KAN SINGH, J. -
(1.) THIS is a revision application by the State of Rajasthan and is directed against an order of the Senior Civil Judge, Ganganagar, whereby in deciding one of the several issues in a suit pending before him, he held that the suit was triable by a civil court and not by a revenue court. The revision application arises under the following circumstances: On 2-1-65 Narain respondent brought a suit against the State of Rajasthan, Union of India and General Manager, Central Mechanised Farm, Suratgarh for the possession of an agricultural land measuring 116-1/2 bighas. It was averred in the plaint that the plaintiff was a Maurisidar of the suit land and the land was granted to the ancestors of the plaintiff by the former Bikaner State. Plaintiff's case was that the last holder of this land before him was his adoptive father Khinya Ram. Khinya Ram was survived by his widow Mst. Kastoori who adopted the plaintiff on 10-4-45. Thereafter the plaintiff had enjoyed this land and was cultivating it all along. According to him, the State of Rajasthan unlawfulyl entered upon the land sometime in the year 1957 and made this land a part of the Suratgarh farm and has handed over its possession to the Union of India. Respondent No. 3, General Manager, Mechanised Farm Suratgarh, took possession of the land on behalf of the Union of India. As, according to the plaintiff, no acquisition proceedings under the law were taken relating to this land and he was never paid any compensation, the deprivation of the plaintiff's possession by the respondents over the land in question was contrary to law. Thereafter, the plaintiff made several representations to the respondents, but without any success. At one time, however, some land was given to him on an adhoc basis purporting to be in exchange for the land taken away from him, but the plaintiff proceeded to say, that that land too was taken back from him on 10 6-63. The plaintiff also maintained that his adoptive mother Mst. Kastoori applied for giving her land in exchange, but this, according to the plaintiff, was an unauthorised act on her part and the respondents would not be discharging of their liability towards the plaintiff even if any land were given to Mst. Kastoori.
(2.) THE respondents filed a written statement and on the basis thereof learned Senior Civil Judge framed a number of issues. THE defendant raised a plea that the suit was exclusively triable by a revenue court and was, therefore, not triable by the Senior Civil Judge. This gave rise to issue No. 4. THE learned Senior Civil Judge heard arguments on this issue and decided that he had jurisdiction to try the suit. Learned Senior Civil Judge observed that as according to the plaint there appeared to be infringement of the fundamental right of the plaintiff the suit could lie only in the civil court as the action of the executive could not properly be impugned before a limb of the executive. In other words, according to the learned Senior Civil Judge, the revenue courts were limbs of the executive and were, therefore, not competent to try the matter as it related to the infringement of the fundamental rights of the plaintiff. When it was urged before the learned Senior Civil Judge that the suit was covered by sec. 183 of the Rajasthan Tenancy Act, 1955, hereinafter to be referred as the "act", he observed that that section related to a suit against a trespasser and as the State could not be held to be a trespasser, sec. 183 of the Act was not attracted in the matter.
I am afraid, learned Senior Civil Judge has mis-directed himself completely. It is true, the averments of the plaintiff show that there was, according to the plaintiff, infringement of his fundamental right to hold the property when the respondents dispossessed him without the authority of law, but from this it does not follow that the revenue courts are precluded from trying the suit if, according to law, such a suit is triable by them. The learned Senior Civil Judge was in a serious error in thinking that the revenue courts were limbs of the executive. Revenue Courts have been created by an Act of the Legislature and are, therefore, as much courts within the sphere allotted to them as are the civil courts in the sphere allotted to them by the legislature. It is true, the administrative officers, who are under the control of the Government, are appointed as revenue courts, but that will not mean that when they are discharging their functions as a court, they are doing so as a limb of the executive branch of the State. When they are so functioning as revenue courts, in my view they belong to the judicial branch of the State like the regular civil courts. It is as much expected of them to have judicial attachment in dealing with the matters before them as is expected of the other civil courts of the realm.
The crucial point, therefore, is whether the suit in question was really triable by a revenue court. Sec. 207 of the Act inter alia provides that all suits and applications of the nature specified in the Third Schedule of the Act shall be heard and determined by a revenue court and no court other than a revenue court shall take cognizance of any such suit or application or of any suit or application based on a cause of action in respect of which any relief could be obtained by means of any such suit or application. In examining the nature of the cause of action for the purposed of seeing whether the suit is covered by sec. 207 of the Act, one has to see whether the relief could be granted by a revenue court and for seeing' that it would be! immaterial that the relief asked for from the civil court is greater than or additional to or is not identical with that which the revenue court could have granted. For seeing whether the suit is triable by a revenue court as contemplated by sec. 207 of the Act one has primarily to look to the substance of the plaint,
Now serial 23 in the Third Schedule of the Act provides for a suit for ejectment of a trespasser. Such a suit has been made triable by an Assistant Collector. This serial refers to sec. 183 of the Act which provides that a trespasser who has taken or retained possession of any land without lawful authority shall be liable to ejectment subject to the provision contained in sub sec. (2 ). Now it is necessary to see whether the averments in the plaint can be held to fall within the ambit of sec. 183 of the Act. I have carefully examined the plaint. The plaintiff has averred that the land in question was his Maurisi (ancestral) and he had been in cultivatory possession thereof since 1945. In paragraph 4 of the plaint he has clearly stated that the respondents have dispossessed him without the authority of Jaw and are continuing in possession thereof. The relief asked for is one of possession and for compensation for use and occupation of the land. These averments are, therefore, susceptible of the interpretation that the defendants who have entered upon the land without the authority of law have a status no other than that of a trespasser in the eye of law. The observation of the learned Senior Civil Judge is only platitudinous when he says that the State cannot be a trespasser. It is expected that a civilised State would never like to have the role of a trespasser, but if as a matter of fact or law it is found to have entered upon another's property without the authority of law, then it cannot but be regarded as a trespasser. Therefore, I am satisfied that in substance the case is covered by the Third Schedule of the Act and is consequently one exclusively triable by a revenue court as contemplated by sec. 207 of the Act. Learned counsel for the respondents, however, submitted that the suit should still remain with the civil court who may be directed to refer an issue to the revenue court under sec. 242 of the Act. I am afraid, this cannot be acceded to. If the whole suit is triable by a revenue court, then the civil court would not be entitled to entertain that suit. It would be a different matter if in the course of the trial of the revenue suit the revenue court feels that there are certain issues which could be dealt with only by a civil court. Then the revenue court may refer any particular issue to the civil court under sec. 239 of the Act. Likewise, if the suit were held to be triable by a civil court, then a civil court might refer a certain issue about tenancy to the revenue court. But, in a case where the suit is exclusively triable by a revenue court, then the only course open to a civil court is to order the return of the plaint under the provisions of Order 7, Rule 10 C. P. C. Learned counsel for respondents also attempted to argue that the Tenancy Act does not contain any provision analogous to Order 7, Rule 10 C. P. C. but as the present matter is before a civil court it can undoubtedly resort to Order 7, Rule 10 C. P. C. I am not called upon to decide how a particular plaint would be dealt with by a revenue court, if it holds that the suit is not triable by it.
In the result, I allow this revision, set aside the order of the Senior Civil Judge dated 21-9-65 and hereby direct him to return the plaint to the plaintiff after making the necessary endorsement, for presenting it to a proper revenue court. It will, however, be open to the plaintiff-respondent to apply for refund of excess court fee, if he is so entitled under the law.
In the circumstances of the case there will be no order as to costs. .;