Badru v. Thakru — 1962 DIGILAW 217 (RAJ)

Modi, J.—This is a civil regular second appeal by the petitioners Badru and Likhma in a mutation matter and arises under circumstances presently to be mentioned. 2. Mohanram deceased was the last holder of certain agricultural land being Khasra No. 73 in village Dhani, Tehsil Taranagar. He died some time in Smt. year 2005-6 leaving him surviving his widow and three sons, Thakru, Gumana and Moonga as to which fact there is no dispute whatsoever. The petitioners Badru and Likhma, also claiming to be the sons of the deceased Mohan by his second wife, (who had married him after the death of her husband Hukma who was a brother of Mohan) moved an application on the 29th April, 1957, in Tehsil Taranagar praying that their names be recorded in the revenue record as holders of the agricultural land in question in addition to the other sons of Mohan. This application was presumably made under sec. 133 of the Rajasthan Land Revenue Act, 1956 (Act No. 15 of 1956, hereinafter called the Land Revenue Act). This was resisted by Thakru and Moonga, Gumana having died issueless before the mutation application was moved by the present appellants. The Tehsildar after having made an inquiry into the matter dismissed the petitioners application by his order dated the 30th August, 1957. The petitioner then went up in appeal to the Collector, Churu. The latter by his order dated the 30th January, 1958, allowed the appeal having held that a specific issue regarding proprietary right arose in this case, therefore, that issue should be framed and remitted for decision to a competent civil court, and, in that view of the matter, remanded the case back to the Tehsildar. In compliance with this direction the Tehsildar framed two issues, one relating to the alleged paternity of the petitioners, and the second relating to their right of inheritance as to the agricultural land held by Mohan, and sent them to the Civil Judge Churu for decision. By his order dated the 28th November, 1958, the Civil Judge held that Likhma and Badru petitioners were the sons of Mohan and they were entitled to succeed to the land of Mohan "according to their share". Thereupon the Tehsildar accepting the finding of the civil court allowed the petitioners application and ordered mutation in their favour along with the other two sons of Mohan in equal shares. Thereupon the Tehsildar accepting the finding of the civil court allowed the petitioners application and ordered mutation in their favour along with the other two sons of Mohan in equal shares. This order is dated the 18th April, 1960. Respondents Thakru and Moonga preferred an appeal from that order to the District Judge, Bikaner. The main contention raised before the learned District Judge on behalf of the respondents was that the reference made in this case by the revenue court to the civil court was entirely wrong in law, and, therefore, the civil court had no jurisdiction to decide the issues referred to it and the decision of the revenue court which was based upon the finding of the civil court was utterly contrary to law and could not possibly be sustained. This contention prevailed with the learned District Judge with the result that he came to the conclusion that the order of the Collector Churu directing the Tehsildar to refer the matter to the civil court was not in accordance with law and that the Tehsildars decision, based as it was upon the civil courts finding, was equally bad in law. Having so held, the learned District Judge allowed the appeal, set aside the order of the Tehsildar and sent the case back to him with a direction that he should further deal with it according to law. Aggrieved by this decision, the petitioners have come up in second appeal to this Court. 3. The first and the foremost question which emerges for decision in this appeal is whether a| reference for the determination of a question of proprietary right could lawfull be made in mutation proceeding to a civil court under sec. 239 of the Rajasthan Tenancy Act, 1955 (Act No. 3 of 1955, hereinafter referred to as the Tenancy Act). Sec. 239 reads as follows: — "239. Procedure when plea of proprietary right raised: — (1) If, in any suit or proceeding in a reve-nue court, a question of proprietary right in respect of land forming the subject matter of such suit or proceeding is raised and such question has not previously been determined by a civil court of competent jurisdiction, the revenue court shall frame an issue on the question of proprietary right and submit the record to the competent civil court for the decision of that issue only. Explanation I—A Plea of proprietary right which is clearly untenable and intended solely to oust the jurisdiction of the revenue court shall not be deemed to raise a question of proprietary right within the meaning of this section. Explanation II:—A question of proprietary right does not include the question whether such land is Khudkasht. (2) The civil court, after reframing the issue, if necessary, shall decide such issue only and return the record together with its finding there on to the revenue court which submitted it. (3) The revenue court shall then proceed to decide the suit accepting the finding of the civil court on the issue referred to it. (4) An appeal from a decree of a revenue court passed in a suit in which an issue involving a question of proprietary right has been decided by a civil court under sub-sec. (2) shall lie to the civil court which, having regard to the valuation of the suit, has jurisdiction to hear appeals from the court to which the issue of proprietary right had been referred. (5) A second appeal from a decree or order passed by a civil court in appeal under sub-sec. 4 shall lie to the High Court on any of the grounds mentioned in sec. 100 of the Code of Civil Procedure, 1908 (Central Act V of 1908)". 