GULAB BAI Vs. CHAMAN SINGH

JUDGEMENT

(1.) THIS is a second appeal against the decree of the Revenue Appellate Authority, Udaipur, whereby the decree passed by the Assistant Collector, Udaipur, in favour of Chaman Singh, plaintiff respondent, was upheld. Chamansingh, plaintiff-respondent, had brought a suit: for permanent injunction against Gulab Bai, Jujar Singh and others, stating that he was in exclusive possession of the suit land and that the defendant appellants had threatend to take forcible possession of it. Chamansingh, plaintiff respondent claimed to be the adopted son of Devi Singh, deceased, the previous cultivator. Mst. Gulab Bai widow of Devi Singh denied that Chamansingh was the adopted son of her husband and instead she supported the claim of Jujar Singh, whom she had herself adopted by a registered document. The lower courts held that Chaman Singh, plaintiff respondent, was in possession, and that he was the khatedar tenant being recorded as such in the revenue papers. On this evidence, the suit of Chaman Singh, plaintiff respondent, for the grant of a permanent injunction to restrain the defendants from interfering with his possession of the suit land, was decreed. It may be mentioned here that although Mst. Gulab Bai had joined in the first appeal against the decree of the trial court, she has now withdrawn her second appeal and the claim of Chaman Singh is contested only by Jujar Singh.

(2.) IT has been urged in this second appeal that the question of adoption is a question of status and in that sense, it involves the determination of a proprietary right. On this basis, an argument has been built up that the revenue courts could not have decided the question whether Chaman Singh was the rightful owner of the land in dispute so as to entitle him to the relief of a permanent injunction, restraining the defendants from interfering with his possession. This question which hinges on a proper interpretation of Sec. 239 of the Rajasthan Tenancy Act, 1955, has been considered on several occasions by the Rajasthan High Court as well as the Board of Revenue. Sec. 239 of the Tenancy Act says that if in any suit or proceeding in a revenue court, a question of proprietary right in respect of land forming the subject matter of such suit or proceeding is raised, and such question has not previously been determined by a civil court of competent jurisdiction, the revenue court shall frame an issue on the question of proprietary right and submit the record to the competent civil court for the decision of that issue only. In Chunia versus The Board of Revenue (I. L. R. 1954 page 1), it has been held that the minimum that is necessary before any holder of land in Mewar can claim proprietary title is that he must have a heritable and transferable right in land, and that this heritable and transferable right is found to vest in Jagirdars, Muafidars, Bhomias and Kharam-dars, but not in Khatedars, Mustakil Shikmis and Shikmis. In the case before their Lordships (Wanchoo, C. J. , and Dave J.), it was found that the question of prprie-tary right had not been raised at all in the pleadings. Therefore, it was held that the revenue courts had full jurisdiction to decide the point raised in the suit. The same judges considered the matter again in Chimna versus The Board of Revenue and another (I. L. R. 1956 Rajasthan page 323.) This was a case from the Marwar where admittedly Bapidari tenancy did not amount to any proprietary right. The plaintiff claiming to be a Bapidar by virtue of his adoption by the former Bapidar had sought recovery of possession and the defendant had denied the adoption. Their Lordships observed that where a person is out of possession of land, or where a person files a suit properly in a revenue court for possession of land, or where a person files a suit for any right that he can properly claim and for which he can properly file a suit in a revenue court, that court has full jurisdiction to decide any question of status such as validity or otherwise of an adoption, in case that question arises in the suit, and that it is only in that limited class of questions which are mentioned in Sec. 36 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, that an issue has to be referred to a civil court. IT may be recalled here that sec. 36 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, corresponds to Sec. 239 of the Rajasthan Tenancy Act, 1955. The next case on the point is Chhagan Lal versus Sukhlal and another (I. L. R-1961 Rajasthan page 746), and this is in respect of land in the Mewar area. Modi and Chhagani, JJ. , held that where the dispute between the parties is whether the plaintiff or the defendant is the Bapidar of a certain land, there is no issue of proprietary right arising between them. The bapidari status cannot be equated with the status of proprietor, and in a dispute of this kind the provisions of Sec. 36 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 are not attracted. The revenue court is itself competent to decide the question as to the real status of the parties with reference to the land in dispute, and it has no jurisdiction to remit that question to a civil court for decision. Their Lordships have further observed that this position will also hold good under sec. 239 of the Rajasthan Tenancy Act. The fourth case decided by the Rajasthan High court is Durjan Singh and others vs. Shamsher Khan and others (I. L. R. 1961 Rajasthan 1222 ). This was a case from the Mewar area. In this case Bhargawa, J. , held that Kharamdar or a Bapidar is a tenant, and if any dispute arises regarding that right, it will be regarded as a dispute regarding tenancy rights and not proprietary rights. Bapidari rights under the Mewar law are only tenancy rights, and if there is any dispute about the Bapidari rights, it does not involve a question of proprietary right. Bhargawa, J. , has further held that the case of Chhunia versus Board of Revenue (I. L. R. Rajasthan 1954 page 1) could not be relied upon as an authority for the view that the dispute about Kharamdari or Bapidari rights involved a question of proprietary right within the meaning of Sec. 36 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act. He went on to say that there are tenants even under the Rajasthan Tenancy Act who have got heritable and to some extent transferable right, but that does not mean that if any dispute arises regarding their rights that would be a question involving a proprietary right.