JIT SINGH Vs. HAKIM SINGH

JUDGEMENT

(1.) THIS is the unsuccessful plaintiff's second appeal whose suit for partition of an estate has been dismissed by both the lower courts on the ground that the appellant's title to sue had become barred by adverse possession.

(2.) WE have heard the learned counsel appearing for the parties and have examined record as well. In view of the order that we are making in the case we consider it unnecessary to express any opinion upon the merits at this stage. Suffice to observe that the present suit for partition was filed before the Assistant Collector on 3-6-1952 and was dismissed by him on 19-10-1953. The Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, came into force on 31st January, 1951. The present suit stands covered by item No. 1 Group A, Schdl. I of the Act which was triable by a Collector. Subsequently the Government of Rajasthan vide notification No. 22/37. Rev. 1/53, dated 4th November, 1953 conferred on all Assistant Collectors the powers of a Collector by try suits for partition. It will thus be seen that prior to this notification i. e. 4-11-1953 the Assistant Collector Karanpur who tried the suit had no jurisdiction in the matter and the decision awarded by him is a complete nullity. The decision of the lower courts are, therefore, liable to be set aside on this ground alone. As the case will be re-tried we would like to observe for the guidance of the lower courts that in this case a question of adverse title which trenches upon the plaintiff's right to sue was raised by the defendants and as this question has not already been determined by a court of competent jurisdiction the provisions of sec. 36 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, will apply. WE would, therefore, allow this appeal, set aside the orders of the lower courts and remand the case to the court of the Assistant Collector, Karanpur with the direction that it be tried and decided afresh in the light of the observations made above. .