Asala v. Narain — 1963 DIGILAW 69 (RAJ)

Modi, J.—This is a civil regular second appeal by the defendants Asala and three others against the judgment and decree of the District Judge, Jhunjhunu, dated the 23rd November, 1957, affirming the judgment and decree of the Civil Judge, Jhunjhunu, dated the 23rd December, 1956, in a suit for declaration relating to certain agricultural land. 2. As the question of jurisdiction raised in this appeal goes to the root of the case, it is necessary to state the facts with particular reference to that question only. The defendants appellants here, claiming to be tenants with respect to the agricultural land in suit, which is situate in village Mohanbadi and which comprises 37 Bighas of agricultural land appurtenant to a well called Purohitanwala had filed an application to the Anti-Ejectment Officer against their dispossession at the hands of defendants Nos. 5 to 19 in this suit and obtained an order for their reinstatement. See Ex. Al dated the 5th October, 1953. This order had the effect of a decree under sub-sec. (4) of sec. 7 of the Rajasthan (Protection of Tenants) Ordinance No. 9 of 1949. There is material on the record to show that as a result of this order, the appellants were put in possession of the land in dispute on the 7th October, 1953 vide Ex. A-2. Thereupon the plaintiffs Narain and three others who are obviously relations of some of the (proforma) defendants Nos. 5 to 19 here brought the present suit, out of which this appeal arises, for a declaration that the order or decree which had been obtained by the defendants appellants against defendants respondents No. 5 to 19 was not binding on them, and, therefore, it was void and of no effect so far as they were concerned. They also prayed in the alternative that if the court came to the conclusion that the defendants appellants had obtained what they chose to call symbolic possession of the land in suit, then a decree be passed in their favour restoring them to possession. This suit was brought on the 6th January, 1955, in the court of the Civil Judge, Jhunjhunu. 3. Defendants Nos. 5 to 19 allowed the suit to proceed ex parte against themselves. The appellants contested the suit. This suit was brought on the 6th January, 1955, in the court of the Civil Judge, Jhunjhunu. 3. Defendants Nos. 5 to 19 allowed the suit to proceed ex parte against themselves. The appellants contested the suit. One of the questions raised by them was that the civil court had no jurisdiction to take cognizance of the suit as it was exclusively triable by a revenue court. 4. Both courts below repelled this contention and decreed the plaintiffs suit. This is how the defendants appellants have come up in second appeal to this Court. 5. The first and foremost question which thus emerges for determination in this appeal is whether the present suit was exclusively triable by a revenue court in accordance with the provisions of the Rajasthan Tenancy Act, 1955 (Act No. 3 of 1955, hereinafter called the Act of 1955) which had come into force on the 15th October, 1955, when the suit was pending in the court of the Civil Judge, Jhunjhunu. It is contended by learned counsel for the defendants appellants that the courts below had fallen into a grave error of law holding that a suit like the present was properly instituted in the civil court. It is submitted that the courts should have looked to the real substance of the suit and not to its outward form and that so looked at, it was clearly governed by secs. 88, 90 or 91 of the Act of 1955, and fell within item Nos. 5, 7 or8 of the Third Schedule of the Act of 1955 and further that the suit was really based on a cause of action in respect of which relief could be lawfully and properly claimed in a revenue court only, and, therefore, under sec. 207 of the Act, the jurisdiction of the civil courts to take cognizance of such a suit was completely barred. It was equally strenuously contended on the side of the contesting respondents that a suit of this character was not directly governed by any of the items in the Third Schedule of the Act of 1955 or by other provisions contained therein, and, therefore, the civil court was perfectly justified in taking cognizance of the suit. It was equally strenuously contended on the side of the contesting respondents that a suit of this character was not directly governed by any of the items in the Third Schedule of the Act of 1955 or by other provisions contained therein, and, therefore, the civil court was perfectly justified in taking cognizance of the suit. Reliance was placed in support of this submission on the decision of a learned single Judge of this Court in Jhuntha vs. Surjansingh (S.B. Civil Reference No. 55 of 1951 decided on the 30th January, 1951), in which it was laid down that a suit for cancellation of a decree whether passed by a revenue court or a civil court was obviously a suit of a civil nature according to the definition of a civil suit given in sec. 9 of the Code of Civil Procedure and therefore the court had jurisdiction to take cognizance of it. 6. Now, it has been laid down in a number of decisions of this Court