HIGH COURT OF RAJASTHAN
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(1.)PANNA, Sua, Teja, sons of Pura, Goma and PANNA, son of Bhura filed a suit for possession by way of pre-emption of some agricultural properties in the court of the Sub-Judge First Class, Beawar on 26. 9. 1956. Subsequently, the Rajasthan Tenancy Act having come into force, and the civil court was of the opinion that the suit was exclusively triable by a revenue court and transferred it to the court of the Asstt. Collector, Beawar. The S. D. O. , Beawar in whose court the case came on transfer, did not agree with the opinion expressed by the civil court and thought that the case was not exclusively triable by a revenue court, but deserves to be tried by a civil court. He, therefore, sent the case to the Collector, Beawar for reference to the Hon'ble High Court, as under the law, the subordinate courts have to approach the High Court for reference after obtaining sanction of the Collector. The Collector did not think it proper to make a reference to the High Court, but decided himself that the suit was to be tried by a civil court. He accordingly transferred the case back to the civil court. The Civil Judge, vide his order dated 28th of January, 1959, has made the present reference.
(2.)THE Civil Judge has in the first instance found some fault with the proceedings of the Collector in omitting to make a reference to the High Court and sending the case direct to the civil court. Next, he has expressed an opinion that the suit being for possession by way of pre-emption of agricultural properties is covered by sec. 91 of the Rajasthan Tenancy Act, 1955. So far as the Civil Judge's criticism of the action of the Collector is concerned, I am of the opinion that it appears to be correct. When a civil court had transferred a case to a revenue court on account of its finding as to the lack of civil court's jurisdiction to try the suit, the revenue court disagreeing with the finding of the civil court, must make a reference , to the High Court and should not have sent the case back to the civil court. Nothing however now turns upon this irregularity. THE case is now before this Court and a decision has to be taken whether it is a case triable by a revenue court or a civil court. It is of course expected that both civil and revenue courts will not in future decide themselves the question regarding conflict of jurisdiction, but would make appropriate references to this Court and get the decision of this Court.
Coming to the main question, whether it is a case triable by a revenue or a civil court, I must straight-away point out that sec. 91 of the Rajasthan Tenancy Act cannot at all apply to pre-emption suits. Sec. 91 of the Rajasthan Tenancy Act reads as follows - "91. Suit for declaration of other rights - 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 contemplates suits for declaration of all or any of the right conferred by this Act and not otherwise provided for. The Tenancy Act contemplates various rights regarding tenancies and contains provisions for the creation, devolution and extinction of such rights. It is in respect of those rights that a suit under sec. 91 of the Rajasthan Tenancy Act is contemplated. The right to pre-empt property is not created by the Tenancy Act. In the present case, the right has been based upon an alleged custom. Certainly therefore, it is not a right which the plaintiffs can claim to have acquired under the provisions of the Rajasthan Tenancy Act. A suit for pre-emption, in this view of sec 91, cannot fall within its scope, and the civil court is not correct in coming to the conclusion that the suit being for a right under sec. 91 of the Rajasthan Tenancy Act is triable by a revenue court. On a proper interpretation of sec. 91, I am clearly of the opinion that the present suit for possession by way of pre-emption is a suit triable by a civil court and shall be so tried.
I accordingly send the case back to the Civil Judge, Beawar with a direction that he shall proceed to try the suit in accordance with law. .
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