4. Broadly speaking, this section contemplates that where a question of proprietary right in respect of certain agricultural land arises in a suit or proceeding in a revenue court, then such court must not decide such a matter itself but frame an issue on the question of proprietary right and send it for decision to a competent civil court, it being understood that such question has not already been the subject-matter of a decision by a civil court of competent jurisdiction. The civil court then decides such question or questions and returns its finding to the revenue court which had remitted the question or questions to it and thereafter the revenue court must decide the whole case accepting the findings of the civil court on the points referred to and decided by it. The civil court then decides such question or questions and returns its finding to the revenue court which had remitted the question or questions to it and thereafter the revenue court must decide the whole case accepting the findings of the civil court on the points referred to and decided by it. The basic requirements of this section, therefore, are that a suit or proceeding must be pending in a revenue court, and that a question of proprietary right in respect of the subject-matter of such a suit must arise therein, and such a question has not already been decided by a civil court of competent jurisdiction. It is only when these conditions are fulfilled that a reference by a revenue court to a civil court would be competent. The question to decide, therefore, is whether these requirements are satisfied in the present case. 5. Now before I proceed to answer the question propounded above, I consider it necessary to examine the nature or character of a mutation proceeding in the light of the provisions contained in the Land Revenue Act. The relevant sections are contained in Chapter VII of the Act and are these— "133. Report of succession and transfer of possession— Every person obtaining possession by succession, transfer, or otherwise of any property or other right or interest in any land, or the profits thereof, which is required by this Act, or any rules made thereunder to be recorded in the annual registers, shall bring the fact to the notice of the village Patwari and report it to the Tehsildar of the Tehsil in which such land is situated either direct or through the village Patwari or Land Records Inspector, within three months from the date on which he obtains such possession. (2) If such person is a minor or otherwise disqualified the guardian or other person who has charge of such persons property shall make such report. 134. Fine for neglect to report.—Any person neglecting to make the report required by sec. 133 shall be liable to a fine not exceeding rupees ten. 135. Procedure on report.—(1) The Tehsildar, on receiving such report or upon the facts coming otherwise to his knowledge, shall make such inquiry as appears necessary and in undisputed cases,if the succession or transfer or other acquisition appears to have taken place, shall record the same in the annual registers. 135. Procedure on report.—(1) The Tehsildar, on receiving such report or upon the facts coming otherwise to his knowledge, shall make such inquiry as appears necessary and in undisputed cases,if the succession or transfer or other acquisition appears to have taken place, shall record the same in the annual registers. (2) If the succession or transfer or other acquisition is disputed, the Tehsildar shall, if competent under this Act or any other law for the time being in force, decide such dispute according to law and if not so competent, refer the dispute to any other officer so competent for decision. 136. Decision of dispute.—All disputes respecting the class or tenure of any tenant or regarding entries in the annual registers shall be decided in accordance with the provisions of sec.123, or sec. 125, as the case may be." 142.—Decisions to be binding on revenue courts.— Subject to the provisions of sub-sec. (3) of sec. 125 all decisions under this Chapter in cases of dispute shall be binding on all revenue courts in respect of the subject matter of the dispute unless such dispute be with regard to the rent or revenue payable by a tenant." We may as well read sec. 122 to 125 at this place— "122. Attestation of entries and decision of disputes— All undisputed entries in the record of rights shall be attested by the parties interested, and all disputes regarding such entries, whether taken up by the Land Records Officer of his own motion or upon application by any party interested shall be disposed of by him in accordance with the provisions of sec. 123, 124 and 125. 