D.S. Dave, J.
1. These are sixteen applications in revision by the same defendant against whom sixteen plaintiffs have brought separate suits for possession of agricultural lands in the court of the learned Civil Judge, Bhilwara. The facts of these cases are quite similar and since only one common question of law is involved in all of them, they are disposed of together.
2. Each one of the plaintiff non-petitioner has averred in his plaint that he was in possession of a particular plot of agricultural land in village Gadarmala (which is also known as Bhopalgarh) from the time of his ancestors. Each one has given a description of his field in dispute and it need not be mentioned here. It has been averred by all the plaintiffs that the defendant started making unlawful encroachment on their fields in the month of Kartik Samwat 2010 and ultimately in the month of Kartik Samwat 2011, he unlawfully ploughed their fields with a tractor.
This led to a dispute between the plaintiffs and the defendant and the police, Bhilwara started proceedings under Section 145 of the Criminal Procedure Code against both the parties. The Magistrate attached the fields in dispute pending the enquiry and later on restored their possession to the defendant. It was asserted that the fields in dispute were their 'Bapi' and they were in their possession from the time of their ancestors and, therefore, each one of the plaintiffs prayed for a decree against the defendant directing him to restore the possession of the disputed field to him.
3. The defendant contested the plaintiffs claims and one of his objection in each case was that the suit was triable exclusively by the Revenue court and so the Civil court had no jurisdiction to try the same. This objection was turned down by the trial court on the ground that each suit was based on title and, therefore, it had jurisdiction to entertain and try it. The petitioner has challenged the correctness of this order passed by the trial court in each case. It would thus appear that the only point for determination in each one of the above noted cases before this court is 'whether the suit is triable exclusively by a Revenue Court and, therefore, the Civil court has no jurisdiction to try the same?'
4. A preliminary objection has been raised by learned counsel for the non-petitioners to the effect that the revision application does not lie in view of the judgment of the Full Bench of this Court in Swaroop Narain v. Gopinath, ILR (1.953) Raj 483: (AIR 1953 Raj 137). In that case, it was decided that where it is open to a party to raise a ground of appeal in High Court under Section 105 of the Civil Procedure Code from the final decree or order with respect to any order which has been passed during the pendency of the case it should be held that an appeal in that case lies to the High Court within the meaning of the term 'in which no appeal lies thereto' appearing in Section 115 of the Civil Procedure Code.
The result is that revision would not be competent against an order passed during thependency of suit or proceeding if such order can be challenged in High Court under Section 105 of the Civil Procedure Code in first or second appeal (to High Court) from the final decision of the suit or the proceedings. It is only when the order in question cannot be challenged in High Court whether in first or second appeal or even by way of a ground under Section 105 in appeal from the final decision of the case that it can be said that no appeal lies to the High Court and it should, therefore, exercise its jurisdiction under Section 115 of the Civil Procedure Code. On the basis of the above views it has been urged by learned counsel for the non-petitioners that the question regarding jurisdiction of the civil court can be agitated before this Court in second appeal by virtue of Section 105 of the Civil Procedure Code and, therefore, the present revision applications are incompetent. I have given due consideration to this argument and I think it is not tenable in view of the provisions of Sections 244 and 245 of the Rajasthan Tenancy Act, 1955 (hereinafter called the Act) which run as follows:
'244, Plea in appeal that suit was instituted in wrong court. -- When in a suit instituted in a civil or revenue court an appeal lies to a civil court, an objection that the suit was instituted in the wrong court shall not be entertained by the appellate court unless such objection was taken in the court of first instance and the appellate court shall dispose of the appeal as if the suit had been instituted in the right court.'
'245. 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.'
5. It would appear from a perusal of Section 244 that according to its provisions, an objection to the effect that the suit has been instituted in the wrong court must be taken in the court of first instance if it is a suit in which an appeal lies to a civil court. If such objection is not taken in the court of first instance, the appellate court will dispose of the appeal as if the suit had been instituted in the right court. In the present case, this objection has been taken in the court of first instance and, therefore, it can be agitated in the appellate court.
But Section 245 lays clown that if there is a suit of the nature indicated in Section 244, then, even though such objection might have been taken in the court of first instance, if the appellate court has before it, all the material necessary for the determination of the suit, it must dispose of the appeal as if the suit were instituted in the right court. It is clear from this provision that the objection about jurisdiction becomes infructuous if the appellate court can dispose of the appeal on merits and if it has all the material necessary before it for the determination of the suit. This would clearly indicate that even if an objection is raised before this court in second appeal, it would be meaningless.
