occupied or let for agricultural purpose or for purpose subservient to agriculture or for pasture. While rejecting the submission, the Division Bench observed:

If the contention of the learned advocates of the Petitioners in this regard is accepted, it would amount to reading some more words which are not found in the definition clause. As a matter of fact, such a reading would go against the accepted norms of interpretation. When certain items are put in the definition clause as being included in the main definition, the normal presumption would be that they were so included because the Legislature wanted to get rid of the contention that the main definition clause would not otherwise include these items within its ambit....

In view of this it is not possible to restrict the ordinary meaning of the word include which is used in the above quoted definition of the word land given in Section 3 of the Ceiling Act. Apart from the fact that the expressions orchard, banjar land and private forest are statutorily defined in the different clauses of the Ceiling Act, we are of the opinion that even if these statutory definitions were not given, these words could not have carried any meaning more than what could be attributed to them in ordinary parlance. In other words, words of restriction or qualification which are sought to be applied to these items of the inclusive part of the definition cannot be read along with these words....

Now, looking to the main definition of the word land given in Clause (f) of Section 3 of the Ceiling Act, it is apparent that, but for the inclusive items, the word land would have meant only that land which was occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture. In ordinary course, this would have created doubt whether orchards, ghasnis, banjar lands and private forests would fall within this definifion. Since the Legislature, however, wanted to remove any d it provided for the inclusive clause by virtue of which these four items, namely, orchards, ghasni, banjar land and private forest were included in the definition clause....

So far as the definition of land found in the cases before us is concerned, it is very clear and admits of no other interpretation except that the different items mentioned in the inclusive clause are independent of each other and do not carry with them the qualifications mentioned in the main clause of the definition.

In the aforesaid view of the matter, the Division Bench rejected the interpretation canvassed, namely, the inclusive clause is controlled by the main part of the definition.

20. Be it stated that though the last paragraph in the extracted portion of the decision is widely worded and that cursorily read in isolation it might leave an impression that all the different types of land covered by the inclusive clause a not required to satisfy the conditions mentioned in the main clause of the definition, a closer reading of the entire extracted portion would show that the relevant observations are to be read as confined to the categories of land other than. that covered by Clause (a), that is, "the sites of buildings and other structures on such land". As the Division Bench has earlier pointed out, in view of the expression "such land" occurring in the said clause, the sites of buildings and other structures would be coveted by the definition of the word "land" provided those sites and structures are situate in 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 purpose or for purposes subservient thereto or for pasture. En other words, the sites of buildings and other structures, before they qualify as "land" within the meaning of the inclusive clause, will have to satisfy the requirement of the main clause because of the use of the expression "on such land" which governs the preceding words "the sites of buildings and other structures" and brings into the inclusive clause the conditions laid down in the main clause.

21. These two decisions, in our opinion, which have a direct bearing on the statutory construction, have correctly apprehended the true scope and meaning of the expression "land" as defined. In order to be covered by the main part of the definition contained in Section 2(5), "land" must satisfy two conditions: first, it must not have been occupied as the site of any building in a town or village and, secondly, it must have been occupied or let for agricultural purposes, or for purposes subservient to agriculture, or for pasture. By virtue of the inclusive part of the definition, however, sites of buildings and other structures, which are not situate in a town or village but form part of the "land" which is occupied or has been let for agricultural purposes, or for purposes subservient to agriculture, or for pasture, would constitute "land" within the meaning of the Act. So far as orchards and ghasnis are concerned, they would be "land" within the meaning of the Act, whether or not they satisfy the conditions prescribed in the main part of the definition. The question whether the suit land is "land" within the meaning of the Act will require determination against the aforesaid background.

