SAWA Vs. NAKI MOHAMMAD

JUDGEMENT

(1.) THIS is a reference by the Civil Judge, Banswara, under Section 40 of the rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 (Act No. 1 of 1951) (hereinafter referred to as the Rajasthan Act) and has arisen under the following circumstances.

(2.) THE plaintiffs Sawa and Heera are brothers, sons of Deva. Their case, as disclosed in the plaint filed in the Court of S. D. O. , Banswara is that they as well as their brother Nathu who has been impleaded as defendant No. 2 are bapidars of fields Nos. 63 and 65 of village Ban and have been recorded as such in the settlement record. They further alleged that seven years ago, they executed an unregistered mortgage deed in favour of defendant Naki Mohammed for a sum of rs. 230/- and that the said defendant got into possession of the fields. It is further alleged that the plaintiffs gave a notice to the contesting defendant to hand over possession in which they also said that they were prepared to pay the mortgage money namely Rs. 230/-, but the defendant declined to accede to their request. The stand taken by the plaintiffs now is that as the mortgage deed executed by them in favour of defendant Naki Mohammed was unregistered, the mortgage was ineffective and conferred no title upon him and therefore, he was a trespasser within the meaning of serial 10, Group B, Schedule 1 of the Rajasthan act The plaintiffs, therefore, prayed that the defendant Naki Mohammed be directed to make over possession of the suit fields to the plaintiffs.

(3.) THE defendant Naki Mohammed resisted the suit mainly on the ground that sawa being the manager of a joint Hindu family consisting of himself and his brothers had sold the suit lands to him for Rs. 150/- by a document dated the 24th June, 1947, and that though this document was also an unregistered one, he was entitled to the benefit of Section 53-A of the Transfer of Property Act, and, therefore, prayed that the plaintiffs' suit be dismissed. The Sub-Divisional Officer framed an issue as to whether the plaintiffs had any proprietary rights with respect to the suit fields and referred it to the Munsiff, Banswara. It appears that the Munsiff decided this issue in favour of the defendant. His finding was that the defendant had purchased the suit fields from the plaintiff sawa and that he was entitled to the benefit of Section 53-A of the Transfer of property Act. The Sub-Divisional Officer on this finding dismissed the plaintiffs' suit. Thereupon they went in appeal to the Civil Judge, Banswara. The Civil Judge has now made the present reference, it having been contended before him that the suit was of a civil nature and could not have been tried by the revenue Courts. The learned Civil Judge held the opinion that this suit was substantially a suit for redemption but that there was a divergence of opinion in this High Court as to whether suits as to redemption of agricultural land were exclusively triable By the revenue Courts and, therefore, he has thought fit to make the present reference.