A suit for recovery of money based on misrepresentation is not triable under the Agriculturists Relief Act as it does not fall within the definition of 'engagement' under Section 3 of the Act.

JASWANT SINGH, C. J.: - This reference arises out of a suit brought on the original side of this court by the respondent for recovery of Rs. 29014/- alleged to have been wrongfully obtained by the appellant herein.

2. The case of the respondent is that the appellants had no proprietary interest in 58 kanals of land comprised in survey Nos. 935 min, 493 min and 1144 min situate in Zahinpura Tehsil Uri, that during the proceedings taken for acquisition of 654 kanals and 14 marlas of land required for the Lower Jhelum Hydel project the appellants falsely represented on the basis of fictitious and fraudulent entries which they got effected in the revenue record in collusion with the concerned Patwari that the aforesaid area of 58 kanals belonged to them, that acting on that representation the Collector, Land Acquisition Officer (Flood & Irrigation) inadvertently awarded Rs. 20010/- to the appellants jointly and Rs. 9004.50 to appellant No.1 individually, that during the course of the inquiry launched on the basis of a complaint in respect of the aforesaid compensation it was revealed that the aforesaid area of 58 kanals was Shamilat and did not belong to the defendants and that acting in collusion with the concerned patwari the appellants maneuvered to obtain the aforesaid compensation which was not at all due to them.

3. While resisting the suit the appellants raised a number of pleas, preliminary and otherwise. Amongst other pleas raised by them, the appellants also contended that they being agriculturists the suit was not cognizable by the court

4. Mian Jalal-ud-Din J. to whom the suit was assigned for trial and disposal struck four preliminary issues vide his order dated Sept. 17, 1972, but it is only the following preliminary issue with which we are concerned: -

Are the defendants agriculturists and therefore the suit is triable under the provisions of the Agriculturists™ Relief Act? OPD.

5. On a consideration of the evidence adduced in the case, the learned single judge by his order dated May, 5, 1972, held that the appellants were no doubt agriculturists as conceived by the Agriculturists Relief Act (hereinafter referred to as the Act) but there being no contractual obligation on their part to pay back the compensation money and the claims sought to be enforced being found on tort, the suit did not fall within the purview of the first part of the last clause of S. 3 of the Act, as contended by the appellants. In coming to this conclusion the learned judge relied upon my judgment in Ghulam Mohd. v. Abdul Aziz, 1970 Kash LJ 5 wherein it was held that for a suit to come within the purview of the Act the claim for money must be based on a contract or a promise to pay back the money. Dissatisfied with this order, the appellants preferred a letters patent appeal which came to be heard by a Division Bench of this court consisting of Mufti Baha-ud-Din and S. Wasiuddin JJ. The learned Judges constituting the Bench differed in their opinion. Whereas S. Wasiuddin J. supporting the conclusions arrived at by Mian Jalal-ud-Din held that the suit was not of the nature which was triable under the Act, Mufti Baha-ud-Din Farooqi J. took a contrary view. The learned judge while relying upon the observations made by me in the Full Bench judgment of this court in Mohd. Abdul-lah Dar v Mohd. Akbar, 1972 Kash LJ 338 = (AIR 1973 J & K 4 (FB)) and conceding that the first part of the last clause of Section 3 of the Agriculturists™ Relief Act was meant to cover a claim arising from a contract held that an obligation resembling that created by a contract also fell within the purview of the last clause of Section 3 of the Act and that the respondents action for money based on the alleged misrepresentation of the appellants could not be held to be an action based on tort, The learned judge further held that the suit for refund was really a suit under S.70 of the Contract Act for the enforcement of an obligation resembling that created by a contract and bei

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