22. Now, as earlier pointed out, the gift deed, Ex. A-2, which is the oldest document concerning the suit property, describes it as "The Bower" consisting some 33-3/4 Bighas. The document does not, however, specify the purpose for which the land was held or occupied nor does it mention whether any building(s) or structure(s) stood on the land on the day on which the gift was made. But the Patta, Ex. A-3, which was executed on the same day by the Rana of Koti in favour of the donee, describes the suit property as the "Bower Estate" comprising one residential house and land admeasuring 33 Bighas 15 Biswas and speaks of its "transfer" in consideration of payment of annual ground rent. There is also a reference in the Patta to the trees standing on the suit property which were not to be cut down or removed without sanction and without payment of fair cost. The Patta again is silent about the purpose of letting and makes no mention regarding the actual user of the land on the day on which it was granted. The conveyance, Ex. A-1, in favour of the Respondent describes the suit property, at the outset, as "The Bower" consisting of land and buildings. Towards the end, the suit property is more particularly described as "consisting of land recorded in the Jamabandi of 1952-53 as possessing an area of 32 Bighas and 6 Biswas and entered in Khevat No. 10/1 min, Khatauni No. 15 min, and Khasra Nos. 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 in the said Jamabandi". The conveyance further recites that the Estate was held and possessed by the vendor "in the manner and on the tenure as she did before the creation of the new State of Himachal Pradesh". The transfer under the conveyance is stated to be of "all the right and interests" of the vendor in the said Estate together with all residential or other building, structure of what so ever and all kind standing on the said land or any part thereof and all the furniture, fittings and fixtures in or on the said Estate and all trees, plants, shrubs, pipes, drains, sewers, retaining and supporting walls, paths, roads, foot-paths, tanks, reservoirs, and all other constructions and things standing on the said land or the buildings and structures thereon or appertaining or reputed to appertain thereto .... "

The conveyance, like the other documents, does not specify the purpose for which the suit land was let or held or what was its actual user. Under these circumstances, the question whether the Suit land is "land" within the meaning of the Act has been rightly determined on the basis whether, at the relevant time, it was occupied for agricultural purposes r for purposes subservient to agriculture or for pasture.

23. From the various recitals contained in these different documents it would appear that, from time to time, the suit property was held by different persons as a composite block and that the interest therein passed from one person to another as a single unit. In other words, although the suit property was divided into several Khasra numbers, it was occupied by each successive holder as one and indivisible whole. Even in the revenue records, the suit land is shown to have been held under a single Khata/Khatauni. The suit land is thus shown to have been held by the Respondent and her predecessors under a single and indivisible tenancy. The recitals contained in different documents also disclose that one residential house and trees stood on the suit land in the year 1936. However, later on, when the Respondent acquired interest in the suit property, residential or other buildings and structures also stood thereon, besides, trees, plants, shrubs etc. The learned single Judge has observed in the course of his judgment that the Compensation Officer, who had made a local inspection of the suit land, had noticed that the suit land was a sort of an Estate having a big kothi which is surrounded by a jungle, ghasni, drakhtan (trees), lawns, small quarters on various sides interspersed with small and big paths and a small orchard. The learned single Judge has recorded a clear finding with regard to the situation of the suit land and, accordingly, the whole of the suit land is situate outside the limits of village Chharabra.

24. Against the aforesaid background we proceed to set out the material findings recorded by the learned single Judge with regard to each Khasra number con1prisin the suit land.

25 to 34....

35. The foregoing summary of the findings recorded by the learned single Judge in respect of each piece or parcel of land comprised in a separate Khasra number yields the following net result:

S. Khasra No. Area Purpose of occupation/

No. ----------- actual user

Big(s). Bis(s).

1. 10/1 0 03 Gair-mumkin compound

10/2 0 13 Ghasni

10/3 3 11 -do-

10/4 1 12 -do-

2. 11 0 04 Gair-mumkin Abadi-residence

of MaliCow-shed.

3. 12 0 03 Gair-mumkin Aba.di-Kitchen.

4. 13 0 11 Gair-mumkin Abadi---Kothi.

5. 14 1 04 Gair-mumkinAbadi-----Road.

6. 15 0 02 Gair-mumkin tank-under actual

cultivation.

7. 16 5 11 Orchard.

8. 17 0 04 Gair-mumkin Abadi-No resi-

dential building-Building site.

9. 18 0 07 Gair-mumkin Road.

10. 19/1 0 01 Gair-mumkin Tank.

19/2 18 01 Gair-mumkin Open Space-with

571 trees planted by the pre-

decessor-in interest of the

Respondent.