123. Determination of class of tenant.—(1) In case of any dispute regarding the class or tenure of any tenant, the Land Records Officer shall decide the dispute according to the principles laid down in the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955). (2) In the trial of disputes under this section, the Land Records Officer shall observe the procedure prescribed under this Act. 124. (2) In the trial of disputes under this section, the Land Records Officer shall observe the procedure prescribed under this Act. 124. Procedure when rent or revenue payable is disputed.—In case of any dispute regarding the rent or revenue payable the Land Records Officer shall not decide the dispute, but shall record, as payable for the year in which the record of right is framed, the rent or revenue payable for the previous year, unless it has been enhanced or abated by a decree, order or agreement under this Act or under the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955). 125, Settlement of disputes as to entries in record of rights.—(1) All other disputes regarding entries in the record of rights shall be decided on the basis of possession. (2) If in the course of inquiry into a dispute under this section the Land Records Officer is unable to satisfy himself as to which party is in possession, he shall ascertain by summary inquiry who is the person best entitled to possession and shall decide the dispute acxordingly. (3) No order as to possession passed under this section shall debar any person from establishing his right to the property in any civil or revenue court having jurisdiction." A careful survey of these provisions seems to me to establish a number of propositions which may be set out somewhat as follows:— (i) Every person obtaining possession of acquiring a right or interest in any agricultural land or the profits thereof, whether by succession or transfer or otherwise, must report such matter to the competent authority who is usually the Tehsildar. (ii) The Tehsildar then makes an inquiry and may find that the matter of mutation is either undisputed or it is disputed. (iii) There would be no trouble about undisputed cases and the Tehsildar may record the mutation himself in such cases. Where the matter is., however, contentious, he cannot decide the matter himself unless he has been authorised by law to do so. It is accepted on behalf of both parties in the present case that the Tehsildar was competent to decide the case of mutation, even though it was disputed, and reference may be made in this connection to notification No. Fl (236) Rev. It is accepted on behalf of both parties in the present case that the Tehsildar was competent to decide the case of mutation, even though it was disputed, and reference may be made in this connection to notification No. Fl (236) Rev. D/56, dated the 27th October, 1956, published in the Rajasthan Rajpatra dated the 8th November, 1956, Part IV (c) at page 64.1, which was in force at the time when the present dispute arose. It may incidentally be pointed out that by a further notification No. F. 8 (185) Rev. B/57. dated the 11th September, 1957, this power has been delegated to the village Panchayat of the village in which the land is situate. This notification is published in the Rajasthan Rajpatra dated the 3rd October, 1957, Part I (b) at page 477. (iv) All disputes regarding entries in the annual registers must be decided on the basis of possession. (v) If in the course of an inquiry into a dispute of this character, the inquiring officer is unable to satisfy himself as to which party is in possession, he must ascertain by summary inquiry who is the person best entitled to possession and shall decide the dispute accordingly. In other words, the point to note is that the entire proceeding is of a summary character. (vi) Any person aggrieved by an order as to possession in a mutation proceeding has been given freedom to establish his right to the property by a suit in any civil or revenue court having jurisdiction. (vii) Subject to what has been stated above, all decisions which may have been given in mutation proceedings under Chapter VII shall be binding on all revenue courts in respect of the subject-matter of the dispute. 6. The one point which deserves to be borne in mind throughout this discussion is that the decision of the authority dealing with mutation is not intended in law to decide questions of title to the property involved therein. This is the clear effect of sub-sec. (3) of sec. 125. 