MOHD ABDUL LATIF SHAH Vs. NASIR KHAN

JUDGEMENT

(1.) THIS is Civil Misc. Appeal against the order dated 27 -4 -1977 passed by learned Additional District Judge No. 2, Jaipur City, Jaipur in Civil Misc. Case No. 17/1974 by which application of the appellant plaintiff under Order 41, Rule 19 CPC was dismissed.

(2.) BRIEFLY stated the facts of the case are that appellant plaintiff filed a Civil suit for possession and mesne profits against the respondents in the Court of learned Munsif, Jaipur City (West) Jaipur. The appellant prayed for a decree of possession of land and the house constructed on the same. In the said suit the defendants respondents raised a legal objection that since the subject matter of the suit was agricultural land and all the reliefs claimed can be granted by a Revenue Court, therefore, it was not triable by a Civil Court. The learned trial court sustained this legal objection and held that the suit was exclusively triable by a Revenue Court and directed to return the plaint to the appellant for presentation in the competent Court vide his order dated 19 -10 -1972. The appellant preferred the Civil Misc. Appeal under Order 43, Rule 1(a), CPC in the Court of the learned District Judge, Jaipur City which was transferred to the Court of the learned Additional District Judge, Jaipur City for disposal.

(3.) NONE has appeared on behalf of the respondent. The learned Counsel for the appellant Shri R.S. Rathore Advocate has contended that the learned Additional District Judge has erred in dismissing the application filed under Order 41, Rule 19 CPC. He has pointed out that Shri Vidhya Bhushan Sharma and Shri Ram Kishore Sharma (Hemani), Advocate bad appeared in witness box and stated that the date 8 -2 -1974 was noted by Shri Hamani out of mistake. Diary Ex. 1 was also produced in which the date of 8 -2 -1974 has been noted. The entry of the Peshi regarding the same mistaken date was Ex. 2 and Ex. 3 Sarvarak of the file of the appeal was also produced on which also the date of 8 -2 -1974 was mentioned, On behalf of the respondent Ahmedkhan respondent himself was examined as witness and he denied the assertion of the appellant and stated that Shri Hemani had never come in the court on the relevant date.