MODI, J. - (1.) THIS case has been referred to us by a learned single Judge by his order dated the 13th May, 1960.
(2.) THE facts leading up to this reference are briefly these. THE appellant in this Court was the plaintiff in the trial court, namely, the court of the Assistant Collector, Udai-pur. His case was that he was a Bapidar of Khasra No. 433 measuring 2 Bighas and 1 Biswa, situate opposite the Lalbagh gate at Nathdwara, by virtue of a writing dated the 10th October, 1951. Adjacent to the above-mentioned land, the defendants held the field bearing survey No. 432. THE plaintiff's grievance was that in erecting a fencing around survey No. 432, the defendants had made an encroachment on a portion of the plaintiff's land covered by survey No. 433 to the extent of four Biswas. THE plaintiff called upon the defendants to restore possession of this four Biswas of land encroached upon by them but without any avail. Consequently on the 15th September, 1953, the plaintiff instituted the present suit in the court of the Assistant Collector, Udaipur, for possession of the four Biswas of land belonging to survey No. 433 over which the defendants had taken unlawful possession. Of the defendants, defendant No. 2 admitted the claim of the plaintiff but defendant No. I resisted the suit, his case being that the plaintiff was not a Bapidar of survey No. 433 and that the former had made no encroachment whatsoever upon the land covered by the last-mentioned survey number in any manner whatsoever and he further pleaded that it the court came to the conclusion that he was in possession of the disputed land, then he had perfected his right with respect to it by adverse possession, and consequently he prayed for the dismissal of the suit. The trial court struck six issues in the case of which the first was in these terms: - "whether the plaintiff is the owner of the land bearing survey No. 433?" This issue was considered as involving a question of proprietary title and therefore the revenue court referred it for disposal to the civil court, which was the court of Munsiff Nathdwara. The civil court decided this issue in favour of the plaintiff and returned the record to the revenue court. Thereafter accepting the finding of the civil court on the aforesaid issue, the revenue court after a trial of the remaining issues, decided all of them in favour of the plaintiff and decreed the suit. The defendants went in appeal to the learned District Judge, Udaipur. The learned District Judge held that as the plaintiff was only a Bapidar, no question of proprietary right so far as he was concerned, arose in the suit. Consequently the learned Judge allowed the appeal merely setting aside the finding of the civil court on issue No. 1 (as he says) and sent the case back to the Assistant Collector Udaipur for disposal in accordance with law. Aggrieved by this judgment, the plaintiff has come up in appeal to this Court, which was originally placed for hearing before a learned single Judge who thought fit to make this reference to a larger bench. This is how the case has been placed before us for final disposal. The first question which in our opinion arises for consideration in this case is whether the finding of the learned District Judge that the plaintiff's case did not involve any question of proprietary right within the meaning of sec. 38 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 (Act No. I of 1951) hereinafter referred to as the Act of 1951) or for that matter within the meaning of sec. 239 of the Rajasthan Tenancy Act, 1955 (Act No. 3 of 1955) (hereinafter referred to as the Act of 1955) is correct. This question engaged the attention of a bench of this Court in Bherulal and another Vs. Todu and others (Civil regular first appeal No. 9 of 1953, decided on the 21st November, 1956.) The facts of that case are more or less analogous to those of the present one inasmuch as the plaintiff there was also a Bapidar of certain land in the former State of Udaipur and the plaintiff's case was that the defendant had taken unlawful possession of the plaintiff's land. An issue as to the so-called proprietary title of the plaintiff was raised in the case and referred to the civil court. The civil court came to the conclusion that the land was not proved to be the property of the plaintiff. This decision having been communicated to the revenue court, the latter dismissed the suit on the basis of the civil court's finding. Thereafter an appeal was carried to this Court under sec. 36 (4) of the Act of 1951, In the appeal it was hotly contended that no question of proprietary right did at all arise in the case before the revenue court, and, therefore, the latter was not justified in remitting any issue to the civil court for decision or deciding the case on the basis of that finding when it was returned to it. It was observed that whatever might have been the form of the issue which was referred to the civil court,the main question in the case was whether the plaintiffs' ancestor was the 'bapidar' of the land in question and whether therefore the plaintiffs were entitled to take possession of it as his heirs. This is how the learned Judges disposed of the question: - "now, a 'bapidar' was not a proprietor under the Kanoon-mal-Mewar (Act No. Vs. 