to many of which I have been a party, that the question of jurisdiction namely whether a suit is exclusively triable by a revenue court or the civil courts can take cognizance of it, has to be decided on the allegations made in the plaint taken in their essence. The guiding test according to these decisions, put in a nutshell, is : what is the true nature of the suit, or what is its object as disclosed by the allegations contained in the plaint? If the answer to these questions is that the plaintiff seeks the establishment of reliefs which essentially fall within the scope of the Tenancy Act, that is, the Act of 1955, with which we are concerned here, then the conclusion as to the proper jurisdiction of such a suit is and must be that it is one which is exclusively triable by a revenue court, and that the jurisdiction of the civil courts to try and dispose of such suits is wholly barred. That is the gist of sec. That is the gist of sec. 207 of the said Act which lays down that all suits and applications "of the nature" specified in the Third Schedule thereof shall be heard and determined by a revenue court, and here I would underline the phrase "of the nature" occurring in this section if only to emphasize that the intention of the Legislature in using this phrase definitely seems to be that suits which not only squarely fall within the four walls of the various items specified in the Third Schedule but also those which may not so fall but which may partake of the nature thereof can be heard and determined by a revenue court only. This section further enacts that no court other than a revenue court shall take cognizance of any such suit or application, or of any suit or application which is based on a cause of action in respect of which any relief could be obtained by means of any such suit or application in a revenue court. Further there is an Explanation to the section which provides that where the cause of action is one in respect of which the relief can be granted by the revenue court, then the factor that the relief asked for from the civil court is greater than or additional to, or is not identical with, that which the revenue court could have granted would be of no consequence. 7. Let us then look to the real nature of the dispute raised in this case. For that, we must go to the plaint filed on behalf of the plaintiffs and carefully analyse it Paragraphs 1 and 2 of the plaint clearly show that the dispute is with regard to agricultural land. In paragraph 3, the plaintiffs refer to the application filed by the defendants appellants before the Anti-Ejectment Officer under sec. 7 of the Tenants Protection Ordinance of 1949 against defendants Nos.5 to 19 complaining against their dispossession at the hands of the latter. It is further alleged that defendants Nos. 5 to 19 who admittedly are co-muafidars of the suit land with the plaintiffs had colluded with the defendants appellants as a result of which the latter were able to obtain an order of their re-instatement from the Anti-Ejectment Officer on the 5th October, 1953. It is further alleged that defendants Nos. 5 to 19 who admittedly are co-muafidars of the suit land with the plaintiffs had colluded with the defendants appellants as a result of which the latter were able to obtain an order of their re-instatement from the Anti-Ejectment Officer on the 5th October, 1953. It is then said that a revision was filed before the Board of Revenue against the aforesaid order, presumably by defendants Nos. 5 to 19 which was dismissed by an order of the Board dated the 28th December, 1953. In paragraph 4 of the plaint, the main allegation made by the plaintiffs is that the plaintiffs were the real persons who were in cultivatory possession of the land and that they had not been made parties to the proceeding before the Anti-Ejectment Officer or before the Revenue Board and, therefore, they were not aware of the proceedings taken before these authorities. In paragraph 5, the allegation is that the defendants appellant want to take possession of the land in dispute in pursuance of the orders of the Anti-Ejectment Officer and the Revenue Board, which were not binding at all on the plaintiffs, and, therefore, it had become necessary for them to file the present suit. In paragraph 6, it is alleged that the plaintiffs Nos. 1, 3 and 4 and the son of the plaintiff No. 2 had filed two suits—one for permanent injunction in a civil court, and another for a declaration in the court of the Sub-Divisional Officer, Udaipur (the dates of the institution of these suits have not been disclosed) but both these suits had been withdrawn with the permission of the court with liberty to bring a fresh suit and that was how the present suit came to be filed. In paragraph 7 it was further mentioned that according to the defendants appellants, they had obtained possession of the suit land on the 7th October, 1953, but that allegation was completely false and unfounded and the plaintiffs were still in possession of the land in suit. Paragraph No. 8 repeats some of the allegations made earlier and does not require any separate reference. In paragraph No. 9, it has