BHARGAVA, J. - (1.) THIS is a second appeal by the defendants in a suit for declaration and is directed against the judgment and decree of the learned District Judge, Udaipur.
(2.) SHAMSHERKHAN and Sardarkhan filed the present suit in the court of the Sub Divisio-nal Officer, Udaipur, on the allegations that they had purchased 10 Bighas of land known by the name of 'dhimri' in village Chikalwas from defendant No. 6 Madansingh Sahiwala for Rs. 951/- in Smt. 2007 by a registered deed. It was alleged that the plaintiffs were in possession of this land as Thekedars even prior to the date of sale in their favour. After the sale, they continued to be in possession of the land, but the defendant Nos. 1 to 5 were bent upon interfering with their possession and on the night of Baisakh Sudi 1, had destroyed their hedge. In paragraph 1 of the plaint, it was mentioned that defendant No. 6 was the jagirdar of village Chiklawas. In paragraph 4, it was alleged that since the date of the sale they have acquired Kharam (Kashat) rights over this land. It was prayed that it may be declared that the plaintiffs are the permanent Kharmadars (Kashatkars) of this land and the defendants be restrained by means of an injunction from interfering with their possession. - Defendants No. 1 to 5 contested the suit and pleaded that defendant No. 6 had neither any Kharam rights in the land nor he was entitled to sell it to the plaintiffs. It was also stated that defendant No. 6 was never in possession of this land. On the other hand they stated that the land was in their possession since long. The learned Sub Divisional Officer, Udaipur framed as many as six issues on 6th May, 1952 out of which issues Nos. 1 and 2 were in the following terms: - 1. Whether the defendant No. 6 sold the Kharam of the land in dispute to the plaintiffs and whether that sale was valid? 2. Whether the defendant No. 6 had a right to sell this land. ? The learned; Sub Divisional Officer thought that there was a question of proprietary right involved in the suit and therefore, he remitted issues nos. 1 and 2 to the court of the Additional Munsif, Udaipur for decision. Before the learned Additional Munsif, an objection was taken on behalf of the defendants that there was no question of proprietary right being involved in the suit and the issues have been wrongly remitted to that court. The learned Additional Munsif however, by his order dated 12th February, 1954 decided these issues in favour of the plaintiffs. The learned Sub Divisional Officer, thereafter passed a decree in favour of the plaintiffs. The defendants preferred an appeal against the said judgment and decree to the court of the learned District Judge, Udaipur. It was urged before the learned District Judge that issues Nos. 1 and 2 were wrongly remitted to the civil court because they did not involve any question of proprietary right. It was urged that the only question before the Sub Divisional Officer was whether the land in question was a Khudkashat land of the jagirdar i. e. defendant No. 6 and he had a right to transfer those rights to the plaintiffs. The learned District Judge overruled this objection firstly on the ground that it was not raised by the defendants in the lower court and under sec. 41 of the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, 1951 which was the law then in force, he was precluded from taking such an objection because in his opinion an appeal lay to the civil court. Secondly, because the defendants in their written statement denied the title of the jagirdar to the land in dispute and thus the question of 'kharamdar' rights was also being challenged and therefore the question of proprietary right was raised and the revenue court was justified in remitting the issues. After overruling this objection, the learned District Judge on merits found in favour of the plaintiffs and dismissed the appeal. The defendants have now come in second appeal, and it has been contended by the learned counsel for the appellants that the case was exclusively triable by revenue courts as no question of proprietary rights was involved in this case. It was contended that defendant No. 6 was a jagirdar as admitted by the plaintiffs in paragraph 1 of the plaint and that only tenancy rights in the land were transferred by him and the dispute between! the parties was as to which of them was a tenant of this land. It is contended that 'kharamdars' and 'bapidars' are synonymous terms and are a class of tenants according to the Kanoon Mal of Mewar Act No. 6 of 1947. The dispute according to the learned counsel in this case is between rival tenants and no question of proprietary rights as such, is involved in this case because admittedly the defendant No. 6 was the owner of the land to whom the rent was payable. He therefore says that the judgment and decree of the courts below should be set aside on this ground alone, that the issues in the case were wrongly remitted to the civil court. He says that section 41 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act has no application in this case. Learned counsel for the respondents on the other hand says that the dispute in this case related to Kharamdari rights which are heritable and transferable. Since the defendants pleaded that defendant No. 6 had no right to transfer the Kharamdari rights to the defendants Nos. 1 to 5 and themselves claimed to be in possession of the land, therefore, a question of proprietary right was raised in this case and the learned Sub-Divisional Officer was justified in remitting the issues to the civil court for their determination. In this connection he has referred to a bench decision of this Court in Omnia Vs. Revenue Board (1 ). That was also a case where Kanoon Mal of Mewar, Act No. 5 of 1947, was applicable. The main question therefore, to be determined in this appeal is whether any question of proprietary right was involved in the case and the learned Sub Divisional Officer was justified in remitting issues Nos. 1 and 2 to the court of the Additional Munsif, Udaipur. It appears from the allegations in the plaint that the plaintiffs have called themselves as Kharamdars and have equated that term with the word 'kashatkars'. The dispute