Bapna - (1.) THIS is a revision against an order of the District Judge, Balotra, disallowing the appeal against an order of the Civil Judge, Balotra.
(2.) THE petitioners sued the opposite party in the Court of the Civil Judge, Balotra, on the 18th of August, 1948, for possession of one well, known as Nayoda well, along with the land appurtenant thereto and 19 other fields mentioned in para 2 of the plaint, situated at village Mithuda, Tehsil Siwana, on the allegation that the said lands belonged to the plaintiffs but had been wrongly occupied by the defendants. THE plaintiffs also added another claim in the suit in respect of possession of three plots of land in the village suitable for residential houses as also mesne profits amounting to Rs. 957/- in respect of the agricultural land. The defendants denied the plaintiff's claim, and inter alia pleaded that the civil courts had no jurisdiction. The learned Civil Judge held that the suit was cognizable by a revenue court, relying upon sections 118 and 94 of the Marwar Tenancy Act, 1949 (Act XXXIX of 1949) as also item No. 12 of Schedule II to the said Act. The plaintiff filed an appeal, which was dismissed. In this revision petition it is argued that the civil Court had jurisdiction to entertain the suit, and the Court had failed to exercise jurisdiction vested in it by law. It was contended that Marwar Tenancy Act came into force on the 6th of April, 1949, while the suit had been filed long before that date. It was also contended that there was no provision in the Act which could affect pending cases. Mr. Hastimal, who appears for the opposite party, argued that on the language of section 118 of the Act, it was only a revenue Court which could hear and dispose of a suit of the nature preferred by the plaintiff as regards the claim for possession of well, 19 fields and mesne profits. The relevant portion of the said sec. is, "all the suits and applications of the nature specified in the Second Schedule 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 relief could be obtained by means of any such suit or application." Stress was laid on the words "heard and determined," which, according to the learned counsel for the opposite party, precluded a civil Court from proceeding further in a pending case. In my opinion, while the first portion of the section authorized revenue Courts to hear and determine cases which may be brought before them, it did not divest the civil Courts of continuing cases which had been filed in those Courts, and of which they had jurisdiction at the time of the institution of the suits to entertain and decide. Mr. Hastimal next argued that if the Marwar Tenancy Act 1949 was not applicable to pending suits, the law prior to the enforcement of the said Act was laid down in the Revenue Rules of 1924, and that under section 3 the suit was exclusively triable by a revenue Court. The classes of cases triable by revenue Courts are mentioned in the section, and clause (k) was relied upon in this respect. That clause is, "Cases in which the matter at issue is the right to eject a tenant or other holder of any agricultural land." In my opinion this clause is also not applicable, as the defendants in the present case were shown as trespassers and not as tenants or holders of any agricultural land under the landlord. In the view that I have taken, the order of the trial Court and of the District Judge is not correct, and I would have directed the trial of the case on merits. My attention is however, drawn to a recent enactment, the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 (Act No. 1 of 1951). which was brought into force from the 31st of January, 1951. Under section 7, suits and applications of the nature described in the First and Second Schedules are directed to be heard and determined by a revenue Court. Schedule I, group (B) item No. 10 mentions suits for the ejectment of trespassers taking possession of land without lawful authority. The present suit, so far as the claim for possession of Nayoda well with the land appurtenant thereto and 19 fields is concerned, is thus triable by a revenue Court under section 7, and is to be transferred to an appropriate Court under section 6. It was contended by the learned counsel for the petitioner that there were other reliefs in the present suit which could not be granted by a revenue Court, and drew my attention to the claim for possession of the three plots of abadi land in the village as also for mesne profits. The cause of action for the possession of abadi land is entirely different from that in respect of the agricultural holding and the suit for possession of agricultural land cannot be tried by Civil Courts merely because the plaintiff chooses to add some other claim unconnected with the agricultural holding in the suit. The plaintiff may, if he is so advised, file a separate suit for possession of the abadi land. As regards mesne profits, that relief would be ancillary to his claim for possession of agricultural land. As a result, I set aside the order of return of the plaint, and hereby direct that the case be transferred from the Court to of Civil Judge, Balotra, the Court of the Assistant Collector, Balotra, for decision on merits in respect of the claim for possession of Nayoda well, the land appurtenant thereto, and 19 fields described in the plaint. The claim for mesne profits will also be tried by the revenue Court as it is ancillary to the claim for possession. No order as to costs. ;