Decided on January 07,1960

GHINSA Appellant
AHMADA Respondents


- (1.)THIS reference has been made by the learned Civil Judge, Beawar, under sec. 243 of the Rajasthan Tenancy Act, 1955, which will hereinafter be referred to as the Act.
(2.)THE facts giving rise to it are that Ghinsa and Mana filed a suit for preemption in respect of certain agricultural plots of land in the court of Sub-Judge, First Class, Beawar, on 28. 10. 56. On 5. 5. 58, the learned Civil Judge, Beawar, transferred the case to the Sub-Divisional Officer, Beawar, under sec. 206 (3) of the Act, since he thought that it was exclusively triable by a revenue court. THE Sub-Divisional Officer, on the other hand, thought that the suit was triable only by a civil court and so he made a report to the Collector Ajmer for sanction to refer the matter to the High Court under sec. 243 of the Act. THE Collector agreed with the Sub-Divisional Officer that the case was triable by a civil court, but instead of sanctioning a reference under sec. 243, he sent the record to the District Judge, Ajmer, for transferring the case back to the court of Civil Judge, Beawar.
The learned Civil Judge has reported that the Collector ought to have simply given his sanction to the Sub-Divisional Officer to refer the case to this Court under sec. 243, when there was a difference of opinion between a civil Court and a revenue Court about their respective jurisdiction to entertain and decide the case and that the Collector ought not to have sent the case to him through the District Judge. The learned civil Judge is correct to the extent that the Collector ought to have simply given his sanction, which was sought from him by the Sub-Divisional Officer under sec. 243 (3) and he ought not to have directly sent the case to the District Judge to be returned to the Civil Court. Sec. 243 clearly provides that if a civil or revenue court is in doubt whether it is competent to entertain any suit, case, proceeding, application or appeal, it may submit the record with a statement of the reasons for its doubt to the High Court. In the present case, when there was a definite conflict of views about their respective jurisdiction between the revenue court and the civil court, the proper course was to refer the matter to this Court instead of sending the case back in the manner it was done.

Any way, the main point for determination by this Court is whether the case is triable by the revenue court or by a civil court.

Neither party has cared to appear in this Court.

It may be observed that a right to enforce a claim of preemption is a right of-civil nature and a suit for preemption is ordinarily triable by a civil court. The learned Civil Judge, seems to be under the impression that because the property in respect of which a right of preemption is claimed is an agricultural property, the suit is exclusively triable by a revenue court. According to sec. 207 of the Act, a civil court is debarred from taking cognizance only of those suits or applications which are based on a cause of action in respect of which a relief can be obtained by means of any such suit or application in a revenue court. It also lays down that suits and applications of the nature specified in the Third Schedule shall be heard and determined by a revenue court. Now, the Third Schedule of the Act makes no mention about any suit or application for enforcing a right of, preemption. The learned Civil Judge is of the view that a suit for preemption is covered by Serial No. 8 or Serial No. 35 of the Third Schedule Serial No. 8 refers to a "suit for declaration of any other right" under sec. 91 of the Act. Sec. 91 lays down that "'except as otherwise specifically provided, any person may sue for a declaration of all or any of his rights conferred by this Act and not otherwise provided for". It may be pointed out that the foregoing sections 88,89 and 90 provide remedies for suits for declaration of certain rights and sec. 91 is a residuary section for suits for declaration of other rights not covered by the preceding three sections. Nevertheless, a suit for declaration of a light to be covered by sec. 91! must be in respect of some right which is conferred by the Act. The learned Civil Judge has not referred to any provision of the Act whereby a right of pre emption may have been conferred by it and therefore sec. 91 or Serial No. 8 of Third Schedule would not govern the present case.

Similarly, Serial No. 35 is a general provision and provides for "any other suit in respect of any matter arising under the Act, not specifically provided for elsewhere in the Schedule". It is clear from the language of this provision also that the suit must be in respect of a matter which arises under the Act. The learned Civil Judge has not pointed out how the subject-matter of the present suit arises under the Act. The learned Civil Judge ought not to have transferred this case to the Assistant Collector (Sub-Divisional Officer), Beawar, in the absence of any clear provision making the suit exclusively triable by a revenue court. The learned Judge has not pointed out any provision whereby the jurisdiction of the civil court to hear and decide the case was barred.

There is thus no substance in the reference on merits and hence it is hereby rejected. .


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