Honble GOYAL, J.–These two civil second appeals have been preferred by legal heirs of defendant No. 2 Ram Dev and defendant No. 1 Gopal Ram respectively against the judgment and decree dated 13.10.1999, whereby learned Additional District Judge, Khetri, district Jhunjhunu, affirmed the judgment and decree of eviction passed by Civil Judge, Jhunjhunu on 3.8.1992. Cross- objections have been filed by the plaintiff-respondent.

(2). Briefly narrated the facts are that the plaintiff Thakurji Shri Dwarkadheesji, through Manager Durga Prasad, filed a civil suit on 4.6.1960 in the court of Civil Judge, Jhunjhunu, against two defendants Gopal Ram and Ram Dev with the averments that the land measuring 16 Bighas 12 Biswas, bearing various Khasra Numbers, as mentioned in para 1 of the plaint, was given to one Dwarka Prasad an ancestor of Durga Prasad by the then Ruler of Khetri vide Patta (Ex. 34) on Mangsar Budhi 4 Samwat 1907 (Year 1850). Dwarka Prasad constructed houses, pond, two wells, temple, garden, the boundary wall and installed the idol of Shri Thakurji Dwarkadishji. This `Kund (pond) is known as `Bohra ji Wala Kund situated in abadi land of town Khetri. Subsequently, this property was donated to the idol of Thakurji by Dwarka Prasad, who himself continued to serve as `Sevak and Manager of Thakurji.

(3). The plaintiffs case is that Durga Prasads father Sheolal died on 18.1.1935 and from that date the estate of Sheolal was brought under the management of the Court of Wards and continued till 2.5.1955. It is pleaded that during the period the estate remained under the management of the Court of Wards, the land and garden were managed through paid servants who gradually destroyed the garden and started cultivation of crop in the land under the garden for which they were not entitled.

(4). The plaintiff further pleaded that after the estate was released from the management of the Court of Wards, Durga Prasad leased out the land alongwith houses in question to the defendants for a period of one year from 2.5.1955, for a consideration of Rs. 115/-, for vegetables, fruits and flowers. The original agreement of lease was placed on record which is Ex.35. The grievance of the plaintiff is that the defendants gradually converted the land of the garden into agricultural land without any right to do so. Now the plaintiff wants to put up a garden on the entire land and the kacha and pacca houses in the land are required by the plaintiff for the temple and garden. Vide notice dated 11.4.1960, the plaintiff asked the defendants to vacate the land as well as the houses. The plaintiff prayed for a decree for possession of the houses as well as the land under the garden and for mense profits at the rate of Rs. 2/- per day.

(5). Both the defendants filed separate written statements with identical pleas. They pleaded that the suit was in respect of the agricultural land and thus the civil court had no jurisdiction and it is filed beyond limitation and the lease deed being unregistered is inadmissible in evidence and the notice of ejectment was not legal and valid.

(6). On the basis of the pleadings, issues were framed. The Trial Court decided Issue No. 4 with regard to jurisdiction against the plaintiff and returned the plaint. It was held by learned Civil Judge that the land in question was agricultural land and therefore, the suit was triable by Sub Divisional Officer, Khetri. On appeal against this order, the District Judge, Jhunjhunu, vide judgment dated 18.2.1963, set-aside the order of the Civil Judge and directed first to decide the question whether the land in dispute fell within the `Abadi land of Khetri Town.

(7). After remand, the Trial Court recorded the evidence of the parties and vide its judgment dated 30.9.1966 decree the plaintiffs suit for ejectment and also granted a decree for damages for use and occupation of the property in dispute at the rate of Rs. 1/- per day from 2.5.1960 till delivery of the possession of the property to the pla

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