been mentioned that as defendant Nos. 5 to 19 had entered into collusion with the defendants appellants, they had been made defendants in the suit. Paragraph No. 8 repeats some of the allegations made earlier and does not require any separate reference. In paragraph No. 9, it has been mentioned that as defendant Nos. 5 to 19 had entered into collusion with the defendants appellants, they had been made defendants in the suit. In paragraph No. 10, it is alleged that a cause of action for filing this suit arose to the plaintiffs when the defendants appellant had obtained the order of the Anti-Ejectment Officer for their reinstatement on the 5th October, 1953, and the same order was upheld by the Revenue Board on the 28th December, 1953, and as the defendants appellants claim to be in possession of the land in suit on and from the 7th October, 1953. Paragraphs Nos. 11, 12 and 13 are formal and do not require any reference. Then comes paragraph No. 14 in which the relief is claimed. It is prayed that a declaration be granted to the plaintiffs that the order of the Anti-Ejectment Officer dated the 5th October, 1953, and that of the Revenue Board dated the 28th December, 1953, are void, illegal and of no effect against them, and, therefore, they are not binding on them at all. Alternatively, it is prayed that if the contention of the defendants Nos. 1 to 4 is accepted, namely, that they have been put in possession of the land in dispute, then the plaintiffs be restored to possession. This is a fairly full summary of the plaint filed by the plaintiffs in this case. 8. From the aforesaid analysis of the plaintiffs case, it clearly appears to me that what they really seek is the establishment of their right that although they were the muafidars of the land in suit along with defendants Nos. 5 to 19, they themselves were the persons in actual cultivatory possession thereof, or, in other words, that they were the real tenants of this land and not the defendants appellants. Their claim further is that they still continue to be in possession of this land in spite of the orders of the Anti-Ejectment Officer and the Revenue Board; but that if they were not found to be in such possession, the same may be restored to them. Their claim further is that they still continue to be in possession of this land in spite of the orders of the Anti-Ejectment Officer and the Revenue Board; but that if they were not found to be in such possession, the same may be restored to them. Put in a nut-shell, the plaintiffs case is virtually for a declaration of their rights as tenants with respect to the land in suit and further for recovery of possession if they were found to be out of it. 9. The short question, therefore, is whether such a suit falls within the four walls of the provisions of the Act of 1955. In my opinion, it clearly does. Reference may here be invited to sec. 88 of the Act of 1955 which finds place in Chapter 8 thereof, and the heading of the Chapter is Declaratory Suits. The material portion of sec. 88 reads as follows:— Suits for declaration of right:— (1) Any person claiming to be a tenant or a co-tenant may sue for a declaration that he is a tenant or for a declaration of his share in such joint tenancy." The next relevant section in this connection is Sec. 90 which reads as follows:— "Suit for declaration of land as Khudkasht—When land claimed by a tenant as his holding or as being under his cultivation is also claimed by a land-holder as his Khudkasht, such tenant or land-holder may sue for a declaration of his status." Then the next following section may as well be quoted which is in these terms :— "Suit for declaration of other rights—Except as otherwise specifically provided, any person may sue for a declaration of all or any of his rights conferred by this Act and not otherwise provided for." The respective items in the Third Schedule corresponding to the three sections quoted above are items Nos. 5, 7 and 8. Reference may then be made to sec. 207 of the Act, to which I have adverted above and which unmistakably lays down that all suits and applications of the nature specified in the Third Schedule shall be heard and determined by a revenue court and that no court other than a revenue court shall take cognizance of any such suit or application. 10. 207 of the Act, to which I have adverted above and which unmistakably lays down that all suits and applications of the nature specified in the Third Schedule shall be heard and determined by a revenue court and that no court other than a revenue court shall take cognizance of any such suit or application. 