6. The one point which deserves to be borne in mind throughout this discussion is that the decision of the authority dealing with mutation is not intended in law to decide questions of title to the property involved therein. This is the clear effect of sub-sec. (3) of sec. 125. As has been pointed out in several decisions including those of their Lordships of the Privy Council, an inquiry into a mutation proceeding is more in the nature of a fiscal inquiry to ascertain which of the several claimants for the occupation of agricultural land may be put into possession so that the State revenue may not suffer, and the purpose of this summary jurisdiction is to put some person in legal possession of the land as soon as possible so that the dues of the State may be recovered from him without any difficulty and to leave the final adjudication as to rights of the parties to the competent courts of law. To borrow the forceful language of their Lordships of the Privy Council in Nirman Singh Vs. Lal Rudra Pratab (l), it would be little less than a travesty of judicial proceeding to regard the orders of mutation authorities as judicial determinations expelling proprio vigore any individual from any proprietary right or interest he claims in agricultural land. 7. It is in this setting that the question whether sec. 239 of the Tenancy Act can properly be attracted in a mutation proceeding falls to be considered. • On having given this matter my careful and anxious consideration, I have come to the conclusion that this question must be answered in the negative. Let me in the first instance deal with the reasons which seem to have prevailed with the learned Distt. Judge in this connection. The first reason given by the learned Judge is that there is no provision in the Land Revenue Act for reference to the civil court. The second reason is that sec. 259 of the said Act excludes the jurisdiction of the civil courts in respect of matters covered by the Act. 8. Now so far as the first reason is concerned, it does not seem to me, with all respect, to have much force because if the matter falls within sec. The second reason is that sec. 259 of the said Act excludes the jurisdiction of the civil courts in respect of matters covered by the Act. 8. Now so far as the first reason is concerned, it does not seem to me, with all respect, to have much force because if the matter falls within sec. 239 of the Tenancy Act, in the sense that a question of proprietary right does arise in a suit or proceeding in a revenue court, and such question has not been previously determined by a civil court of competent jurisdiction, it can hardly make any difference as to the correct forum for a proper decision of the question arising in the case that sec. 239 is a provision contained in the Tenancy Act and not in the Land Revenue Act. For once a particular matter should fall within the four walls of this Section, it will immediately be attracted into application even if the Land Revenue Act does not contain this provision. Sec. 239 finds its place in Chapter XV of the Tenancy Act which deals with the procedure and jurisdiction of the revenue courts. Then the expression revenue court has been defined in clause (35) of sec. 5 of the Tenancy Act as a court or an officer having jurisdiction to entertain suits or other proceedings relating to agricultural tenancies, profits and other matters connected with land or any right or interest in land, wherein such court or officer is required to act judicially, and does include the Board and every member thereof, a Commissioner, a Collector, a Sub-Divisional Officer, an Assistant Collector a Tehsildar or any other revenue officer while so acting. This expression has to be given the same meaning for the purposes of the Land" Revenue Act by force of clause(7) of sec. 3 of that Act which says that words and expressions defined in the Rajasthan Tenancy Act, 1955, shall, wherever used in the Land Revenue Act be construed to have the meanings assigned to them by the former Act. The reason, therefore, whether sec. 239 is attracted into application or not in a mutation proceeding under the Land Revenue Act must be sought elsewhere. 9. Then as regards the second reason which prevailed with the learned Judge it is true that sec. The reason, therefore, whether sec. 239 is attracted into application or not in a mutation proceeding under the Land Revenue Act must be sought elsewhere. 9. Then as regards the second reason which prevailed with the learned Judge it is true that sec. 259 of the Land Revenue Act bars the jurisdiction of the civil courts with respect to any matter arising under or provided for by the Act. But this provision itself contains an exception and that is that such a suit would lie where the Act itself makes a provision for it. And, as I have-pointed out above, sec. 125(3) clearly provides that no order as to possession passed under sec. 125 shall debar any person from establishing his right or title to the subject matter of dispute in any civil or revenue court having jurisdiction. It may also be pointed out that, so for as this section is concerned, it does not say anything as to whether a reference by a revenue court could or could not be made to civil court under particular circumstances. The position therefore to which we come is that the reasons which prevailed with the learned District Judge in coming to the conclusion to which he did are not valid or cogent ones. 10. This, however, does not conclude the decision of the question before me, and there are other reasons, which in my considered opinion, are far more weighty, and which clinch the decision of this issue against the appellants petitioners. 