SHER KHAN Vs. BAMBOO

JUDGEMENT

(1.) THIS is a plaintiff's appeal against the judgment of the learned Additional District Judge (2), Alwar accepting his appeal in part and modifying the order of the trial Court dated 21-2-77. The learned Advocate submits that this Miscellaneous Appeal is not maintainable, as it only challenges the order of the appellate court, and it should be treated as a revision. The learned trial Court had ordered the return of the plaint to the appellant and he preferred an appeal against that order to the Additional District Judge (2), Alwar, which was disposed of. Therefore, the order is reviseable. The prayer of the appellant is accepted and this Civil Misc. Appeal is treated as a revision and shall be disposed of as such.

(2.) THE dispute relates to agricultural land Khasra No. 803 measuring 2 Bighas & 4 Biswas situated in village Chandoli, Tehsil Alwar. THE petitioner claims himself to be the Khatedar of the land in dispute and he filed a suit in the Court of the learned Munsif, Alwar on 26. 4. 75 inter alia on the grounds that the order of the Assistant Collector dated 22 4. 73 is invalid and ineffective so far as his rights are concerned. I will later on have the occasion to deal with that order in detail. THE suit was contested by Bamboo, who claimed himself to be the Khatedar of the land in dispute and also pleaded that the order dated April 22, 1975 was passed by the Assistant Collector after hearing the petitioner, and an appeal lies against that order under s. 225 of the Rajasthan Tenancy Act 1955 (hereinafter referred to as the Act ). THE suit was, therefore, barred under S. 256 of the Act as the suit was exclusively triable by a revenue court under S. 207 of the Act read with Schedule III, item No. 83.

(3.) KHASRA No. 403 measuring 2 Bighas & Biswas situated in Gram Chandoli is agricultural land. Cases were pending in between the parties relating to this land in revenue courts, and the Revenue Board vide its judgment dated 15. 4. 75 in Criminal Revision to which the petitioner and the non-petitioner (1) were parties directed that the receiver shall take back possession of the land in dispute from the petitioner to whom the possession had been delivered under the order of the Revenue Appellate Authority, and shall deliver the possession to such of the parties from whom the possession was taken in execution of the orders dated 7-11-74. After these orders of the Board of Revenue, the Assistant Collector, the original court, where the suit was pending, passed the order dated April-22, 1975 that the possession of the land in dispute be taken from Sherkhan by the receiver and should be delivered to the non-petitioner (1) Bamboo from whom it was taken. The petitioner preferred an appeal against that order of the Revenue Appellate Authority, and a revision was also preferred by him in the Board of Revenue. The Board of Revenue passed an order on 26 5. 75 to the effect that the Tehsildar should take possession from Sherkhan and keep it to himself till an enquiry is held. The petitioner after having filed the appeal and also a revision in the Board of Revenue, and after securing the above mentioned order and concealing this fact, filed a suit for a declaration that the order of the Assistant Collector dated April 22, 1975 was invalid and ineffective so far as his interests are concerned for the reasons mentioned in para 5 of the plaint.