HUKMA Vs. NARENDRA KANWAR

JUDGEMENT

(1.) THIS is Civil Misc. Appeal under Order 43, Rule 1 CPC against the judgment of learned Civil Judge, Jaipur District, Jaipur dated 24 -3 -1975 in Civil Misc. Appeal No. 45/71 reversing the judgment of learned Munsif, Jaipur District dated 20th May, 1971 in civil suit No. 141/66 in a suit for possession and injunction. The plaintiff -respondents filed a suit against, the defendant alleging that there was a garden consisting of 2 bighas and 15 biswas of land, situated in Ajmer, popularly known as 'Duniwalon -ke -bag.' It was alleged that the land belonged to the ancestors of the plaintiffs and after resumption of their Jagir, it remained as their personal property. It was further mentioned that the Theka of said garden was given to the defendant since 1954 and was extended from time to time. Last Theka was given on 1 -4 - 957. The defendant did not pay the amount of Theka as such a suit was filed in the court of Munsif Jaipur, District Jaipur in which the defendant filed written statement that khatedari of the said land had been entered in his name and that Parcha lagan by the Settlement Department had also been issued in the name of defendant. It was contended by the plaintiffs that the defendant was not entitled to get any khatedari rights in the property and he had wrongly managed the entries of khatedari in his favour. It was further alleged that defendant was trespasser and, therefore, this suit was filed with the prayer that declaration be given that the defendant was not entitled to get any khatedari rights or rights as agriculturist in the disputed property of which the plaintiff were owners. It was also prayed that the defendant had mis -repressented and obtained Parcha -lagan from the Settlement Department, which also void and ineffective as against the plaintiffs and that the defendant was a trespasser. It was further prayed that a decree for possession and mesne profits be also given against the defendant.

(2.) IN the written statement filed by the defendant -appellant it was, inter -alia, contended that the suit was not triable by the civil court and could be tried only by a revenue court The trial court framed 6 issues on 9 -8 1968 and issue No. 2 was framed as under: Whether this court had jurisdiction to try the suit?

(3.) A persual of Schedule -Ill of the Rajasthan Tenancy Act shows that in serial No. 5 it is mentioned 'suit for declaration of the plaintiff's right: (i) as a tenant, or (ii) as a tenant of khudkast, or (iii) as a sub -tenant, or (iv) for a share in a joint tenancy.'At serial No. 8, it is mentioned 'suit for declaration of any other right' At serial No. 23 there is mention of 'suit for ejectment of trespasser'. Serial No. 26 mentions suit by or against grove holders in relation to determination, modification, recovery and payment of rent. At serial No. 27 there is mention of suit by or against grove holders for ejectment. It has also been pointed out that when in the plaint it has nowhere been mentioned by the plaintiffs that the land under suit was Abadi land, it: was not open to the appellate court to take up this plea on its own and set -aside the judgment of the trial court and remand the case for taking evidence on this plea and thereafter decide issue No. 2 regarding jurisdiction of the court.