BODIYA Vs. JIVNA

JUDGEMENT

(1.) This second appeal has been filed by the defendant against whom the respondents suit for pre -emption was decreed by the trial court, the learned Additional Commissioner confirming the same in first appeal.

(2.) We have heard the learned counsel appearing for the parties and have examined the record as well. The suit was filed in the court of the Assistant Collector, Shahpur, on 26 -9 -50 in respect of agricultural land bearing Khasra numbers 120,507,514 etc. in village Fatehpura, Tehsil Kotputli. The plaintiffs, Jivna,Onkar and Ghisa claimed pre -emption over the land sold by Gada vendor in favour of Boda vendee, on the basis of law and custom". The trial court holding that the suit was governed by sec. l l(2)(ii)of the Jaipur Tenancy Act, and items No. 1, Group B. Schedule II of the Rajasthan Revenue Courts (Procedure and jurisdiction) Act, proceeded to try the same and after enquiry granted a decree in favour of the plaintiffs. The learned Additional Commissioner, after observing that no grounds, as would justify interference with the decree of trial court, have been mentioned in the memorandum of appeal dismissed the same. The main contention raised on behalf of the appellant before us is that the suit was beyond the cognizance of a revenue court. The learned counsel for the respondent has conceded this argument to a certain extent. It has been admitted by him that the Khatedari Revenue Manual, 1937, prescribing the rights and liabilities of the Zamindars and Biswedars makes no mention of pre -emption. Chapter I of Part I of the said Manual imposes certain restrictions upon transfers by Biswedars and transfers in contravention of those provisions have been declared to be null and void and the transferees acquire no rights in the land (set. 6 of the Manual). It has not been disputed that what was said in the present case was a Biswedari right. The learned counsel for the respondent has, however, argued that as the rights of transfer are almost identical in the case of a Pattedar tenant and a Biswedar the provisions of sec. 11 of the Jaipur Tenancy Act, 1945, should be analogy be hold applicable to the transfers affected by Biswedar. We find ourselves unable to subscribe to this view. The right of pre -emption was created for Pattedar tenants by the Jaipur Tenancy Act. It cannot be held applicable to Biswedars of Kotputli area or any other area merely on the ground that some of the rights of the Pattedar tenants and Biswedars in other areas are similar or equivalent. There is no provision in the Rajasthan Tenancy Act, 1955, whereby suits for pre -emption on any ground whatsoever may be tried by a revenue court. In the Jaipur Tenancy Act and the Rajasthan Revenue Courts (Procedure and Jurisdiction)Act,which now stands repealed by the Rajasthan Tenancy Act, 1955, a provision for such suits was to be found only in respect of pre -emption of the Pettedars interest. Obviously this suit does not answer to this description as it is a suit for pre -emption of a Biswedar or Zamindars interest. It was beyond the competence of a revenue court when it was presented and is so even now. We would, therefore, allow this appeal, set aside the decrees and judgments of the lower court sand direct that the plaint after endorsing necessary particulars thereon be returned by the trial court to the plaintiffs for presentation to a competent court.