RUDA Vs. RAMDEV

JUDGEMENT

(1.) This second appeal has been filed by the defendants against whom the respondents suit for recovery of possession over the land in dispute was decreed by the trial court, the first appellate court having held the same.

(2.) We have the learned counsel for the parties and have examined the record as well. In our opinion, the suit as it stands is clearly beyond the cognizance of a revenue court. The averments in the plaint are that plaintiffs obtained a Patta of the land in dispute on 4 -12 -47 and on 15 -1 -48 they proceeded to cultivate the lands but were not allowed to do so by the defendants. This obviously shows by implication that the defendants were in possession on the date of alleged dispossession. The plaintiff Badri in his statement recorded in the trial court on 14 -5 -52 has further clarified the point by stating that when Patta was granted to him the land was in possession of Ruda etc. and that he had never been in possession over it. In other words, the plaintiffs claim for recovery of possession is based on the ground that the grant of Patta makes them rightful persons to claim possession and the defendants should therefore be treated as continuing wrongfully in possession as trespassers. Technically speaking, a person who enters upon the land unlawfully ab -initio and a person who enters the land lawfully but continues in possession unlawfully subsequently are trespassers. But as held by the Rajasthan high Court in a decision reported in 1955 R. L. W. 23, Article 10 Group II Schedule I of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act provides for a suit to lie in a revenue court in case a person who unlawfully takes possession of the land and not for a suit in the case of a trespasser of the second kind. Such a case is not covered by any of the articles in the schedule and the civil court have not been ousted of the jurisdiction to try a case of this nature. This suit was pending before the trial court when the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act came into force. It should have therefore been transferred to a civil court under Sec. 6 (4) of the Act. We would, therefore, allow this appeal, set aside the orders of the lower courts and remand the case back to the court of first instance with the direction that action as indicated above should be taken in the case for transfer to a Civil Court.