11. In the first place, I am extremely doubtful whether a proceeding of this character can be said to lie within the cognizance of a "revenue court" as such. It seems to me that it would be perhaps far more to the point to say that a matter like this falls within the cognizance of a revenue court. Learned counsel for the appellants petitioners has drawn my attention in this connection to the definition of the expression judicial matter in sub-sec.(2) of sec. 23 of the Land Revenue Act which runs as follow: — . Learned counsel for the appellants petitioners has drawn my attention in this connection to the definition of the expression judicial matter in sub-sec.(2) of sec. 23 of the Land Revenue Act which runs as follow: — . "The expression judicial matter means a proceeding in which a revenue court or officer has to determine the rights and liabilities of the parties thereto and the proceedings and orders as well as appeals, revisions and references in the cases specified in the First Schedule shall be deemed to be judicial matters for the purposes of this Act " Turning next to the First Schedule of the Act, a mutation proceeding upon succession, transfer or otherwise has been mentioned as item No. 7 therein as a judicial matter. Unfortunately, the Act does not attempt any clear-cut classification of the duties or powers of a revenue court as contradistinguished from those of a revenue officer. But it seems to me that even though a matter like this is called a judicial matter for certain purposes of the Act, it is difficult to accept this as a proceeding judicially determining the rights of the parties with respect to the title of the land in dispute. For, such a conclusion would be entirely contrary to the basic and fundamental conception underlying a mutation proceeding,the nature of which I have discussed above. And that being so, I find it extermely difficult to accept that the Tehsildar or for that matter any other authority deciding a matter of mutation really acts as a revenue court within the meaning of sec. 239 of the Tenancy Act. 12. There is yet another difficulty in the way of the applicability of this section to a proceeding of this nature, and that is whether it involves a question of proprietary right at all. A Khatedar, after, all is said and done, is a tenant, sec. 14 of the Tenancy Act may be referred to in this connection and it gives a classification of the various kinds of tenants, and a Khatedar tenant is one of them as indeed a Ghair Khatedar tenant is another category mentioned in that connection. 13. In Chimna Vs. The Board of Revenue(2) it was held approving the decision of the Board of Revenue that sec. 36 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 (Act No. 1 of 1951) of which sec. 13. In Chimna Vs. The Board of Revenue(2) it was held approving the decision of the Board of Revenue that sec. 36 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 (Act No. 1 of 1951) of which sec. 239 of the Tenancy Act is almost an identical counter-part has no application to a case of Bapidari tenancy as it is not the same thing as proprietary right. 14. This case was followed in a subsequent bench decision of this Court in Bheru Lal Vs. Todu and others decided on the 21st November, 1956, and the view was affirmed that where the dispute between the parties was whether the plaintiff was a Bapidar of certain land or the defendant was the Bapidar, it could not be said that there was an issue of proprietary right arising between them. 15. The same view has been reaffirmed by another bench decision in Chha-gan Lal Vs. Sukh Lal(3) to which I was a party. 16. It is correct that almost all of these decisions pertained to a Bapidari right, but the position, to my mind, is the same in principle where a Khatedari right is in question as it is in the present case. 17. In this state of the decisions of our Court, I am far from satisfied that it can be postulated of a case like the present that the question of proprietary right at all arose here. 18. There is a still further reason, in my judgment, which goes to the very root of the controversy, and that is this. Let us assume that it is possible for, nay, incumbent on, a revenue court to refer a question of proprietary light arising in a mutation proceeding to a civil court under sec. 239 of the Tenancy Act. The civil court then decides this issue and sends the case back to the revenue court where after the latter court must accept the finding of the civil court and decide the proceeding as a whole. This decision would of course be subject to certain appeals which have been provided in sec.239 itself. 239 of the Tenancy Act. The civil court then decides this issue and sends the case back to the revenue court where after the latter court must accept the finding of the civil court and decide the proceeding as a whole. This decision would of course be subject to certain appeals which have been provided in sec.239 itself. Quite obviously, a decision so arrived at will bind, and be conclusive between, the parties, particularly as appeals in such matters are made to lie first to a civil court having jurisdiction to hear appeals from the court to which the issue of proprietary right may have been referred, and a second appeal lies to the High Court. And yet, the Land Revenue Act itself provides that a further suit would lie in such a case under sec. 125(3) which I have already set out above. The provision is clear and cannot be possibly disregarded. Again, this would be a suit to determine the right or title of a party to the land in dispute. 