KHAYALI Vs. NATHI

JUDGEMENT

(1.) THIS is a reference by the learned Civil Judge of Bharatpur.

(2.) A suit was instituted by Khayali and Ganeshi against Nathi and others in the court of Tehsildar, for a declaration of their proprietary rights in respect of an agricultural land measuring 19 Bighas and 11 Biswas situated in village Pingora, which they alleged was held by them as mortgagees for a period of over 60 years. Some of the defendants contested the suit, and the trial court dismissed it on 29th November, 1947. The plaintiffs filed an appeal, and the Assistant Collector of Bharatpur set aside the decree, and gave a decision in favour of the plaintiffs. A second appeal was preferred, and the court of Additional Commissioner, Alwar, restored the decree of the trial court on the 9th of February, 1951. On revision to the Board of Revenue, the suit was remanded for a fresh trial after adding Mogli as a defendant in the suit. The case would have been tried afresh by the Assistant Collector, Bharatpur, but it was transferred to the court of Civil Judge under instructions of the Additional Commissioner, as a question of title could only be agitated in a civil court. The learned Civil Judge of Bharatpur has made this reference. He has observed that on the coming into force of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, (Act No. I of 1951) on the 31st January, 1951, the revenue courts had on jurisdiction to hear and decide the proceedings before them, and, therefore, the order of the Additional Commissioner, dated 9th February, 1951, and of the Revenue Board, dated 4th September, 1951, were without jurisdiction, and in that case the order of the Assistant Collector, Bharatpur, dated 13th June, 1949, remained unchallenged. The view taken by learned Civil Judge is not correct. The disposal of pending cases is provided by sec. 6 of Act No. I of 1951, and sub-sec. (4) of sec. 6 provides for transfer of suits and proceedings pending before a revenue court and not triable by it, to the civil court having jurisdiction to try, hear and determine the same. Appeals and revisions are, excluded from the purview of sec. 6 (4), and, therefore, the appeal pending before the Additional Commissioner was rightly disposed of by him on the February, 1951. A revision against the decision of the Additional Commissioner could only lie to the Board, and therefore, the Board also had jurisdiction to dispose of the matter before it. The case having come back to the original court, it could be transferred under sub-sec. (4) of sec. 6 of the Act to the civil court by a fiction of law that it was pending in the original court on the date of enforcement of Act No. I of 1951.