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Hardayal and anr. Vs. Jaggasingh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 230 of 1968
Judge
Reported inAIR1969Raj89
ActsTenancy Law; Rajasthan Tenancy Act, 1955 - Sections 242
AppellantHardayal and anr.
RespondentJaggasingh and ors.
Advocates: H.M. Lodha, Adv.
DispositionRevision application dismissed
Cases ReferredHamirsingh v. Peeth Singh
Excerpt:
.....like the present i am clearly of the opinion that the suit could rightly be taken cognisance of by a civil court and what would be necessary is to refer the issue regarding the claim for tenancy rights to the revenue court if at all it is found necessary in the case......in the revenue courts (procedure and jurisdiction) act, 1951 which governed the procedure for suits triable by revenue courts before the rajasthan tenancy act came to be passed. learned counsel pointed out that section 7 of the act, was in pan materia with the provisions of section 207 of the rajasthan tenancy act. he drew my attention to two cases (1) gulla v. doliya, 1953 raj lw 332 and (2) hamirsingh v. peeth singh, ilr (1951) 1 raj 81. in the former case wanchoo, c. j. as he then was observed that: 'once the cause of action is such that a suit can be brought in the revenue court on the basis of it and some relief obtained, the suit must be filed in the revenue court even though it may be possible to ask for greater or additional or some different relief from the civil court.'.....
Judgment:
ORDER

Kan Singh, J.

1. Learned counsel for the petitioner raised two points to start with-

(1) that the Court fee paid by the plaintiff respondent was not sufficient.

(2) that the trial Court was in error in holding that the suit was triable by it and therefore, it was not necessary to return the plaint.

2. In the light of Sri Rathnavarmaraja v. Smt. Vimla, AIR 1961 SC 1299, learned counsel very rightly did not press the first point.

3. Regarding the second point he submitted that as the plaintiff had sought a declaration for his being a khatedari tenant of the land the suit was not cognisable by a civil Court and could be tried only by a revenue Court according to the provisions of Section 207 of the Rajasthan Tenancy Act, 1955. He referred me to the analogous provisions in the Revenue Courts (Procedure and Jurisdiction) Act, 1951 which governed the procedure for suits triable by revenue Courts before the Rajasthan Tenancy Act came to be passed. Learned counsel pointed out that Section 7 of the Act, was in pan materia with the provisions of Section 207 of the Rajasthan Tenancy Act. He drew my attention to two cases (1) Gulla v. Doliya, 1953 Raj LW 332 and (2) Hamirsingh v. Peeth Singh, ILR (1951) 1 Raj 81. In the former case Wanchoo, C. J. as he then was observed that:

'Once the cause of action is such that a suit can be brought in the revenue Court on the basis of it and some relief obtained, the suit must be filed in the revenue Court even though it may be possible to ask for greater or additional or some different relief from the civil Court.'

The learned C. J. held that:

'In any case if an additional relief to the one that could be granted by the revenue Court and which follows from that relief could be claimed then the mere prayer for an additional relief would not take the suit out of cognisance of the revenue Court.' It is to my mind clear that the learned C. J. was dealing with the situation where an additional relief would be flowing from the relief that could be granted by the revenue court. The learned Chief Justice in my humble view was not dealing with a case of more than one causes of action in an action. In other words he did not have any occasion to make a pronouncement as regards the position where there are more than one causes of action joined in a suit and at any rate one cause of action is such as is not triable by a revenue Court, as in the present case. In the present case the plaintiff averred that the defendant petitioner had entered into an agreement with him for the sale of certain agricultural lands which belonged to him. In pursuance of that agreement certain advance payments towards the sale price are alleged to have been made by the plaintiff to the defendant petitioner. The plaintiff took the position that at the time the agreement was made the land which was a zaminclari land had become vested in the State of Rajasthan as a result of the Biswedari and Zamindari Abolition Act with the result that the defendant was not competent to sell the same. The plaintiff, therefore, prayed in the first instance that the agreement alleged to have been made be declared to be null and void and the defendant be ordered to refund the amount that the plaintiff had advanced to him together with certain incidental expenses. In the second place it was averred in the plaint that the defendant petitioner had purported to transfer the land to the other co-defendants and this transfer according to the plaintiff was null and void because the plaintiff had acquired khatedari rights in respect of this land on account of his cultivatory possession. Learned counsel contends that since the civil Court is not competent to declare whether the plaintiff had or had not acquired khatedari rights and this declaration can be granted only by the revenue court the civil Court was not competent to try the whole suit. Such a case was not examined by the learned C. J. in the afore-mentioned decision. In my view where the revenue court would not be competent to make any pronouncement about the validity of the agreement between the parties or to decree the refund of the amount said to have been advanced by the plaintiff, the suit will be triable by a civil court. It is true that a civil court will not be competent to go into the question whether the plaintiff had or had not acquired the khatedari rights claimed by him in the land or to grant him any relief by way of declaration in respect of such rights yet on that basis alone it cannot be postulated that the suit shall not be triable by a civil Court, In my humble opinion the legislature has made provision for dealing with such composite matters when it enacted section 242 in the Rajasthan Tenancy Act, 1955 which runs as under:--