19. A serious situation thus arises as to the purpose and utility of this second suit. The possibility of a conflict of decision between such a duplicate set of proceedings cannot be entirely lost sight of. The question is, can it be reasonably accepted that the same matter is intended or required to be fought out in two different proceedings with the inevitable complications which are inherent in a procedure like that ? A still more serious question does arise namely whether a second suit can be maintained at all on the rule of res judicata. If not, has the statute made a futile provision under sec. 125(3) ? The more I think over this aspect of the matter, the more firmly do I feel persuaded to hold that this could not possibly have been the intention of Legislature. That in my view, completely negatives the view that sec. 239 was at all intended to be attracted in the decision of a mutation proceeding. I should like to emphasize even at the risk of some repetition that it is not the object of mutation proceeding to decide questions of title or a question of what might be called a proprietary right within the meaning of sec. 239. 239 was at all intended to be attracted in the decision of a mutation proceeding. I should like to emphasize even at the risk of some repetition that it is not the object of mutation proceeding to decide questions of title or a question of what might be called a proprietary right within the meaning of sec. 239. The object of such a proceeding, on the other hand, is to put some person in possession of the subject-matter of dispute after a summary inquiry, without going into intricate questions of personal law or otherwise, and on the basis of possession, and where the authority concerned has a dispute raised before him in that connection, all that he has to see is "who is the person best entitled to possession" and then put such person into possession, and leave any party aggrieved by such an order free to have his right or title determined in a competent court of law by a regular suit. This last remedy would be entirely uncalled for if the machinery provided by sec. 239 could be legitimately pressed into service in such 20. For the foregoing reasons, I have firmly come to the conclusion that in a mutation proceeding, sec. 239 of Tenancy Act has no relevance or application. I hold accordingly. 21. Learned counsel in the next place contends that even if I arrive at this result, the proper view to take in a case like the present where a reference had been ordered to be made by the Collector to a civil court rightly or wrongly,and the Tehsildar had so made it, and the Civil Court had further answered it, the matter must be allowed to rest where it then lay, particularly as the order of the Collector had not been appealed from and the learned District Judge had no jurisdiction to set aside the order of the Collector or for that matter of the Tehsildar himself. The contention of learned counsel is that the civil court has in such a case no jurisdiction except to deal with the reference on the merits, and he places strong reliance in support of his submission on a full bench decision of this Court in Badri Vs. Kishna(4). That was a case in which a suit for redemption of agricultural land was filed in the court of the Munsiff. Kishna(4). That was a case in which a suit for redemption of agricultural land was filed in the court of the Munsiff. The defendant denied the mortgagors title to the land as also the fact of the mortgage. The Munsiff transferred the suit to the court of the Assistant Collector on the coming into force of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, in January, 1951. The Assistant Collector dismissed the suit, but on appeal the Collector remanded it for a fresh trial. The Assistant Collector was then of the opinion that certain issues relevant in the suit related to an inquiry about the proprietary title to the land which was the subject-matter of the suit and he therefore remitted certain issues for trial to the civil court under sec. 36 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act. The Munsiff was of opinion that no question of proprietary title was involved in the suit and that the suit was triable by a revenue court and so he made a reference to this Court. We are not concerned with the actual decision which was reached in this case because that was subsequently over-ruled by the decision of the lull bench referred to above. Wanchoo C., J. who delivered the opinion of the full bench in the course of his judgment made the following observations:– "We may. in passing point out that the reference by the Munsiff in Gheesas case (ILR V, Raj. 113) was incompetent under sec. 40 of the Act, because what the Assistant Collector had done was merely to refer certain issues to him under sec. 36 of the Act for decision, and all that the munsiff had to do was to decide the issues referred to him as best as he could. He had no authority under sec. 40 to make any reference to this Court, for