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Kishna and anr. Vs. Gheesa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Ref. No. 9 of 1954
Judge
Reported inAIR1956Raj112
ActsRajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951; Code of Civil Procedure (CPC) , 1908 - Sections 9; Transfer of Property Act - Sections 60 and 83
AppellantKishna and anr.
RespondentGheesa and ors.
Cases ReferredShri Chand v. Daulat Ram
Excerpt:
- .....we, therefore, hold that the suit as framed is triable by a civil court. it is, therefore, not necessary to decide whether certain issues remitted by the assistant collector are, or are not, triable by a civil court, as the whole suit is triable by that court. the suit is, therefore, transferred for trial from the court of assistant collector, jhalawar, to the court of munsif, jhalarapatan.
Judgment:

Bapna, J.

1. This is a reference by the learned Munsif, Jhalrapatan, under Section 40, Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951.

2. Kishna and another filed a suit for redemption of certain agricultural land in the Court of Munsif, jhalrapatan, on 23-5-1950. The defendants denied the mortgagor's title to the land as also the fact of the mortgage. On the enforcement of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, the learned Munsif transferred the suit to the Court of Assistant Collector by order dated 5-3-1951, The Assistant Collector dismissed the suit after trial on 6-11-1952, but on appeal the case was remanded for a fresh trial by the Collector.

At this stage the learned Assistant Collector was of opinion that certain issues relevant in the suit related to an enquiry about the proprietary title to land, and he, therefore, made an order remitting Issues Nos. 1, 4 and 5 for trial by the civil court under Section 36, Rajasthan Revenue Courts (Procedure and Jurisdiction) Act. The learned Munsif of Jhalrapatan, however, was of opinion that no question of proprietary title was involved in the suit, and that the suit was triable by a revenue court. He accordingly made this reference by an order dated 4-2-1954.

3. A suit for redemption is not among the suitsenumerated in Group A or Group B of Schedule 1 to theAct, and the only reference regarding redemption isto be found in Group D, which relates to an application by a mortgagor for redemption of land and forre-delivery of possession, for which the proper court-fee is mentioned as annas -/8/-. This is item 5, andit relates to an application provided by Section 83.T. P. Act, and does not refer to a suit for redemptionwhich right is enumerated in Section 60, T. P. Act.

That right can only be enforced by a suit, if themortgagee is not prepared to redeem on demand oron application under Section 83, T. P. Act. It hasbeen held by a single Judge of this Court in -- 'ShriChand v. Daulat Ram', 1952 Raj LW 495 (A) thata suit for redemption is triable by a revenue courtunder item 5, Group D, Sen. 1. The distinction thatGroup D relates to an application and not to a suitdoes not seem to have been kept in view.

Again the two remedies -- one by application and the other by suit -- are two distinct rights provided separately in the Transfer of Property Act. As a suit to redeem has not been included in either Group A or Group B, that suit is not triable by a revenue court. The view taken in -- 'Shri Chand v. Daulat Ram (A)', does not appear to be correct.

4. We, therefore, hold that the suit as framed is triable by a civil court. It is, therefore, not necessary to decide whether certain issues remitted by the Assistant Collector are, or are not, triable by a civil court, as the whole suit is triable by that court. The suit is, therefore, transferred for trial from the Court of Assistant Collector, Jhalawar, to the Court of Munsif, Jhalarapatan.


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