- (1.) BOTH these references have been made by the Assistant Collector, Beawar, through the Collector, Ajmer, and since they involve a common question of law, they are disposed of together.
(2.) THE facts giving rise to them are that on 16. 12. 55, Codu and Shriram filed a representative suit on behalf of themselves and other residents of village Lordi in the court of Sub-Judge, Beawar. This was numbered as Suit No. 222 of 1955. . It was filed against Surajmal and other residents of village Daulatpura Sathana. THE plaintiffs' case was that there was one pasture land of village Lordi measuring about 100 bighas known as bada beed. It was asserted that the plaintiffs and other residents of village Lordi were grazing their cattle on the said pasture land for the last several years without any interruption or hindrance from anybody, that on the 15th December, 1955 the defendants had started cutting down the grass growing on the said pasture land and that they had also let loose their cattle to graze therein. It was prayed that a perpetual injunction be issued against the defendants restraining them, their servants and agents from cutting and removing the grass growing on the said pasture land. On 12. 12. 56 the same plaintiffs together with four more persons of the same village filed another suit in the same court of Sub-Judge, Beawar. This suit was numbered as No. 308 of 1956. In this case, the Union of India and the States of Rajasthan were also impleaded as defendants besides the residents of village Daulatpura. It was again asserted by the plaintiffs that the residents of village Lordi alone had a right to graze their cattle on the bada beed. It was alleged that on 10. 12. 55 the former State of Ajmer the Extra Assistant Commissioner, Beawar, sold the grass growing on the said pasture land to defendant No. 3 for a sum of Rs. 401/- and thereby infringed the plaintiffs' right to graze their cattle. It was further alleged that on 22. 9. 56 the Extra Assistant Commissioner and Tehsildar Beawar further sold the standing grass of the said bada beed to defendant No. 6 subject to confirmation by the Collector. According to the plaintiffs,this action on the part of the former State of Ajmer was illegal. The plaintiffs, therefore, prayed for a declaration that they had got right, title and interest to graze their cattle on the bada beed of Lordi to the exclusion of the cattle of other villages and that the sale of the standing grass by the former State of Ajmer on 10. 12. 55 and 22. 9. 56 was wrong and illegal. They further prayed for a perpetual injunction against all the defendants restraining them from interfering with the plaintiffs' right to graze their cattle on the said beed. Both these cases were contested by the defendants. In May, 1958, both these cases were transferred by the learned Civil Judge, Beawar, to the Sub-Divisional Officer (Asstt. Collector) Beawar under sec. 206 (3) of the Rajasthan Tenancy Act, 1955, since he thought that they were exclusively triable by a revenue court. The Assistant Collector Beawar, however, thought that the cases were not covered by any of the provisions of the Rajasthan Tenancy Act, that the revenue court had no jurisdiction to hear and determine them and thus there being a conflict of views between the civil court and the revenue court about their respective jurisdiction, the present reference has been made under sec. 243 of the Rajasthan Tenancy "act. Nobody has appeared in this Court on behalf of the defendants Surajmal and others, that is, residents of village Daulatpura. Learned Assistant Government Advocate has appeared on behalf of the State of Rajasthan and supports the reference. Learned counsel for the plaintiffs opposes the reference. It is urged by him that both the suits are covered by sec. 91 of the Rajasthan Tenancy Act, 1955, and therefore they are exclusively triable by a revenue court. Sec. 91 of the Rajasthan Tenancy Act, 1955, which will hereinafter be referred as the Act, runs as follows: - ''suit tor 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 is clear from the language of sec. 91 that any person may sue for a declaration of all or any of his lights conferred by this Act and not otherwise provided for. The words "not otherwise provided for" have been used in sec. 91 because the foregoing sec. 88, 89 also provide for certain suits for declaration. Sec. 91 is, therefore, a sort of residuary section for suits for declaration, but even then a suit for declaration under this section may be made only for all or any of the rights conferred by the Act. Learned counsel for the plaintiffs has not been able to show if his clients had brought the present suits for declaration of any of the rights conferred by the Act and, therefore, he cannot rightly invoke the aid of sec. 91 of the Act. It may be observed that sec. 251 of the Act lays down that in the event of a dispute arising as to the pasture lands of the village, the Tehsildar may, on application, after local enquiry decide the matter with reference to the previous custom in each case and with due regard to the convenience of all parties concerned. If the plaintiffs in the present case thought that they could obtain a remedy by presenting an application to the Tehsildar under the above section, they ought to have done so but instead of such an application, they filed civil suits. The plaintiff's case, as pointed out above, is that they have exclusive right over the pasture land in dispute and they want a declaration to the effect that they and the residents of village Lordi alone have a right, to graze their cattle on the disputed beed to the exclusion of the cattle of other villages. They also want a declaration to the effect that the sale of the standing grass on the said beed by the Extra Asstt. Commissioner and Tehsildar Beawar, was wrong and illegal, that the State has no fight over the said beed and therefore the State of Rajasthan and its officials should be restrained by means of a perpetual injunction not to sell, alienate or dispose of the grass of the said beed or to allow the residents of village Daulatpura or their servants or agents to graze their cattle on the said beed. Such a relief could not be given by the Tehsildar on an application under sec. 251. In fact, the plaintiffs want a declaration and perpetual injunction against the [tehsildar himself and, therefore, the present suits are beyond the scope of the application contemplated by sec. 251. Sub-sec. (2) of sec. 251 further provides that even an order passed under sub-sec. (1) will not debar any person from establishing such right or easement as he may claim by a regular suit in a competent civil court. The jurisdiction of the learned Civil Judge to hear and dispose of these cases was thus not barred and he ought not to have transferred these cases to the Assistant Collector, Beawar. The references are allowed. The orders of the learned Civil Judge dated 15. 5. 58 in suit No. 222 of 1955 and dated 2. 5. 58 in suit No. 308 of 1956 are set aside. Both the cases be sent to him with direction to restore them to their original numbers and proceed to decide them according to law. . ;