---------------

Total 32 07

----------------

36. The final outcome on the ascertainment of the net result reveals that different portions of the suit land, which totally admeasures 32 Bighas 7 Biswas, are put to distinct uses and/or occupied for various purposes as follows:

S.No. Area Purpose of occupation/

-------------------------- Actual use

Bigha(s) Biswa(s)

1. 5 16 (nearly 1/3 rd Ghasni

of the

5 11 suit land) Orchard

--------------------------

Total 11 07

--------------------------

2. 18 01 (more than open land with

of the planted trees.

Suit land)

3. 0 02 Land under actual

cultivation.

4. 0 18 structures-Kothi, Kitchen,

Mali quarters and

Cow-shed.)

5. 0 03 Compound.

6. 0 04 Building site.

7. 1 11 Road.

8. 0 01 Water tank.

---------------------------

Grand Total .. 32 07

---------------------------

37. Ghasni and Orchard are rightly held to fall within the definition of the term "land" because they are specifically mentioned in the inclusive clause and no other or further conditions are required to be satisfied in regard to such categories of land. Similarly, open land with standing trees planted thereon by the predecessor-in-interest of the Respondent has also been rightly held to be "land" covered by the definition because it satisfies the twin conditions laid down in the main part of the definition. The land having been not occupied as the site of any building in a town or village and having been found to have standing trees planted and raised thereon by human efforts cannot but be regarded as occupied for agricultural purposes. (See: Benoy Kumar Shahas case (supra) : AIR 1957 SC 768 . The land under actual cultivation is also correctly held as having been occupied for agricultural purposes and hence "land" within the meaning of the Act. The land with super-structures (Kothi, Kitchen, Mali quarters and Cow-shed) and the adjacent com pound have again been rightly found to fall within the inclusive part of the definition [Section 2(5)(a)], in view of the fact:

(i) that the entire suit land is not included within the limits of any town or village,

(ii) that rent/land revenue is payable in respect of the whole suit land including that portion on which the super-structures stand and the State Government is shown as owner thereof which would not be the case if the and suit land or any portion thereof was ABA DI situate in a village, and

(iii) that the portion of land on which the super structures and compound exist is surrounded by land which is occupied for agricultural purposes. The size of Kothi is a matter of no consequence because, in fact, it is found to have been used by the Respondent for her residence. The land occupied by road leading to the Kothi and to the orchard as well as to the surrounding land must apparently be regarded as having been o for agricultural purposes or for purposes subservient to agriculture and it has been rightly held so. For the self-same reasons, the portion of the suit land covered by building site has also been rightly found to be falling within the inclusive part of the definition [Section 2(5)(a)]. It would thus appear that the decision of the learned single Judge that the suit land (excepting Khasra No. 19/1 admeasuring 1 Biswa) was "land" within the meaning of the Act, is on the whole unexceptionable.