10. The plaintiffs have also claimed to be in possession of the lands in suit and prayed that in case they are not found to be in such possession, then a decree be passed in their favour putting them back into possession. A suit for possession of agricultural land of the type we have here may not be governed by sub-sec. (1) of sec. 183 of the Act of 1955, yet it seems to me to be wide enough so that this suit does fall within the ambit of sub-sec. (b) thereof which reads as follows :— "A trespasser shall, notwithstanding anything to the contrary in any provision of this Act, be liable. (b) if he has prevented any other person from occupying land duly let out to such person, to ejectment on the suit of such person and also to pay damages which may extend to six times the annual rent." Again, the expression "trespasser" has been defined in clause (44) of sec. 5 of the Act of 1955 of follows :— "Trespasser" shall mean a person who takes or retains possession of unoccupied land without authority or who prevents another person from occupying land duly lot out to him (The underlining (italic) is mine) It will be noticed that this definition is very wide. 11. Now the case of the plaintiffs here is that they are the actual tenants of the land in dispute and there can be no gainsaying the position that their further case is that the defendants appellants are preventing them from the occupation of the agricultural property in question. 12. It only remains for me, while dealing with this aspect of the case to point out that a suit under sec. 183 is referable to Item No. 23 of the Third Schedule of the Act of 1955. 12. It only remains for me, while dealing with this aspect of the case to point out that a suit under sec. 183 is referable to Item No. 23 of the Third Schedule of the Act of 1955. My view on the whole therefore is that this part of the present suit in any case partakes of the nature of a suit falling under the last-mentioned item of the Third Schedule of the Act and is therefore a suit of a revenue character. 13. On a careful consideration of the nature of the dispute raised in this case by the plaintiffs, I have no manner of doubt that their claim revolves around a cause of action which squarely falls within the provisions to which I have referred above. 14. Learned counsel for the contesting respondents, however, strenuously contends that what his clients have sought a declaration about is that the orders passed by the Anti Ejectment Officer and the Revenue Board are void, illegal and inoperative, and, therefore, are not binding on them and that a suit for such relief does not directly fall within the provisions of any of the items mentioned in the Third Schedule of the Act. This argument, in my considered judgment, is without any substance. It is correct that the plaintiffs have framed their claim in this manner. But that, in my opinion, cannot be accepted to be decisive of the question of jurisdiction. The proper determination of the question of jurisdiction, as I have already observed above, depends not on the outward frame in which the plaintiffs may have chosen to clothe their plaint, but on the substance of it. The plaint has, therefore, got to be probed, and its real character ascertained. And the analysis that I have made of the plaint in the foregoing part of this judgment leaves no doubt whatever in my mind that what the plaintiffs seek thereby is an establishment of their rights as tenants to the land in dispute and for the recovery of its possession in case they are not found to be in possession of it. It, therefore, does not matter that the formal relief which the plaintiffs claim in the present case is moulded in the particular manner in which it has been. It, therefore, does not matter that the formal relief which the plaintiffs claim in the present case is moulded in the particular manner in which it has been. If that were not so, it would be open to a party who happed to be defeated in the revenue court in a suit exclusively triable by it to file a second suit in the civil court and claim a relief that the decree passed against him by the revenue court is not binding on him for certain reasons which may be good, bad or indifferent. That would completely defeat the jurisdiction of the revenue courts and such a course could not possibly have been contemplated by the Legislature when it enacted Secs. 206 and 207 of the Act of 1955. I have therefore, no hesitation whatsoever in coming to the conclusion that the expedient of seeking a declaration that the order or decree of the Anti Ejectment Officer and of the Revenue Board were not binding on the plaintiffs cannot be allowed to camouflage the real nature of the suit or object of the plaintiffs in bringing it. In this view of the matter, I have definitely come to the conclusion that the present suit is one which is exclusively triable by a revenue court and that the civil courts have no jurisdiction to take cognizance of it. 15. This brings me to the case of Jhuntha vs. Surajansingh (supra) on which learned counsel for they contesting respondents strongly relies. The facts of this case in so far as they appear from the judgment are these. S and certain other persons filed a suit against J and two others for ejectment. A compromise was arrived at between the parties as a result of which a decree was passed by the Tehsildar ordering J and his companions to be ejected, and the possession of the land was given to the plaintiffs. Thereafter J and his companions filed a suit (the date of the institution of the suit has not been given in the judgment) in the court of the Tehsildar for a declaration that the decree was not enforceable against them as it had been