6. Learned counsel for the non-petitionershas urged that under Sub-section (2) of Section 245, the appellate court has the authority to send the case to the court in which a suit ought to have been properly instituted. This argument is correct to the extent that the appellate court while remanding the case may send it to a court which is competent to try the same, but this can be done only if the appellate court has not before it all the material necessary for the determination of the suit and if it has to frame new issues or additional evidence is required. In other words, if a remand is not necessary such an order need not be passed. The reasons given in Purohit Swaroop Narain's case, ILR (1953) Raj 483: (AIR 1953 Raj 137 (FB)) would not, therefore, apply to the present case and to my mind, the revision application is not incompetent.
7. Now coming to the petitioner's contention it has been urged by learned counsel that although the non-petitioners have not specifically asked for a declaratory decree about their rights as tenants, what they actually mean is to get a decision from the Civil court that they had Bapidari tenancy in the disputed lands. Similarly, although they have not mentioned the petitioner as a trespasser in their lands, their allegation in fact is that the petitioner had trespassed on the lands without any right and, therefore, they want to get him ejected. It is pointed out that, their claim is thus covered by Sections 88, 89 and 183 of the Act, that they can get all the relief which they want from the revenue court and that the suit is therefore, not maintainable in the civil court because of the provisions of Section 207 of the Act.
8. Section 207 of the Act runs as follows:
'207 (1) All suits and applications of the nature specified in the Third Schedule shall be heard and determined by a revenue court.
(2) No court other than a revenue court shall take cognizance of any such suit or application or of any suit or application based on a cause ot action in respect of which any relief could be obtained by means of any such suit or application.'
9. It is clear from the wordings of this section that it vests exclusive jurisdiction in the revenue court to hear and determine all suits and applications of the nature which are specified in the Third Schedule thereof. The words 'of the nature' used in Sub-section (1) further show that i a suit or application is in substance of the nature specified in the Third Schedule, then they should be heard and determined by a revenue court. The legislature has not stopped short by saying suits and applications specified, but it has also added the words 'of the nature', so that the court should look to the substance and not merely to the form of the suit or application.
Then, Sub-section (2) further makes it clear that if the suit or application is based on a cause of action in respect of which any relief can be given by means of that particular suit or application, then no court other than a revenue court should take cognizance of such suit or application. A further explanation has been added to Sub-section (2) to clarify the doubts about those causes of action in respect of which a relief may be granted partly by a revenue court and partly by a civil court. It has been laid down that if the cause of action is such a one that a revenue court is able to grant relief in respect thereof, then it does not matter if the relief asked for from the Civil court is greater than or additional to, ornot identical with, that which the revenue court could have granted.
We have, therefore, to see whether the suit in the present case is of a nature which comes within the ambit of any provision made in the Third Schedule and whether the suit is based on a cause of action in respect of which the plaintiffs can obtain relief from a revenue court.
10. Learned counsel for petitioner has referred to Sections 88, 89 and 183 for which the corresponding serial Nos. in the Third Schedule are 5, 6 and 23. Section 88 deals with suits for declaration of the plaintiff's right as a tenant or as a tenant of Khudkasht or as a sub-tenant or for a share in a joint tenancy. Section 89 provides for suits for declaration as to the class of tenancy, areas or boundaries of holdings etc. In the present case, the plaintiffs have not asked for any declaration. Whether they should have asked for a declaration or not is not a point for determination before his Court, because the matter has come in revision and the only question for decision is about the jurisdiction of the trial court to entertain and decide the suits.
This court is, not called upon to decide at present whether the plaintiffs should have also asked for declaration or not. Therefore, it would suffice to say that Sections 88 and 89 of the Act are not applicable to the suits as they are framed at present. The only question for determination which therefore remains is whether these suits are covered by Section 183 of the Act and serial No. 23 of the Third Schedule. Section 183 and serial No. 23 read as follows:
'183. (1) A trespasser shall, notwithstanding anything to the contrary in any provision of this Act be liable.
(a) If he has taken or retained possession of any land without lawful authority, to ejectment on the issue of a notice by the Tehsildar in case of land held directly from the State Government and in other cases on the suit of the person or persons entitled to admit as tenant and also to pay as penalty for each agricultural year during the whole or any part whereof he has been in such possession a sum which may extend to six times the annual rent, and
(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.
(2) In either case such trespasser shall, upon payment of the penalty or damages, as the case may be, have the right of tending, gathering and removing any ungathered crops.' THE THIRD SCHEDULESerial No.Section ofActDescription of suit, application or appeal.Period oflimitation.Time from which period begins to run.Proper court-fee.Court officer competent to dispose of.23183Suit for ejectment of trespasser.12 years.When the cause of action arises.8 as.Asstt. Collector.
