1. ' This Second Appeal is directed against the judgment and decree passed by the learned IIIrd Additional District Judge, Hyderabad. The appellants predecessor-in-interest filed a suit for possession and recovery of Rs, 5,200 on the allegation that he is the owner of the garden land bearing Survey Nos. 37, 58, 59, 60, 229, 280 and 341 in Deh Ghangro in the urdan area of Hyderabad measuring 16 Acres 5 Ghuntas alongwith residential bungalow, summer house, stable, tank, electric motor and about 100 mango trees. It was pleaded that this property was leased out to respondent for a period of three years at a rent/lease money of Rs, 125 p. m. According to this lease which was oral, the appellant was to pay land revenue, water rate and electric charges. This lease was extended twice and was to expire in 1966. As the respondent did not pay rent regularly, the appellant's father served notice from time to time, but he failed to pay the lease money. He, therefore, filed a suit against the respondent. During the pendency of the suit he died and the appellants are his legal heirs. The respondent filed the written statement and denied that the lease was granted to them. It was pleaded by him that he was inducted as Hari on equal share basis which he paid to the appellant in the shape of a fixed amount of Rs, 100 p. m. In lieu of his share which was accepted by the attorney of the appellants. It was denied that he had not made regular payment. It was also pleaded that the suit was not maintainable and the jurisdiction of the Court was barred. The learned trial Court after hearing the parties decreed the suit but in appeal the learned IIIrd Additional District Judge set it aside.
2. ' I have heard Mr. Abdul Aziz Khan for the appellants and Mr. Imam Ali Kazi for the respondent. The learned counsel for the appellants has contended that the first appellate Court has misread the evidence and has misinterpreted the documents on record. It has been contended that the respondent was a lessee who failed to pay the rent and further as the lease had expired, he was liable to be ejected. In this regard reference has been made to documents namely Exhs. 44/3, 44/4, 44/5, 44/6, 44/7, 44/8 and 85 and also the evidence of the parties. It is an admitted position that no lease deed was excited between the parties. Their relationship was regulated by oral agreement and in order to determine, whether the respondent was a lessee or a Hari, it is necessary to examine the correspondence between the parties. The respondent had written a letter on 22-12- 1958, Exh. 44/6 in which he had referred to a letter in English' addressed to him by the attorney of the appellants father. He had stated that he used to pay rent at the end of the crop and that the amout due will be paid before the end of the year. Thereafter on 5-12-1959 the respondent through his Advocate replied to the appellant's Advocate's notice. It is Exh.
85. It has been stated that the respondent has been appellants "tenant on yearly rental of Rs, 1,500 and not Rs, 150 p. m. As shown in the notice. Besides that he has been regularly paying the lease money. "The appellants by letters dated 28-2-1961 (Exh. 44/5) and 21-10-1965 (Exh. 44/3) asked the respondent to clear the arrears of rent and threatened legal action. It seems that the respondent sent a bank draft of Rs, 800, dated 8-2-1967 whereupon the appellants Advocate by letter, dated 10-2-1967 (Exh. 44/9) replied that the appellants have already filed a suit for ejectment and recovery of lease money. It was also specifically stated the lease period had expired before the filing of the suit in March, 1966 and thereafter the lease was not renewed. He further suggested that without prejudice to the suit the appellants were prepared to adjust it towards arrears of lease money. This letter was replied by respondents Advocate (Exh. 44/8) as follows :- "(1) That it has already been denied that any dues towards arrears of lease money whatsoever are outstanding against my client.
(2) That Rs, 800 remitted to you by draft are to be adjusted towards the lease money for the year 1966-67 which runs from 1st April, 1966 to 31 March, 1967.
(3) That as there are no arrears of lease money against my client the question of adjusting it towards the arrears does not arise."
3. ' The appellant's counsel by his letter, dated 12-5-1967 Exh. 44/7 returned the draft. This is the entire correspondence exchanged between the parties from which the relationship between them is clearly reflected. The learned Civil Judge concluded that in this correspondence nowhere the respondent has stated that he is a Hari. On the other hand the learned District Judge has held that by writing letter in English to the respondent who is illiterate the appellant has hoodwinked him to use the word `rent' in Exh. 44/6. This conclusion on the face of it seems to be incorrect. Firstly, the letter written in English has not been produced and is cannot be assessed in what manner it was couched. Secondly, at no stage the respondent made this allegation against the appellants although thereafter so many letters were exchanged between the parties through their Advocates.
4. In any event if for argument sake it is accepted that the respondent was mislead by the letter of the appellant, in subsequent letters which have written by the Advocate for the respondents, it has not been stated that he was a Hari. In fact in all the letters written by the Advocates it has been stated that the lease money has been paid. The words `lease money" has been used in all the letters. Even Exh. 85 which is in reply to the notice of the appellant, it was stated that the respondent hasten the tenant on yearly rental of Rs, 1,500 and not. Rs, 100 p. m. When the dispute had been raging between the parties his Advocate by xh. 44/8 denied that 'any dues towards arrears of lease money are out-standing'. He further stated that Rs, 800 remitted to the appellant by draft were "to be adjusted towards the lease money for year 1966-67".
5. ' This clearly shows that upto the time of filing the suit the respondent was not claiming that he is a Hari, but was all the time maintaining that he is a lessee. The. Plea of being a Hari was set up for the first time in the written statement. The documents referred above, therefore, prove that he was a lessee and not a Hari. In the face of the documents it is not possible to believe the oral testimony of the respondent.
6. ' Mr. Abdul Aziz Khan, the learned counsel for the appellant has contended that as the property in dispute did not constitue 'land' as defined by Sind Tenancy Act its provision will not apply to the present case.
7. ' Mr. Imam Ali Kazi, the learned counsel has contended that as the respondent had been cultivating the land as is borne out from the revenue record, the property was land and the civil Court has no jurisdiction. `Land' has been defined in the Sind Tenancy Act, 1950 as follows :- " 'Land' means land which is held for agricultural purpose or for purpose subservient to agriculture or for pasture and includes Jagir and surveyed land but does not include trees or buildings and other structures by the landlord."
8. ' From the evidence it is established that area of the property is about 16 acres. The respondent has admitted in the cross-examination that there is a bungalow and a summer house. There are cemented structure in the garden and 100 trees of mangoes which have been planted. The area of about six Acres is covered by roads and drain. The garden is spread over Survey Nos. 279, 341, 280 and 58. Even on the bungalow property tax was paid and agricultural assessment was made for the garden. The cultivation is only of seasonal in nature which is merely fodder crop and vegetable but they are not . Essentially the main crop for converting the property into a land as contemplated by the above definition. Admittedly there construction, structures and garden on the land which do not fall within the definition of land, and therefore, the provisions of Tenancy Act will not apply and the jurisdiction of the civil Court is not barred. For these reasons the appeal is allowed.