obtained by fraud. The Thesildar returned the plaint on the ground that the suit was of a civil nature and he had no jurisdiction to try it. The Thesildar returned the plaint on the ground that the suit was of a civil nature and he had no jurisdiction to try it. The plaint was then presented to the court of the Munsiff Khetri who made a reference to the High Court as he was in doubt whether the suit was exclusively triable by a revenue court or could be tried by a civil court. It was held by a learned single Judge of this Court that as the suit was for the cancellation of a decree whether passed by revenue or a civil court, it was a suit of civil nature, and the ground relied on seems to have been that there was no mention of any suit for cancellation of a decree passed by a revenue court in any of the items in the First Schedule of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 (hereinafter called the Act of 1951) which was accepted as governing the case. This decision was apparently arrived at because as mentioned in the judgment, it was conceded by learned counsel for the plaintiff that in the Schedules under the Act of 1951 there was no mention of any suit tor cancellation of a decree passed by a revenue court. 16. With all respect, therefore, Jhunthas case (supra) cannot be accepted a reasoned authority for the view it propounds. Besides, I find it extremely difficult lor me to accept the broad view that if a suit is brought for cancellation of a decree passed by a revenue court on the ground of fraud or collusion or a like ground, then such a suit would in its very nature lie in a civil Court and not in a revenue Court, For it seems to me that the acceptance of such a view would completely defeat the object of the Legislature in vouchsafing the trial of certain suits exclusively to revenue courts. On this view a defeated party in a revenue suit has only to mould his relief in a particular manner of stultify the jurisdiction of the revenue courts and that cannot possibly be allowed. 17. It was contended by learned counsel for the contesting respondents that the present case is stronger than Jhunthas case which has been discussed above because here the persons who have filed the present suit were not parties to the earlier litigation at all. 17. It was contended by learned counsel for the contesting respondents that the present case is stronger than Jhunthas case which has been discussed above because here the persons who have filed the present suit were not parties to the earlier litigation at all. This is perfectly correct but in my opinion does no make any difference whatsoever to the legal position which I have discussed above. The vital question is what is the nature of the claim raised by these plaintiffs ? What is their true object and what is their real cause of action ? If the answers to these questions be that the plaintiffs seek the establishment of certain rights for which a remedy has been provided in the Act of 1955, then they must seek their remedy in the revenue courts only and they cannot seek any remedy in the civil courts. That is the definite conclusion to which I have come on the question of jurisdiction. 18. In support of the view which has commended itself to me, reference may be made to a Bench decision of the Allahabad High Court in Kundan Lal vs. Parshadi (2). In this case the plaintiffs had been ejected by the defendant by a suit under the Agra Tenancy Act from a certain plot of land. The suit was decided ex parte. Their case was that notice was not served on them and that when they came to know of the decree, they made an attempt in the revenue court to get the exparte decree set aside, but the finding was against them, and their application was dismissed. Thereafter they filed a suit in the civil court alleging that the whole proceedings in the revenue court were tainted by fraud of the defendant who in collusion with the process-server pretended to get notices served on them whereas in fact they were not served and that plaintiffs knew this. Thereafter they filed a suit in the civil court alleging that the whole proceedings in the revenue court were tainted by fraud of the defendant who in collusion with the process-server pretended to get notices served on them whereas in fact they were not served and that plaintiffs knew this. It was prayed that a declaration be granted to the effect that the decree of the revenue court stood cancelled and further that the land in dispute was a grove land and was possessed by the plaintiffs as grove-holders The trial court found that there was no fraud on the part of the defendant; but it nevertheless granted the plaintiffs a declaration that they were grove-holders of the plot in suit because the revenue court came to a wrong finding of fact and the plots in dispute were not agricultural land. On appeal to the High Court, it was held that the decree passed by the trial court could not be sustained. The ratio of this decision in so far as it is relevant for our present purposes is that the plaintiff cannot by merely changing the form of his relief evade the provisions of the revenue law and that the civil