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1964 DIGILAW 113 (RAJ)

Bhure Khan v. Khaju

1964-06-30

G.B.K.HOOJA

body1964
This revision petition has been filed by Bhure Khan and others against the orders of the Revenue Appellate Authority, Kota, dated the 18th July, 1963, whereby he accepted the appeal of Khaju etc. against the judgment and decree of the Sub-Divisional Officer, Gangapur, dated the 18th January, 1963 on the ground that the lower appellate Court had failed to exercise jurisdiction vested in it by law and had erred in law and had committed material irregularity and illegality in holding that the Sub-Divisional Officer had the jurisdiction to try the case relating to the right of way in the fields. It was prayed that the order of the lower appellate court be set aside and that of the trial court be upheld whereby the trial court had dismissed the suit filed by the opposite party seeking a perpetual injunction under secs. 188 and 92(A) of the Rajasthan Tenancy Act. Briefly stated the facts are that on the 6th Feb., 1962, the plaintiffs-opposite-party filed a suit in the Court of the Sub-Divisional Officer, Gangapur, under secs. 188 and 92(A) of the Rajasthan Tenancy Act praying for the grant of a perpetual injunction against the petitioners in respect of the right of the way falling through the fields of the petitioners which it was averred had been legally established by virtue of an order of the Panchayat Ahmadpur, dated the 7th January, 1962 under sec. 251 of the Rajasthan Tenancy Act. The learned Sub-Divisional Officer before whom the suit was filed came to the conclusion that the matter fell within the ambit of sec. 251 of the Rajasthan Tenancy Act and, therefore, lay within the jurisdiction of the Tehsildar or a Civil Court. He held that the suit did not fall under secs. 188 or 92(A) of the Rajasthan Tenancy Act. Accordingly he dismissed the same. Aggrieved by this order, the plaintiffs-opposite party filed an appeal before the Revenue Appellate Authority, Kota, who held that the Sub-Divisional Officer had all the powers of the Tehsildar and, therefore, it was not appropriate for the Sub-Divisional Officer to have dismissed the suit on the ground that the case should have been filed before the Tehsildar. It was held by the learned Revenue Appellate Authority that the suit had been filed under sec. It was held by the learned Revenue Appellate Authority that the suit had been filed under sec. 188 and 92(A) of the Rajasthan Tenancy Act which was triable by the Assistant Collector and he, therefore, remanded the case to the Sub-Divisional Officer for disposal according to law. The defendants-applicants have now come in revision against this order. It was argued on behalf of the defendants-applicants that the order of the Revenue Appellate Authority was illegal inasmuch as the power to try cases relating to the right of the was now vests with the Panchayat and the jurisdiction of the Tehsildars as well as the Sub-divisional Officers to try these cases has been withdrawn. It was, therefore, urged that the learned Revenue Appellate Authority had committed an illegality in remanding the case to the Sub-Divisional Officer who had no jurisdiction in the matter. On the other hand, it was stated on behalf of the plaintiffs-opposite-party that the Sub-Divisional Officer had committed an illegality in rejecting the suit. It was stated that if the Sub-Divisional Officer had not found the case to fall within his jurisdiction he should have returned the same to the plaintiffs-opposite-party for presenting it in the court of competent jurisdiction. In this connection reliance was placed on Shankar Lal Vs. Dhulilal reported as RLW 1963 Page 310 in which it was held that when a civil court finds that a suit is triable only by a revenue court and not by itself it should return the plaint to be presented to the Revenue Court and the action of the learned District Judge in dismissing the suit of the plaintiff was held to be erroneous with the observation that he should have ordered the return of the plaint to the plaintiff for presentation to the proper Court. It was contended on behalf of the plaintiffs-opposite-party that the Panchayat had earlier given orders in favour of the plaintiffs-opposite party under sec. 251 of the Rajasthan Tenancy Act and it was, therefore, that the plaintiffs-opposite party had moved the trial court under secs. 188 and 92(A) of the Rajasthan Tenancy Act as their acquired rights had now been invaded by the petitioners. It was averred that the threatened act of the petitioners-defendants was of such a character that it would result in injury to the plaintiffs-opposite party. 188 and 92(A) of the Rajasthan Tenancy Act as their acquired rights had now been invaded by the petitioners. It was averred that the threatened act of the petitioners-defendants was of such a character that it would result in injury to the plaintiffs-opposite party. The latter were, therefore, entitled to injunction restraining the former from doing such an act. In reply, it was stated by the counsel for the petitioners applicants that the order passed by the Panchayat which formed the basis of the suit filed by the plaintiffs-opposite-party had not yet been executed and the right of the way as claimed by them had not yet been establised. Under the circumstances, it was urged that the plaintiffs-opposite-party were debarred from bringing a suit under secs. 188 and 92(A) of the Rajasthan Tenancy Act. I have carefully considered the arguments advanced by the counsel for both the parties and am of the opinion that the order of the learned Revenue Appellate Authority remanding the case to the Sub-Divisional Officer for trial under secs. 188 and 92(A) of the Rajasthan Tenancy Act cannot be maintained. Sec. 188 of the Rajasthan Tenancy Act relates to injunction against wrongful ejectment. Under this section any tenant whose right to or enjoyment of the whole or a part of his holding is invaded or threatened to be invaded by his landholder or any other person may bring a suit for the grant of a perpetual injunction. A suit under this section can be brought by a tenant only. By the term tenant is meant a person by whom rent is payable and includes a co-tenant or a tenant of Khudkasht etc. Sec. 92(A) is a residuary section and is intended to meet the case of a grantee at a favourable rate of rent or a Jagirdar or a Thekedar or landholder not covered by sec. 188 of the Rajasthan Tenancy Act. The plaintiffs-opposite-party do not fall under these categories. They claim that they have acquired a vested interest in the right of the way on the basis of the decision of the Panchayat. Apparently, therefore, the learned Revenue Appellate Authority has fallen into an error in holding that the case is covered by sec. 188 and 92(A) of the Rajasthan Tenancy Act and is triable by the Court of the Asstt. Collector. Apparently, therefore, the learned Revenue Appellate Authority has fallen into an error in holding that the case is covered by sec. 188 and 92(A) of the Rajasthan Tenancy Act and is triable by the Court of the Asstt. Collector. So far as the question of the right of the way is concerned, it is claimed by the plaintiffs-opposite party that the panchayat court had given a decision in their favour. It is, however, not indicated what steps were taken by them to have the same executed. It is also obvious that the learned Sub-Divisional Officer committed an error ab initio in ignoring this aspect of the case when he held that the case fell within the orbit of sec. 251 of the Rajasthan Tenancy Act and was, as such, triable by the Tehsildar, inasmuch as in the first place, the Panchayat Court already stood seized of the matter, and, in the second place, according to the legal position as it now obtains, the jurisdiction to try the cases under sec. 251 of the Rajasthan Tenancy Act vests in the Panchayat Courts, and the Tehsildars have no jurisdiction in the matter. I, therefore, accept this revision petition and set aside the order of the learned Revenue Appellate Authority, remanding the case to the Asstt. Collector. Since the Panchayat Court has already adjudicated in the matter, it is for the parties concerned to proceed to take such further steps in the matter as may be legally permissible.