the Assistant Collector never raised the question of a conflict of jurisdiction between the revenue court and the civil court." And it is on this that learned counsel lays great stress for his submission that once the reference had been made by the revenue court to a civil courts the civil court was bound to answer the same and no further question as to the maintainability of the reference could possibly arise. The observations of the full bench are entitled to high respect; but I would crave indulgence to point out that they have to be read in the context in which the were made, and it would perhaps not be right to extend the meaning of those observations to contingencies which did not arise in that case or with which it was not concerned. If I might say so with all respect, it would be going very far indeed if, on the basis of an observation like that, a far reaching proposition that once a reference had been made by a revenue court, to a civil court, howsoever absurd that reference might be, there was an end of the matter, and that not only the civil court to which the matter was referred but the appellate courts including this Court were for ever debarred from considering the question in appeal or otherwise whether a question of a proprietary nature within the meaning of sec. 239 of the Tenancy Act at all arose and thereby allow the courts below to assume jurisdiction where it did not exist or arrogate such jurisdiction to themselves. So far as I am able to consider, such a view would not be right. I am fortified in coming to this conclusion by a number of decisions of this Court to which I shall presently draw attention. 22. The first case is that of Bherulal to which I have already drawn attention in another connection.The facts of that case were that the plaintiffs brought a suit for possession of certain agricultural land and for mesne profits thereof in the court of the District Judge, Udaipur. The suit seems to have been transferred later to the court of the Civil Judge where it was pending when the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, came into force. Thereupon the Civil Judge transferred it to the revenue court. The revenue court was of the opinion that an issue as to a proprietary right namely whether the plaintiffs ancestor was a Bapidar of this land or not arose and therefore he referred it to a civil court for decision. The Civil Judge tried this issue and decided it against the plaintiffs. Thereupon that decision was communicated to the revenue court which dismissed the suit on the basis of the Civil Judges finding. The Civil Judge tried this issue and decided it against the plaintiffs. Thereupon that decision was communicated to the revenue court which dismissed the suit on the basis of the Civil Judges finding. An appeal was filed from that decision to this Court, and the main ground raised was that the Civil Court had no jurisdiction whatsoever and the revenue court was not right in referring any question of proprietary right to the civil court in the circumstances of the case because no such question arose therein. The judgment of the court was delivered by Wanchoo C., J., as he then was, and it was held that as there was no question of a proprietary right arising in the case, the reference by the revenue court to the civil court was entirely uncalled for, and that the decision of the Civil Judge on that question was without jurisdiction and must be set aside. On his finding, the case was sent back to the revenue court with a direction that it must decide all the issues raised in the case itself. This case clearly brings out the point that where a reference by the revenue court to the civil court is incompetent, and thereafter the case is decided by the revenue court accepting the correctness of the finding of the civil court, as it must, the entire proceedings are bad and without jurisdiction, and they must be. set aside. 23. An identical question arose directly in another case of this Court reported as Chhagan Lal vs. Sukh Lal (3) to which also reference has been made above in another connection and delivering the judgment of the Bench in that case, the following observations were made by me : "It seems to have been contended before the learned single Judge, however that once an issue had been remitted to a civil court for decision under sec. 36 of the Act of 1951 or sec. 239 of the Act of 1955, the civil courts were not entitled to examine that question in appeal. Our answer to this contention is in an emphatic negative. We fail to understand when the whole case is before the civil court in appeal, how and why it can be prevented from addressing itself to a question which undoubtedly affects the merits of the case. Our answer to this contention is in an emphatic negative. We fail to understand when the whole case is before the civil court in appeal, how and why it can be prevented from addressing itself to a question which undoubtedly affects the merits of the case. No law has been cited to us, and indeed we know of none, which would preclude the civil court from re-examining the question as to whether an issue as to proprietary right at all arose in the case or not. We should also like to refer in this