11. It would appear from the perusal of the language of Section 183 that it deals with suits for ejectment of trespassers. It is further clear from serial No. 23 of the Third Schedule that the limitation provided for such suits is 12 years from the date of the accrual of the cause of action and if the suit comes within Section 183, it should be instituted in the court of the Assistant Collector and it is exclusively triable by a revenue court.
12. Learned counsel for petitioner has pointed out that all the plaintiffs have alleged in their plaints that they were 'Bapidors', that they were in possession of the disputed lands for a long time, that the defendant had started trespassing on their lands from Kartik, Samwat 2010, that he had finally trespassed on their lands in Kartik, Samwat 2011 and the cause of action arose in the month of Kartik, Samwat 2011.
It is contended by him that the plaintiffs' allegation against the defendant is that the defendant had taken possession of their lands without any lawful authority and they want his ejectment for that reason. It is further argued that although the plaintiffs have avoided the use of the word 'trespasser' in their plaints, their real allegation is that the defendant is a mere trespasser, that the suits are thus covered by Section 133 of the Act and they should have been filed in a revenue Court. Learned counsel for non-petitioners (plaintiffs) contends, on the other hand, that although the defendant had trespassed on the plaintiffs land in Kartik Samwat 2010 and Kartik Samwat 2011, but that trespass led to a dispute between the parties and the Magistrate had to take proceedings against, both the parties under Section 145 of the Code of Criminal Procedure.
The Magistrate had also attached all the landsin dispute during those proceedings. Then, after going through the evidence of both the parties the Magistrate came to the conclusion that the defendant was in possession of the disputed lands on the date of the preliminary order and so he restored the possession of the lands to the petitioner. The possession o the lands having been given to the petitioner by the Magistrate, it could not be said that the petitioner had taken or retained possession of the lands without lawful authority and, therefore, Section 183(1)(a) does not come into play.
13. I have given due consideration to these arguments and, in my opinion, the contention raised by learned counsel for the non-petitioners is not tenable. If his argument is accepted, then it would mean that a landlord, on whose land a trespass is made by some person without lawful authority can file a suit in a revenue court it proceedings under Section 145 Cr. P. C. in respect of the disputed land are not taken by the Magistrate, but if such proceedings are taken by the Magistrate, then the revenue court looses its jurisdiction and only a civil court can entertain the suit thereafter.
Such intention on the part of the legislature is not borne out by the language of Section 183. It may be observed that in proceedings under Section 145 Cr. P. C. a Magistrate is only required to give a finding as to which of the disputed parties was in possession of the immovable property on the date of the preliminary order. If the Magistrate finds that a party was forcibly and wrongfully dispossessed within two months prior to the date of the preliminary order, then he may treat that party as being in possession of the disputed land at the date of the preliminary order and may restore the possession of the land in dispute to that party.
But these proceedings are taken by the Magistrate only to prevent breach of the peace and maintain law and order. He is not concerned with the title of the parties about the land. Similarly, he cannot help declaring even a trespasser entitled to possession of the disputed land or disputed immovable property, if he finds that the trespasser has been in possession of that property for more than two months prior to the date of the preliminary order.
In other words, he has to maintain the possession even of a trespasser if he happens to remain in possession of the disputed property for more than two months prior to the date of the preliminary order. The Magistrate's order under Section 145 Cr. P, C., therefore, does not change the nature of the possession of a trespasser and a party approaching a civil or revenue court may still contend in spite of the Magistrate's order under Section 145 Cr. P. C. that the opposite party had taken or retained possession of the disputed property without lawful authority and thus trespassed on the plaintiff's property. Section 145 (6) Cr. P. C. lays down that if the Magistrate declares any party to be entitled to possession, he should also declare that it will not be evicted there from except in due course of law.
The aggrieved party can take the course of law either in a civil court or in a revenue court as the remedy is provided by statute. That is to say, Section 145 Cr. P. C. does not lay down that the aggrieved party must go to a civil court and that it cannot approach a revenue court. It may be pointed out that the non-petitioners have in their respective claims still stated in spite of the Magistrate's order under Section 145 Cr. P. C. that the defendant had started trespassing on their lands in Samwat 2010 and that he had finally trespassed on them in Samwat 2011. Their allegation against the defendant is certainly that of a trespasser, and since they have filed their respective suits for ejectment of the trespasser, their suits do come within Section 183 of the Act.
14. Learned counsel for non-petitioners has urged that if the present suits are held maintainable under Section 183 of the Act, a serious question of limitation may arise, because the limitation for a suit under Section 183 is 12 years while the limitation for a suit under Article 47 of the Indian Limitation Act by a person, bound by an order, respecting the possession of immovable property made under Section 145 Cr. P. C., is three years from the date of the final order in the case. In my opinion, this objection is also not tenable in view of the provisions of section 29 of the Indian Limitation Act.