therefore, was whether the plaintiffs were Kharamdars of this land and were entitled to be declared so. There is no manner of doubt that Kharamdar or Bapidar, the two terms being synonymous, is a class of tenants under the Qanoon Mal of Mewar. Sec. 37 of the Act describes the classes of tenants and classifies them as Kharamdar or Bapidar, Khatedar, Mustakil Shikmi and Shikmi. Under sec. 38 rights of Kharamdar and Bapidar tenants are mentioned, it appears that Kharamdari rights were heritable according to the personal law or custom. Such Kharmdari rights were also transferable and a Kharamdar could not be ejected from the land as long as he continued to pay rent. It will thus appear that a Kharamdar is only a tenant although according to the Mewar Law, that right was transferable and heritable, but merely because the rights were transferable and heritable can it be said that it's determination involves question of proprietary right. In my opinion Kharamdar is a tenant and if any dispute arises regarding that right it will be regarded as a dispute regarding the tenancy rights and not proprietary rights because admittedly the proprietor of the land is the jagirdar and there is no dispute so far as his proprietary rights are concerned. The only dispute is whether he could transfer the rights of cultivation with whatever name they may be called. Plaintiffs alleged that they had purchased those rights from defendants No. 6. On the other hand defendants said that they were already in possession of this land and had a right to cultivate it. As stated above under sec. 37 of the Qanoon Mal of Mewar 'kharamdar' and 'bapidar' are synonymous terms. They have been treated as belonging to one class of tenants. The question about the rights of Bapidari tenants came before this Court in several cases and it was held that Bapidari rights under the Mewar law are only tenancy rights and if there is any dispute about the Bapidari rights they do not involve a question of any proprietary right. Reference in this connection may be made to a Bench decision of this Court in Bherulal and Keshu Vs. Todu and others (Civil Regular First Appeal No. 9 of 1953 decided on 21st November, 1956 where it was observed that: - "now, a 'bapidar' was not a proprietor under the Kanoon-mal-Mewar (Act No. V of 1947) of the former State of Mewar. This will be clear from sec. 37 in Chapter V of that Law. That Chapter deals with tenancy rights and a 'khatedar' or a 'bapidar' is one kind of tenant. Therefore where the dispute between the parties is whether the plaintiff is the 'bapidar' of certain land or the defendant, there is no issue of proprietary right arising between them. As such, the revenue court had no right to refer any issue as to proprietary right to the civil court and it was the duty of the revenue court to decide the main issue, which arose in this case, (viz. whether the plaintiffs, were the 'bapidars' of the land or the defendants were the 'bapidars') itself. We may in this connection refer to Chimna Vs. the Board of Revenue (1956 R. L. W. 420) where it was held by this court that sec. 36 has no application to a case of 'bapidar' tenancy which is not the same thing as proprietary right. " In the case of Chhagan Lal Vs. Sukhlal and Dalchand (Civil Reference No. 27 of 1960 in Civil Misc. Appeal No. 33 of 1959 decided on 13th May, 1960) after quoting the above observations it was observed that: - "we respectfully agree with the view taken in the last-mentioned two cases to the effect that a 'bapidari' status cannot be equated with the status of a proprietor with respect to agricultural land. " It is thus clear that Bapidari rights have been regarded as only tenancy rights involving no question of proprietorship. When Kharamdars and Bapidars belong to one class of tenants and are synonymous terms so far as Mewar Law is concerned there is no reason why the same principle should not beheld applicable in the case of Kharamdars. In the case on which reliance is placed by the learned counsel for the respondents i. e. , Chunia Vs. Revenue Board (1) there was no dispute regarding the Kharamdari or Bapidari rights and their Lordships only pointed out that the minimum necessary, before any holder of land in Mewar can claim proprietary title, is that he must have a heritable and transferable right which is found to vest in Jagirdars, Maufidars, Bhomias and Kharamdars or Bapidars, subject, of course, to such restrictions as the law of Mewar provides. That case therefore, cannot be relied upon as an authority for the view that the dispute about Kharamdari rights involves a question of proprietary rights within the meaning of sec. 36 of the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, 1951. There are tenants even under the Rajasthan Tenancy Act who have got heritable and to some extent transferable rights, but that does not mean that if any dispute arises regarding their rights that would be a question involving a proprietary right. I am, therefore, of the view that even if there was a dispute about the Kharamdari rights it did not involve any question of proprietary right, because Kharamdar is only a class of tenant and is not a proprietor of the land. That being so it must be held that the Sub Divisional Officer was not right in remitting issues Nos. 1 and 2 to the civil court and the judgment and decree passed by him on the basis of the finding given by the learned Additional Munsif, Udaipur cannot be sustained. The learned District Judge, it may be noted here, was not correct in saying that sec. 41 of the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act precludes the defendants from raising the objection of jurisdiction before him. In this case sec. 41 had no application. No appeal lay to the civil court because the case was exclusively triable by a revenue court. This appeal is therefore, allowed, judgment and decree of the courts below i. e. , of the learned District Judge, as well as of the Sub Divisional Officer is set aside and the case will go back to she court of the Sub Divisional Officer, Udaipur and he will try the issues and dispose of the case according to law. Parties shall bear their own costs of this appeal and of the first appellate court. . ;