'Section 242. Procedure when plea of tenancy rights raised in civil Courts-- (1) If, in any suit relating to agricultural land instituted in a civil court, any question regarding tenancy rights arises and such question has not previously been determined by a revenue court of competent jurisdiction, the civil court shall frame an issue on the plea of tenancy and submit the record to the appropriate revenue court for the decision of that issue only.

Explanation:-- A plea of tenancy which is clearly untenable and intended solely to oust the jurisdiction of the civil Court shall not be deemed to raise a plea of tenancy.

(2) The revenue Court, after re-framing the issue, if necessary shall decide such issue only, and return the record together with its finding thereon, to the civil Court which submitted it.

(3) The civil Court shall then proceed to decide the suit, accepting the finding of the revenue court on the issue referred to it.

(4) The finding of the revenue court on the issue referred to it shall, for the purposes of appeal, be deemed to be a part of the finding of the civil court.'

4. Now it cannot be gainsaid that this is a suit relating to agricultural land and the suit has undoubtedly been instituted in a civil court. Therefore, if in such a suit any question regarding tenancy rights arises and such question has not previously been determined by a revenue court of competent jurisdiction the civil Court will have to frame an issue on the plea of tenancy and submit the record to the appropriate revenue court for the decision or that decision only. In other words it will be necessary to refer only the issue relating to claim about tenancy rights, to the revenue Court, but otherwise the suit remains with the civil court. Therefore, Section 242 clearly covers a situation arising in the present case. It will be for the civil court to see at the appropriate stage, if necessary, whether the question regarding the claim to tenancy rights should be referred to the revenue court. I do not see the civil court will take upon itself to deal with such a question if it is really necessary to decide the same.

5. Learned counsel also invited my attention to certain observations in Hamirsingh's case, ILR (1951) 1 Raj 81 = 1951 Raj LW 228, in the penultimate paragraph of the judgment. Bapna J. observed as follows:

'It was contended by the learned counsel for the petitioner that there were other reliefs in the present suit which could not be granted by a revenue Court, and drew my attention to the claim for possession of the three plots of abadi land in the village as also for mesne profits. The cause of action for the possession of abadi land is entirely different from that in respect of the agricultural holdings and the suit be tried by Civil Court merely because the plaintiff chooses to add some other claim unconnected with the agricultural holding in the suit. The plaintiff may, if so advised, file a separate suit for possession of the Abadi land. As regards mesne profits, that relief would be ancillary to his claim for possession of agricultural land.'

It is true the case before Bapna J. was of the type where there were more than one causes of action joined in a suit and one cause of action was found to be triable by a revenue court and the other by a civil court. The solution suggested by Bapna J. in that case was that for the cause of action that is triable by civil court the plaintiff could file a separate suit, but in any case the suit was held by him to be triable by a revenue Court. With utmost deference to the learned Judge, in my humble view his attention was not invited to the provisions of Section 39 of 1950 Act which was analogous to Section 242 of the Rajasthan Tenancy Act, 1955. As observed by me above this section clearly contemplates a situation where some portion of the claim made in the plaint is triable by a civil court and the other portion is triable by a revenue court. In a case like the present I am clearly of the opinion that the suit could rightly be taken cognisance of by a civil court and what would be necessary is to refer the issue regarding the claim for tenancy rights to the revenue Court if at all it is found necessary in the case.

6. In these circumstances I do not find force in this revision application which is hereby rejected in limine.


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