court had no jurisdiction to do indirectly what it could not do directly so as to defeat the result of the decree regularly obtained in the revenue court in a matter which was within that courts jurisdiction. In this view of the matter, the suit was thrown out. We are not so much concerned with the actual decision of this case as with the principle it upholds, and that principle in my opinion clearly is that the plaintiff cannot defeat the special jurisdiction of a revenue court in a matter which exclusively falls within its jurisdiction by merely changing the form of the relief such as by asking for the cancellation of a decree passed by the revenue court when the substantial relief sought for is the establishment of certain rights with respect to agricultural land which relief the revenue court can appropriately allow and the civil courts directly cannot. If I may say so, I am in respectful agreement with the principle which this case upholds. 19. Learned counsel for the contesting respondents in the last resort referred me to sec. If I may say so, I am in respectful agreement with the principle which this case upholds. 19. Learned counsel for the contesting respondents in the last resort referred me to sec. 245 of the Act of 1955 which reads as follows:— "Procedure when objection was taken in the court of first instance— (1) If in any such suit an objection was made in the court of first instance and the appellate court has before it all the material necessary for the determination of the suit, it shall dispose of the appeal as if the suit had been instituted in the right court. (2) If the appellate court has not before it all such material and remands the case or frames issues and refers them for trial, or requires additional evidence to be taken, it may direct its order either to the court in which the suit was instituted or, to such court as it may declare to be competent to try the same. (3) No objection shall be taken or raised in appeal or otherwise to any such order on the ground that it has been directed to a court not competent to try the suit." The submission is that even though this Court comes to the conclusion that this is a suit which was exclusively triable by a revenue courts it should dispose of the appeal as if the suit had been instituted in the right court as the case has been tried and all the materia] which this Court may need to decide the case will be available to it. This objection is however completely answered by the decision of this Court in Rajrana Khuman Singh vs. Chaturbhuj (3). This is a decision on sec. 41 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, which corresponds to sec. 244 of the Act of 1955. It was held therein that sec. 41 of the Act, which provides that no objection as to the institution of the suit in the wrong court can be raised for the first time in the appellate court, has no application to cases which are covered by the mandatory provisions of sec. 6(3) of the Act of 1951. It may be noted that this sec. 6(3) corresponds to sec. 206(3) of the Act of 1955. Both sec. 6(3) and sec. 6(3) of the Act of 1951. It may be noted that this sec. 6(3) corresponds to sec. 206(3) of the Act of 1955. Both sec. 6(3) and sec. 206(3) give a clear mandate to a civil court before whom a suit, application, case or proceeding is pending but which has been declared by sec. 7 or 207 (as the case may be) to be exclusively triable by a revenue court to transfer such suit, application, case or proceeding to a revenue court competent to deal with and dispose of the same. Rajrana Khuman Singhs case (supra) holds that sec. 41 of the Act of 1951 cannot apply to those cases to which sec. 6(3) applies. By partiy of reasoning, sec. 42 of the old Act the corresponding sec. 245 of the present Act cannot have any application where sec. 206(3) applies. And there can possibly be no doubt that sec. 206(3) applies in the present case, because this suit which was instituted on the 6th January, 1955, was pending in the civil court when the Act of 1955 came into force on the 15th October, 1955. Therefore, sec. 245 cannot be rightly invoked in this case in the teeth of sec. 206 and I hold accordingly. 20. The conclusion to which, therefore, I am inevitably driven, though it is not with a certain amount of regret that I say so, is that the civil courts had no jurisdiction to try this case, and it must follow that their judgments are a nullity in the eye of law and cannot be sustained. 21. For the reasons mentioned above, I allow this appeal, set aside the judgments and decrees of the courts below, and acting under sec. 206(3) of the Act of 1955, send the case to the Civil Judge, Jhunjhunu, with a direction that he shall transfer it to the court of the Assistant Collector, Udaipur, which is the revenue court competent under sec. 217 to deal with and dispose of the same. I may also make it clear that all proceedings which were taken by the civil courts from the 15th October, 1955, onwards will stand quashed, and the case will be retried from that stage onwards. Having regard to all the circumstances of the case, I would, however, make no order as to costs here or hitherto.