D.P. Gupta, J.
1.This revision application has been filed against the order passed by the learned Additional Civil Judge. Jodhpur, holding that the civil court has jurisdiction to try the suit filed before him. The argument of the learned Counsel is that suit is exclusively triable by a revenue court and the civil court has no jurisdiction to entertain or decide the same.
2. I have read the plaint with great care and attention. The case of the plaintiff in a nut shell is that the land in dispute was left as 'Agor land' for the benefit of the general public and it was a common land of village people and as such, no khatedari rights could have accrued or could have been granted in the and in dispute. According to the plaintiff the land has been used since times immemorial as 'Agor land', that is, land necessary for the flow of water thereon into a reservoir or tank, used for drinking water for the village. The petitioner has sought a declaration to the effect that the land in dispute is un cultivable 'Agor land' and no tenancy rights could be created therein, in favour of the defendants and that such land vests in the plaintiff namely, the Gram Panchayat, Agolai.
3. It is well settled that the question of jurisdiction hat to be decided on the basis of the averments made in the plaint. It is of course true that not only the relief claimed in the plaint but all the allegations made therein should be taken into consideration for the purpose of deciding the question as to whether the suit is exclusively triable by a revenue court or not. The court must be guided by the substance of the plaint and not merely by its form. Therefore, in order to arrive at a correct conclusion on the question of jurisdiction, the substance of the plaint must be taken into consideration to find out the true nature or the object of the suit. From a reading of the plaint as a whole, it appears that the plaintiff case is based on the averment that the land in dispute is not agricultural land as defined in sub-Section (24) of Section 5 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as 'the Act') and on the allegation that the said land was used since times immemorial for the flow of water into a tank or reservoir, which water is used for drinking purposes by the people of the village & on that basis, the plaintiff claims that no tenancy rights of any nature either khatedari or khudkasht, could accrue or be created in or over such land Clause 14 of Section 16 of the Act provides that no khatedari rights shall accrue in any land which is necessary for the flow of water thereon into any reservoir or tank used for drinking water for a village, or for surrounding villages. If the land in dispute is of the nature specified in Clause 14 of Section 16 of the Act and if the allegations made in the plaint in this respect are ultimately found to be true, then it is beyond controversy that khatedari rights could neither accrue nor be created in such land and in that event such land could not be used for agricultural purpose or for purposes subservient or ancillary thereto. Sub-section (24) of Section 5 of the Act defines 'land' for the purposes of the Act, as including land let or held for agricultural purposes or for purpose subservient thereto or as grove land or for pasturage or land covered with water, which may be used for the purpose of irrigation or growing 'Shinghara' or other similar produce, but excluding Abadi land.
4. learned Counsel for the petitioner submitted that the suit was triable by a revenue court and was covered by the provisions of Section 91 of the Act, which is a residuary provision relating to suits for declaration which should be filed in revenue courts Section 91 of the Act. provides that any person may sue for declaration of 'all or any of his rights conferred by this Act' and not otherwise provided for.' Now, the important question is as to whether the declaration that has been sought in the present suit is in respect of any right conferred by the Act? The right of natural flow of water to a reservoir or tank, which water may be used for the purpose of drinking by the residents of the village is not a right created by any of the provisions of the Act. Such land is neither used for agricultural purpose nor it is used for any purpose related thereto and it could not be considered as falling within the meaning of 'land as defined in Section 5 of the Act. For the purposes of bringing a suit within the four corners of Section 91 of the Act. there must be some right, which has been conferred by the provisions of the Act. in respect of which a declaration is sought in the suit In the absence of any such right being created by the Act. a declaration in respect thereof cannot be granted by a revenue court.
5. learned Counsel for the petitioner placed reliance upon the decision of this Court in Gilla v. Sugan Singh and Anr. ILR (10) Raj. 1589 wherein it was held that in deciding the question about the jurisdiction of the court, the substance of the plaint should be taken into consideration and not merely its form. There can be no doubt about the aforesaid proposition laid down in that case. However, the decision in Gilla's case ILR (10) Raj. 1589 has no application to the facts of the present case in as much as that case related to the right of irrigation from a well and as the question of irrigation of agricultural land was involved in that case, it was held that the well was used for agricultural purposes or purposes subservient thereto or connected therewith. No. such question relating to irrigation of agricultural land arises in the present case. Another decision relied upon by the learned Counsel for the petitioner is in the case of Asala v. Narain 1963 RLW 323. Again the principle laid down in this case is undisputed namely, that the guiding test for deciding the question of jurisdiction is to find out what is the true nature of the suit or to find out the object of the suit, as disclosed by the allegations contained in the plaint. In that case, this Court found that what the plaintiff really sought was to establish his right as a tenant of the land in dispute and as such it was held that the suit was triable by a revenue court. However, in the present case, the plaintiff in substance seeks to obtain a declaration to the effect that the land in dispute was a common land left as 'Agor land' since times immemorial, in which no tenancy rights could accrue or be created. According to the plaintiff, as I have already mentioned above, the land in dispute was 'Agor land' required for the flow of water thereon into the reservoir used for drinking purposes by the village people from times immemorial and in case the plaintiff succeeds in establishing his case, then on account of the provisions of Clause (14) of Section 16 of the Act. Khatedari rights could neither accrue nor be created in such land. The case in hand would be governed by the principle enunciated by a Division Bench of this Court in Nanu Ram v. Board of Revenue for Rajasthan 1967 RLW21. It has been laid down in that case that the determinative factor regarding the jurisdiction of the revenue court in such cases is that any of the rights claimed should be said to have been conferred by the Act. It cannot be said that the right claimed by the plaintiff in the present suit is one which has been on-furred by the Act. On the other hand, the case of the plaintiff is that the land in dispute is not agricultural land at all & is not used even for any purpose connected with agriculture. According to the allegations made in the plaint, even the water that flows over the land in dispute is used for drinking purposes by the people of the village Agolai. It must be remembered that the jurisdiction of civil court to try a suit cannot be lightly interfered with or taken away unless such an inference is raised by an express provision of law or by necessary implication. Having considered the averments made in the plaint as a whole, I am firmly of the view that the suit is triable by a civil court, as it does not clearly fall within the purview of Section 91 of the Act. There is, therefore, no reason for this Court to interfere with the order passed by the trial court.
6. For the persons mentioned above, the revision petition is dismissed, The parties are left to bear their own costs.
7. The suit was filed in February 1969 and as it has already remained pending in the trial court for a sufficiently long time, the trial court is directed to dispose of the suit expeditious.