- (1.) THIS is a reference dated 16th of October, 1958 by the Collector, Ajmer under section 243 (3) of the Rajasthan Tenancy Act, 1955 in which a recommendation has been made that "the present Assistant Collector, Kishangarh may be directed, notwithstanding the provisions of sec. 85 (3) Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 and sec. 239 (3) of the Rajasthan Tenancy Act to frame a fresh issue on the nature of right claimed over the land, receive fresh evidence, if necessary, and to take further steps according to the development of the case. "
(2.) THE facts which have given rise to this reference are briefly as follows : THE plaintiff Kamar instituted on 30. 12. 1950 a suit in the court of the Munsif, Kishangarh against defendants Sukhdeo and Balu. claiming l/3rd share in the in 100 bighas of land attached to a well "dundiwala", which was in the Bapi of the parties. THE Rajasthan Revenue Courts (Procedure and Jurisdiction) Act of 1951 having come into force on 31st January, 1951, the Munsif on 23rd February, 1951 held that the case is exclusively triable by a revenue court and, therefore, transferred the case to the Assistant Collector, Kishangarh. THE Assistant Collector, Kishangarh, on 17th September, 1951 framed the following three issues. (1) Whether the land and the well in dispute are of the Bapi of the parties and the ancestors of the parlies had dug the well originally and in Svt. 2001, the same was repaired with the expenses of the parties jointly? (2) Whether the plaintiff is entitled to l/3rd share in the well and the land in dispute? (3) To what relief are the parties entitled ? The third issue, of course, is a formal one. The first two issues were considered by the then Assistant Collector as raising a question of proprietary title and he, therefore, referred them to the Munsif, Kishangarh for his findings. The Munsif court having been abolished, the matter was dealt with by the Civil Judge, who, vide his judgment dated 31st March, 1954, returned the following findings to the revenue court. (1) "there is no proof as to the land being in the Bapi of the parties. Kamar plaintiff and Sukhdeo prepared the present well. There was an old well in the land which is about 100 bighas and that it was built by Kamar, Sukhdeo and Balu, The plaintiff had established his right over the land and the well to the extent of l/3rd. " After the return of the case with the findings by the civil court, an objection was raised before the revenue court that the case was not triable by the revenue court, but the objection was over-ruled by the revenue court on 30th November, 1954. Ultimately, the Assistant Collector, Kishangarh on the basis of the findings received from the civil court passed a preliminary decree on 27th of January, 1955 and appointed a Commissioner to demarcate the land and it appears that the Commissioner submitted his report on 11th of March, 1956. The preliminary decree passed by the Assistant Collector was not challenged either by an appeal or in any other manner. However, in the meanwhile, Shri S. S. Joshi having succeeded as an Assistant Collector, Kishangarh, thought that the decision of the learned Civil Judge, Kishangarh on issues No. 1 any 2 in so far as it did not relate to the question of the proprietary right or Bapi is a nullity due to want of jurisdiction under sec. 7 read with sub-sec. (1) and (2) of Sec. 36 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act No. 1 of 1951. He, therefore, approached the Collector, Ajmer, for making a reference to this Court and sent to the Collector, Ajmer his order of reference dated 21st November, 1957. The Collector, Ajmer finding that the reasons for making a reference to the High Court had not been given in detail, did not grant a sanction. The Assistant Collector, therefore, submitted a detailed reference on 14th of December, 1957. The Collector on receipt of this detailed order of reference has made the present reference and made a recommendation which has already been given in detail above. I have considered very carefully the order of reference and heard Mr. Makhtoor Mal, advocate for the defendant and Shri R. A. Gupta, Deputy Government Advocate'. At the outset, I have no hesitation in stating that the present reference is quite incompetent and is entirely mis-conceived. Sec. 243 of the Rajasthan Tenancy Act contemplates reference by a civil court or revenue court whenever a revenue or a civil court entertains a doubt about its competence to entertain any suit, proceeding or appeal. In the present case, there is absolutely no doubt on the competence of the revenue court to entertain and try the suit. The questions over which the controversy has arisen are whether the issues framed by the Assistant Collector raise a question of proprietary title and whether they should have been referred to a civil court for determination. This controversy has nothing to do with the competence of the revenue court to entertain and try the suit. At the best, there can be some argument that there have been some errors and irregularities in the framing of the issues and in referring them to the civil court for determination. These errors or irregularities cannot be equated with a question relating to the conflict of jurisdiction and, in my opinion, on a proper construction and interpretation of sec. 243 of the Tenancy Act, no reference can be made to this court for the corrections and rectifications of the errors and irregularities committed during the course of trial. It was open to the parties to have filed revision application or appeal at the relevant stages, and to have secured a rectification of the errors. It will be too much to expect from this Court to ignore the preliminary decree passed in the year 1954, which was not challenged either in an appeal or a revision and to indirectly set it aside by directing the Assistant Collector to frame and try an issue as suggested by the Collector, Ajmer. Mr. Makhtoor Mal, who has tried to support the order of reference has not been able to satisfy me that the reference can be appropriately made under sec. 243 of Rajasthan Tenancy Act. He, however, very vehemently contended that the errors committed being of a palpable character, this court should exercise jurisdiction under sec. 231 of the Rajasthan Tenancy Act and should quash the preliminary decree in the exercise of revisional jurisdiction. However, inasmuch as an appeal from the preliminary decree of the revenue court was competent, this Court cannot entertain any request for the exercise of revisional powers under sec. 231 of the Rajasthan Tenancy Act. In the circumstances, the reference is obviously incompetent and is hereby rejected. The defendant may in any appeal or revision against the preliminary or the final decree that may be passed, challenge the correctness of the order of the Assistant Collector in referring the issues to the civil court and the findings of the civil court, if law permits him to do so. . ;