38. The question may be examined from another angle. Under Section 11(1) of the Act, a tenant is entitled to acquire "the right, title and interest of the landowner in the land of the tenancy held by him under the landowner. The right conferred by Section 11(1) of the Act is thus exercisable in respect of "the land of the tenancy" held by a tenant. The two material words "land" and "tenancy" have both been defined. The true meaning and content of the definition of the term "land" has been examined at length and the question whether the suit land comprising several Khasra numbers is "land" within the meaning of the definition has been determined on the basis of evidence pertaining to the actual user of each Khasra number on the material date. How ever, haying regard to the fact that in Section 11(1) of the Act, the word "land" occurs in conjunction with the words "of the tenancy" held by a tenant, it would be more appropriate to determine the real nature and character of the land by ascertainment of the true purpose of letting or occupation with reference to the land as a whole by treating it as a single unit. The word "tenancy" is defined in Section 2(19) of the Act to mean "a parcel of land held by a tenant of a landlord under one lease or one set of conditions". This definition clearly indicates that the land in respect of which the proprietary rights are claimable should be a piece or parcel of land held by a tenant under one lease or one set of conditions. Even if the land so held is divided into several sub-divisions (Khasra numbers) by the revenue authorities with reference to its actual user, the tenancy is not consequently split up and, in the eye of law, the tenant can not be regarded as holding each of such sub-divisions (Khasra numbers) under a separate lease or under a separate set of conditions. The contract of tenancy is a single and in divisible contract, and in the absence of any statutory pro visions to that effect, it is not open to divide it into two or more contracts. (See: Miss S. Sanyal v. Gian Chand : AIR 1968 SC 438 ). For the purpose of determining whether the tenant can claim proprietary rights in respect of the land held by him under the landowner, therefore, what has to be seen is whether such land as a whole is "land" within the meaning of the Act. In other words, what has to be seen is whether the entire piece or parcel of land held by a tenant under the landowner is covered by the definition given in Section 2(5) of the Act. In a case, therefore, where the purpose of letting is not ascertainable, but the land or a substantial part thereof is not occupied as the site of any building in a town or village and is occupied for agricultural purposes, or for purposes subservient thereto, or for pasture, or for any of the purposes set out in the inclusive part of the definition, the lan4 would be regarded as one to which the provisions of Section 11(1) of the Act are applicable. Even if a small portion of such land is found to have been used by the tenant incidently for an ancillary or even for an alien purpose, his entitlement to claim proprietary rights in respect of whole land is not thereby affected and it would not be proper or permissible to dissect the tenancy and to confine the conferment of proprietary rights to that portion of the land of the tenancy held by him which is actually used for the stated purposes and to reject the claim qua that small portion which is incidently used for ancillary or even alien purposes. Approaching the case in hand from that view point, it is manifest that a predominant or substantial portion of the suit land (29 Bighas 10 Biswas) out of 32 Bighas 7 Biswas is actually occupied for the purposes mentioned in Section 2(5). Since predominant or substantial portion of land consists of Ghasni, Orchard, open land with planted trees and land under actual cultivation, incidental or ancillary use of a small portion of such land for the purpose of residence, road, Mali quarters and Cowshed, etc. cannot defeat the claim of the Respondent to the conferment of proprietary rights in respect of whole of the suit land. The decision of the learned single Judge, there fore, is eminently correct, even if it is examined from this different angle. In fact, on the aforesaid reasoning, the Respondent ought to have been held entitled to the conferment of proprietary rights even in respect of Khasra No. 19/1 and, to that extent, the learned single Judges decision may be regarded as not being in conformity with law. There being no appeal by the Respondent, however, against that part of the decision of the learned single Judge, no relief can be granted to her on that score.

39. Be it stated that both in Rajkumar Rajinder Singhs case (supra) as well as in Gram Panchayat Khunyaras case (supra), the judgment under appeal before us was considered and cited with approval. In Rajkumar Rajinder Sing case, the judgment under appeal was approvingly referred to and read as holding that a site of a building howsoever large in size which is occupied for agricultural purposes or purposes subservient to agriculture comes within the definition of "land". In Gram Panchayat Khunyaras case, the judgment under appeal was approvingly referred to and read as holding that since orchards and ghasnis were specifically and separately mentioned in the definition as included in it, they would fall within the definition of the word "land" given in the statute. Be it stated also that the decision in Rajkumar Rajinder Singhs case was specifically approved in Grain Panchayat Khunyaras case.

40. The learned Advocate-General submitted that the subject matter of letting was the Kothi and that the surrounding land was merely an adjunct to the subject matter of the lease and that, therefore, the suit land cannot be regarded as having been let or occupied for agricultural purposes or for purposes subservient thereto, or for pasture, or as falling within the inclusive clause of the definition of the term "land". The submission cannot be accepted for the reasons already given. En the present case, as earlier pointed out, the Patta, Ex.A-3, the gift deed, Ex.A-2 and the conveyance, Ex.P-1, do not specify the purpose of letting. None of the documents contains any indication whether the tenancy was for agricultural or for non-agricultural purposes. Under such circumstances, the actual user of the land or a substantial portion thereof on the material date, that is the date of the application under Section 11, would constitute the determ ining factor. Having regard to the actual user of the suit land or a substantial portion thereof for the stated purposes, as found hereinabove, the land must be regarded as having been occupied for agricultural purposes and/or purposes subservient to agriculture and or as satisfying the requirement of the in clusive part of the definition. Under the circumstances, in our opinion, the submission made by the learned Advocate General does not merit acceptance.

41. For the foregoing reasons, in our opinion, there is no merit in this appeal and it is accordingly dismissed with no order as to costs.