connection to the case of Bherulal and another vs. Todu and others to which we have made reference above where an identical question was raised before the High Court in first appeal and that question was examined by the court and a finding given that no issue of proprietary title arose in that case. In this state of the law, we are categorically of the opinion that there is no merit in the contention that the civil courts in appeal will not be entitled to examine the propriety of the question whether an issue as to proprietary title at all properly arose in the case and if not whether the revenue court had any jurisdiction at all to refer it to the civil court. We answer the question accordingly." Having therefore, given my earnest consideration to this particular aspect of the controversy raised by learned counsel for the appellants, I am unable to hold that by the observations which Wanchoo C.J. thought fit to make in passing in the Full Bench case, the law was intended to be laid down that once a reference had been made to a civil court by a revenue court on the footing that a question of proprietary title arose therein, the civil courts in appeal were thereby debarred from considering one of the main questions upon which the correctness of the entire proceedings before the civil courts Would depend namely whether a question as to proprietary right at all arose in a given case and that even where such a question did not arise, the higher courts on an appeal were powerless to correct the mistake made by the tribunals below and re-direct the case to be tried in accordance with law. If I may say so, with all respect, the acceptance of the view pressed by learned counsel would amount to usurpation of jurisdiction by the subordinate tribunals where such jurisdiction does not exist and would make the civil courts of appeal powerless to remedy such a fundamental mistake, a position which I am entirely unable to accept. It may be added perhaps that all that the Full Bench meant by the observations which have been quoted above was that a reference in the circumstances of that case as was made by the Munsiff to the High Court could not have been made within the meaning of sec.40 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951. To say that is one thing; but it would be an entirely different thing from that to conclude that where such a mistake has been made, the courts of appeal and in particular this Court cannot rectify such a mistake and quash the proceedings which have been taken on an entirely mistaken view of the case in so far as it pertained to the involvement of a question of proprietary right. 24. It only remains for me to add on this aspect of the case that the circumstance that the decision of the Collector was not made the subject-matter of a further appeal or revision, does not and cannot make any difference to the conclusion at which I have arrived above. The correct principle to apply in a case like this is that where a litigant has no alternative remedies, the mere fact that he may not have resorted to one of such remedies cannot dis entitle him to have recourse to the other one. 25. In any view of the matter the failure of the respondents to question the order of the Collector in a manner that was open to them on the revenue side cannot estop them from raising this objection before the civil courts, and this Court of all the courts has undoubted jurisdiction where it has been made. This contention, therefore, also fails and I hereby reject it. 26. The only other point which then remains to consider is whether the learned District Judge was right in sending the case back to the Tehsildar for being-further proceeded with in accordance with law. This contention, therefore, also fails and I hereby reject it. 26. The only other point which then remains to consider is whether the learned District Judge was right in sending the case back to the Tehsildar for being-further proceeded with in accordance with law. This order does not seem to me to be correct for the obvious reason that before the Tehsildar had referred the case to the civil court in accordance with the decision of the Collector, he had already decided the case by his order dated the 30th August, 1957. That being so, the proper order to make in the circumstances of the case would be to quash all the proceedings subsequent to the filing of the appeal by the petitioners before the Collector including the order of the Collector remanding the case to the Tehsildar and calling upon him to make a reference to the Civil Court. The correct position which then follows is that the Collector should hear and dispose of the petitioners appeal on the merits against the order of the Tehsildar referred to above which must be treated as still pending before him. I order accordingly. 27. The result is that, for the reasons mentioned above, I partly allow this appeal, modify the judgment and decree of the learned District Judge, Bikaner, and send the case to the Collector Churu for being proceeded with in the light of the observations made above. Having regard to all the circumstances of the case, I would leave the parties to bear their own costs throughout but further costs will abide the result.