Sub-section (2) of Section 29 lays down that if any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of Section 3 shall apply as if such period were prescribed therefor in that Schedule. This sub-section embodies the general principle enunciated in that well known maxim --'generalia specialibus non-derogant', which means that general provisions do not derogate from the special. The period laid down in suits under Section 183 under the Act i.e., for suits relating to agricultural land will be 12 years from the date of the accrual of cause of action while suits which will be filed in civil courts about other kinds of immovable property and to which Article 47 of the Indian Limitation Act would be applicable, would be 3 years from the date of the final order. The mere fact that a different period of limitation is given in Article 47 of the Indian Limitation Act would not take away the jurisdiction of the revenue courts to entertain and decide the suits filed under Section 183 of the Act.
15. Learned counsel for non-petitioners has urged in the end that Section 183 of the Act corresponds to section 180 of the U. P. Tenancy Act (Act No. 17 of 1939) and the view which prevails in U. P. about this section is different from that suggested by petitioners learned counsel. Learned counsel has referred to D. N. Rege v. Kazi Muhammad Haider, AIR 1946 All 379 in this connection. In that case, it was held:
'that the distinction between an ordinary suit against a trespasser in a civil court and a suit under Section 180 U. P. Tenancy Act, 1939 is, that the plaintiff in the first case alleges that the defendant is setting up a title against his proprietary interest whereas in the second case the plaintiff alleges that the defendant is setting up a title to hold the land as a tenant.''
The said view was taken on the ground that in the U. P. Tenancy Act, 1939, there was Sub-section (2) in Section 180, which ran as follows.
'(2) If no suit is brought under this section or a decree obtained under this section is not executed the persons in possession shall on the expiry of the period of limitation prescribed for such suit or for the execution of such decree, as the case may be become a hereditary tenant of such plot or plots.'
16. Referring to this sub-section, it was observed that 'this sub-section applies to persons who are setting up a claim to an interest in the land as tenants and not to persons who are setting up an interest as proprietors. The legislature could surely not have intended that a person who never claimed to be a tenant at all, should, by the failure of the proprietor to sue or to execute a decree for ejectment under Section 180, obtain the rights of an hereditary tenant.' It is, thus, clear that the learned Judges were led to adopt the view which they took, in the above case, on account of the presence of Sub-section 2 in section 180 of the U. P. Tenancy Act, 1939, and it is doubtful if they would have taken the same view, if Sub-section (2) were not present in Section 180.
This doubt is confirmed, because when the learned Judges were faced with an argument, whether the jurisdiction of a court would depend upon the defence set up after the suit is instituted, they proceeded to say that the jurisdiction of a court does not depend upon the defence which is set up after the suit is instituted, but upon the state of affairs which existed before the institution of the suit.
They further proceeded to absolve the difficulty by observing that the plaintiff should, as far as possible, ascertain the facts before he files a plaint and if he has reason to believe that the defendant was setting up a proprietary title, he would rightly institute a suit in the civil court. With respect, it may be submitted that it is not difficult to visualise the situation in which the defendant may not disclose, in spite of a notice to him, whether he sets up the proprietary title or takes the plea of tenancy or any other plea to support the trespass alleged against him.
In ' such a case, the plaintiff would be in a fix whether to file a suit in a civil court or a revenue court. Happily, that difficulty has been removed by the legislature of this State in enacting Section 183, because there is no provision therein corresponding to Sub-section (2) of Section 180 of the U. P. Tenancy Act, 1939. I have not been referred to any other provision on account of whichit may be necessary to hold that Section 183 would apply only for ejectment of those trespassers, who set up a title to hold the land as tenant and not against those, who set up a title against the plaintiff. To my mind, all suits for ejectment of trespassers in respect of agricultural land are according to the provisions of Section 183 triable by a revenue court irrespective of the fact whether the defendant sets up his own proprietary title or he sets up his possession as a tenant.
In case, a question of proprietary right in respect of the land forming the subject of dispute arises in such a suit, and if such a question has not been previously determined by a civil court of competent jurisdiction, the revenue Court should frame a issue on that question of proprietary right and submit its record to the competent civil court for the decision, of that issue under Section 239 of the Act. The Civil Court would not take cognizance of such suit on account of the provisions of Section 207 of the Act and the suit will have to be heard and determined by the revenue court only.
17. In the view which has been taken above, the present suits are not triable by the Civil Court and they should be instituted in a revenue court. The revision, applications are, therefore, allowed, the order of the trial court in each case about its jurisdiction be set aside, the cases be returned to the trial court with the direction that the plaints should be returned to the plaintiffs to be instituted in the proper revenue court.
18. In view of the fact that the question ofjurisdiction was not free from difficulty, theparties are left to bear their own costs in both thecourts.