C.M. Lodha, J.
1. This is a plaintiff's second appeal arising out of a suit for cancellation of a document dated 1-6-1958 executed by the plaintiff in favour of the defendant Ratna.
2. The plaintiff's case as set out in the plaint is that the land in question which is a piece of agricultural land situated in village Khamnor. District Udaipur was originally owned and possessed by one Damodar and the plaintiff and the defendant are the sole survivors of Damodar and consequently each of them is entitled to one-half share in the land in question. It is alleged by the plaintiff that by practising fraud on him the defendant managed to get the document in question executed by the plaintiff wherein the plaintiff was made to acknowledge that he had only one-third share in this land.
The plaintiff goes on to state that he discovered this fraud when he had a talk with some relations and friends of his on 20-6-1961 at the fair of Partap Jayanti in Khamnor. Having discovered this fraud he filed the present suit in the Court of Munsiff Nathdwara on 3-7-1961 praying that the document dated 1-6-1958 wherein the plaintiff had acknowledged that he had only one-third share in the land in dispute and that two-thirds belonged to the defendant, be cancelled.
3. The suit was resisted by the defendant, who pleaded inter alia that the plaintiff had only one-third share in the land in dispute and that he had not practised any fraud on the plaintiff for getting the document dated 1-6-1958 executed by him. It was also pleaded that the suit was barred by time. The learned trial Court after recording the evidence produced by the parties decreed the plaintiff's suit.
4. Aggrieved by the judgment and decree of the trial court the defendant filed appeal which was allowed by the Additional Civil Judge, Udaipur by his judgment dated 19-11-63 and the plaintiff's suit was dismissed. Learned Civil Judge held that the version of the plaintiff that he happened to discover the fraud on 20-6-1961 is incorrect and that the limitation for the suit commenced from the date of the execution of the document, that is 1st June, 1958. He also held that the suit was governed by Article 91 of the Limitation Act (1908), which was then in force and since the suit has been filed on 4-7-1961, a day after the expiry of the period of three years from the date of the execution of the document, the suit was barred by limitation. He further held that the plaintiff had failed to prove that any fraud was practised upon him for getting the suit document executed by him. In this view of the matter, he set aside the judgment and decree by the trial court and dismissed the plaintiff's suit.
5. On the question of limitation I must say that the learned first appellate court did not care to look at the plaint at all. It has observed that the plaint was submitted on 4-7-1961 and counting the period of limitation on that basis it held the suit out of limitation as the last date for presentation of the plaint was 3-7-1961 on which the Civil Courts reopened after summer vacation. It is admitted by the learned counsel for the respondent that since the plaint was filed on 3-7-61 it was clearly within limitation. It is indeed sad to observe that the learned first appellate court held the suit to be time-barred on account of its wrong assumption that the suit was filed on 4-7-1961, which was the date of report submitted by the Stamp Reporter.
It is conceded on behalf of the respondent that in this view of the matter, the finding of the learned Civil Judge that the suit is time-barred should be set aside. Accordingly, I do so and hold that the suit was filed within limitation.
6. Learned counsel for the appellant has strenuously urged that it has been clearly established on the record that the defendant managed to obtain the document in question from the plaintiff by misrepresentation and by practising fraud upon him. After having heard learned counsel for the parties on the question of fraud, I entertained a doubt regarding maintainability of the suit in the Civil Court as it appeared to me that the suit was virtually for declaration of the shares of the parties in an agricultural land in respect of which the parties are tenants. I, therefore adjourned the case for enabling the learned counsel for theparties to make their submission on thispoint.
7. After having heard learnedcounsel for the parties to-day on the question of jurisdiction I have come to the conclusion that the present suit lies in a Revenue Court and should not have been filed in a Civil Court. Learned counsel for the appellant invited my attention to two single Bench decisions of the Allahabad High Court: Mukhtar Ahmad v. Lachman Prasad, AIR 1929 All 845 (1) and Zabar Singh v. Baldeo Prasad, AIR 1952 All 922 in support of his contention that the suit was correctly instituted in the Civil Court. I have looked into these decisions and am of opinion that they are distinguishable.
