DEVA Vs. NAWLA

JUDGEMENT

(1.) THIS is a second appeal by defendants Deva and others in a suit for a declaration in respect of a right of way. The plaintiffs describe themselves as the representatives or Mukhias of the entire cultivators of village Nayagaon, and instituted the suit out of which the present appeal has arisen on the allegation that they enjoyed from time immemorial a right of way from their village to the Mohadamate jungle over which they used to carry their bullock carts etc. without any obstruction from the owners of the neighbouring fields. The plaintiffs further allege that the said way lay through some of their own fields viz, Nos. 521, 525, 520 and 539/1050 and went on to the limits of their own village and thereafter passed through the fields of the defendants, Nos. 350-362, 351, 227, 226 and joint No. 147. The contention of the plaintiffs was that the defendants Dhula and four others had started cultivation on Nos. 225, 226, 362, 350 and 351, and thereby obstructed their way and consequently they prayed for a declaration that they were entitled to use their old right of way without any obstruction on the part of the defendants. The plaintiffs filed their suit on 12th February. 1946, and the Munsiff Mandalgarh decreed it by a judgment dated 14. 11. 51. It is not necessary to state at length either of the defence or other facts relating to this case in view of the order I propose to pass. An appeal was taken from the judgment of the learned Munsiff to the court of the Civil Judge, Bhilwara, who upheld the decree of the trial court by his judgment dated 6. 11. 52. The appeal is directed against the above judgment and decree.

(2.) IT is contended by learned counsel for the defendant-appellants that the present suit was of a revenue nature, and the civil court had no jurisdiction to take cognizance of it. The argument of learned counsel was that the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act (No. 1) of 1951 had come into force on 31st January, 1951, and that the present suit fell within serial No. 25, Group B of the First Schedule of that Act, and, therefore, this suit was covered by sec. 7 of the said Act, and no other court than a revenue court was competent to take cognizance of it. IT was further contended that under sec. 6 (3) of the said Act, it was the duty of the learned Munsiff to have transferred this case to a court competent to try it under sec. 12 of the said Act.