UMED SINGH Vs. MANA

JUDGEMENT

(1.) This second appeal has been filed by Umedsingh plaintiff appellant against the contradictory judgment and decree of the Assistant Collector, Bikaner as well as the Revenue Appellate Authority, Bikaner dated 25 -4 -63 and 30 -9 -63 whereby, the Revenue Appellate Authority Bikaner set aside the order of the trial Court holding that the Revenue Courts had the jurisdiction to try the suit.

(2.) Briefly the facts of the case are that Umedsingh plaintiff appellant filed an application for ejectment of Mana from Khasra No. 171 consisting of 105 bighas and 9 biswas as sub -tenant under sec, 180 of the Rajasthan Tenancy Act situated in Rohi village Kakoo. It was the averment of the plaintiff appellant that this land was his Khudkasht land received as a result of partition between his brothers. The two brothers taking advantage of the appellants minority sold this land to Mana styling themselves as his guardian by a registered sale deed and without obtaining his consent. The defendant respondent contested the liability for ejectment from the holding on the ground that he was the purchaser of this land. On this contest the Assistant Collector should have treated this application as a plaint on payment of a proper fees under sec. 181 sub -sec. 3 of the Rajasthan Tenancy Act, but it appears that ho such action was taken. The Court proceeded to try the application and the first appellate Court also repeated the same mistake. The trial Court when coming to the decision of the question of jurisdiction of the Court to try this case came to the conclusion that as no mutation of the transaction of sale was effected and record of right was corrected, the plaintiff appellant continued to remain a Khudkasht holder and the defendant a sub -tenant. Mere registration of sale deed in favour of the defendant cannot deprive the plaintiff appellant to maintain a suit for ejectment against a sub -tenant. This decision in appeal filed by the defendant respondent before the Revenue Appellate Authority, Bikaner was reversed. The learned Revenue Appellate Authority came to the conclusion that the plea of the defendant respondent raised a question of civil right whether the sale in favour of the defendant respondent was void or not and this matter could only be decided by a competent civil Court and not by a Revenue Court and therefore he set aside the decree of the trial Court. It is against this judgment of the Revenue Appellate Authority that this second appeal has been filed by the plaintiff -appellants.

(3.) The only contention of the counsel for the appellant was that when a question of proprietory right was raised in a Revenue matter an appropriate issue could have been framed and the same should have been referred to a Civil Court for trial and decision, but the first appellate Court committed an error of law in rejecting the appellants suit. The counsel for the respondent did not concede the contention raised by the counsel for the appellant. The question for determination before us is whether the plea of the respondent that he was the proprietor of the suit land as a result of sale raises a question of proprietory right or not within the meaning of sec. 239 of the Rajasthan Tenancy Act, 1959. The plaintiff appellant seeks ejectment of the defendant respondent on the ground that he was the Khudkasht holder of the land and the respondent was his sub -tenant whereas the defendant respondent clearly pleads that the Khudkasht rights have been transferred to him by a proper sale and he cannot be ejected as a sub -tenant. Therefore, the issue for decision between the parties is who is the proprietor of the suit land in question. This in our opinion clearly raises a question of proprietory right in a revenue matter within the meaning of sec. 239 of the Rajasthan Tenancy Act. The defendant respondent has not taken an untenable plea of proprietory right with the intention solely to oust the jurisdiction of the revenue court as mentioned in explanation No. 1 to sec. 239 of the aforesaid Act. The plaintiff appellant himself admits that a void sale has taken place with reference to the suit land. The question, therefore, remains to be determined is whether the sale was void or not and whether any proprietory right was transferred to the defendant respondent by such sale or not. There can be no clearer matter than this case where a plea of proprietory right has been raised in a revenue matter. We are clearly of the opinion that the plea of the defendant respondent did raise a clear question of a proprietory right in respect of the suit land forming the subject matter of the suit and as it has not been previously decided by the Civil Court of competent jurisdiction, the trial Court should have framed a necessary issue and should have referred the matter and submitted the record to a competent Civil Court for decision of that issue only. The trial Court clearly was in error of law in coming to the conclusion that no plea of proprietory right was raised as the revenue Records were not corrected as a result of the sale deed. This case also in our opinion raises another technical question of civil law whether the elder brothers of the plaintiff appellant who purported to act as guardian of the minor were in position to transfer the minors property without his consent and without legal necessity. Further whether in fact the elder brothers of the plaintiff appellant were guardians or not during the life time of the appellants mother. These are technical questions of civil law which cannot be decided by a revenue Court and should have been referred to the Civil Court for decision. The learned Revenue Appellate Authority no doubt came to a right conclusion in holding that a question of proprietory right was involved and required prior decision in the suit before ejectment of the sub -tenant could be ordered, but fell into a serious error of law by merely quashing the order of the trial Court regarding jurisdiction without passing an appropriate order that the trial Court should frame the necessary issue and refer the same for trial to the competent Civil Court. The effect of the order of the Revenue Appellate Authority would be as it stands, that the suit of the plaintiff would be rejected. No such suit can be rejected merely on the plea of a defendant raising a question of proprietory right in respect of a land forming the subject -matter of the suit. Thus the judgment of the Revenue Appellate Authority in appeal before us is defective, illegal, improper and deserves to be set aside.