8. In AIR 1929 All 845 (1) the plaintiff held a decree against a tenant of the defendant. What the tenant did was to get up a fictitious distraint by the defendant Zamindar and thereby fraudulently prevented the plaintiff from recovering the amount of his decree by selling the tenant's crop. The Subordinate Courts found that really no rent was due from the tenant to the defendant. In these circumstances, it was held that Section 181 of the Agra Tenancy Act, 1926 merely provides for the precedence of a rent claimed where distraint is genuine and does not afford any relief to a third person against a fraudulent distraint collusively brought about by a Zamindar against his tenants.
It was, therefore, held that the suit could not be brought under Section 181 of the Agra Tenancy Act. The observation made by the learned Judge in that case that 'where fraud or collusion is alleged and one person has derived benefit and another has lost by such fraud or collusion, the jurisdiction of the Civil Court certainly arises,' must be confined to the facts of that case, and cannot be pressed into service in all circumstances where fraud or collusion is alleged.
9. In the other case AIR 1952 All 922 the suit was instituted by the plaintiff tenant of an agricultural land for cancellation of a sub-lease in favour of the defendant on the allegation that it was voidable on the ground of fraud. It was held that the relief claimed in the suit could only be granted by the Civil Court and in the absence of the relief having been granted the Revenue Court could not grant any relief to the plaintiff.
In the present case the relief claimed in the suit is that the document dated 1-6-1958 in which the plaintiff had acknowledged that he had only one third share may be cancelled, apparently on the ground that the plaintiff had in fact half the share in the land in question. Issue No. 1 framed in the case is, 'whether the plaintiff had half share in the tenancy rights, in the land detailed inthe schedule annexed to the plaint.' It is well established that in order to determine the true nature of the relief claimed in a suit, the pith and substance, and not the form in which the relief may be couched has to be considered. On considering the pleadings in the plaint in the present case carefully and applying the doctrine of pith and substance of the pleadings. I have come to the conclusion that the relief claimed in the suit really amounted to a relief for a declaration that the plaintiff had half share in the land in question. The suit in the present case cannot be said to be one for mere avoidance of the document.
It may be noticed that according to the pleadings the document cannot be set aside, unless a clear finding is given on the first issue namely whether the plaintiff has half share in the land in question and not one-third as mentioned in the document itself. It cannot be said in the present case that unless the deed is cancelled the Revenue Court cannot give a declaration as to the extent of the share of the appellant in the land in question.
In the Allahabad case: AIR 1952 All 922 referred to above it was observed that unless a proper court cancelled the deed the Revenue Court could not ignore its effect and could not give a declaration as to the right of the appellant. That situation, however, does not exist in the present case. A reference to Section 38 of the Rajasthan Tenancy Act No. 3 of 1955 read with Item 5, Third Schedule appended thereto would clearly show that any person claiming to be a tenant may sue for a declaration that he is a tenant or for declaration of his share in such joint tenancy. Consequently the present suit clearly lay before a Revenue Court. The plaintiff has expressly indicated in the plaint that he intended that the Court should grant a declaration that he has got half share in the land. In this view of the matter, the suit should have been filed in the Revenue Court.
10. Learned counsel for the appellant submitted that the objection regarding jurisdiction was not taken up by the defendant at any stage of the litigation so far and therefore he must be deemed to have waived this objection. I am, however, unable to accede to this contention because the nature of the objection regarding jurisdiction in the present case goes to the very root of the matter and as I have held above there was lack of inherent jurisdiction in the Civil Court to try this suit, and grant appropriate relief on its basis. Such an objection, in my view, can be taken at any stage. Moreover, the decision of this question does not require any investigation into the facts.
11. The result is that I allow this appeal, set aside the judgments of thecourts below, and hereby direct that the plaint shall be returned to the plaintiff-appellant for presentation to the proper Court. In the circumstances of the case, I leave the parties to bear their own costs throughout.
12. Learned counsel for the appellant prays for leave to appeal to Division Bench. However I do not consider it a fit case for grant of leave. The prayer is disallowed.