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 'bapidari' tenancy which is not the same thing as proprietary right. One of us was a party to the last-mentioned decision. 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. That being so, we have no doubt whatever that the learned District Judge was right in holding that the provisions of Sec. 36 of the Act of 1951 were not attracted to this case and consequently the revenue court was itself competent to decide the question as to the real status of the parties with reference to the land in dispute and that it had no jurisdiction to remit that question to a civil court for decision. The same position, in our opinion, will hold good under Sec. 239 of the Act of 1955 as the language of that section is almost identical with that of Sec. 36 of the Act of 1951. It seems to have been contended before the learned single Judge, however, that once an issue had been remitted to a revenue court for decision under Sec. 36 of the Act of 1951 or Sec. 239 of the Act of 1955, the civil courts were not entitled to examine that question in appeal. Our answer to this contention is in an emphatic negative. We fail to understand when the whole case is before the civil court in appeal, how and why it can be prevented from addressing itself to a question which undoubtedly affects the merits of the case. No law has been cited to us, and indeed we know of none, which would preclude the civil court from re-examining the question as to whether an issue as to proprietary right at all arose in the case or not. We should also like to refer in this connection to the case of Bherulal and another Vs. Todu and others to which we have made reference above where an identical question was raised before the High Court in first appeal and that question was examined by the Court and a finding given that no issue of proprietary title arose in that case. In this state of the law, we are categorically of the opinion that there is no merit in the contention that the civil courts in appeal will not be entitled to examine the propriety of the question whether an issue as to proprietary title at all properly arose in the case and if not whether the revenue court had any jurisdiction at all to refer it to the civil court. We answer the question accordingly. The last question which seems to have been raised by learned counsel for the appellant before the learned single Judge was that even if the learned District Judge came to the conclusion to which he did, he should have decided the whole case himself as all the materials for deciding it were before him and that the learned Judge had committed an error in sending the case back for disposal to the revenue court. Reliance seems to have been placed in support of this submission on Secs. 244 and 245 of the Act of 1955, which read as follows: "244. Plea in appeal that suit was instituted in wrong court. When a suit instituted in a civil or revenue court an appeal lies to a civil court, an objection that the suit was instituted in the wrong court shall not be entertained by the appellate court, unless such objection was taken in the court of first instance, and the appellate court shall dispose of the appeal as if the suit had been instituted in the right court. 245. Procedure when objection was taken in the court of first instance.- (1) if in any such suit an objection was made in the court of first instance and the appellate court has before it all the material necessary for the determination of the suit it shall dispose of the appeal as if the suit had been instituted in the right court. (2) If the appellate court has not before it all such material and remands the case or frames issues and refers them for trial, or requires addi-tional evidence to be taken, it may direct its order either to the court in which the suit was instituted, or to such court as it may declare to be competent to try the same, (3) No objection shall be taken or raised in appeal or otherwise to any such order on the ground that it has been directed to a court not competent to try the suit. We have carefully examined the language of these two sections and in our opinion their application is attracted, among other things, in that type of cases only where an objection was or could be taken in the court of first instance that the suit was instituted in the wrong Court. To us it seems elementary that such an objection could not possibly be rased in this class of cases that the suit was instituted in a wrong court because the suits are validly instituted in the revenue court and cases wherein an issue as to proprietary title has been wrongly referred to a civil court are not under these sections. The only proper course in this class of cases appears to us to be that once the civil appellate court comes to the conclusion that the revenue court had no jurisdiction to make any reference to the civil court, the case not involving any issue as to proprietary title, then that court will cease to have jurisdiction to dispose of the case on the merits and all it should do is to quash the proceedings and send the case back to the competent revenue court for disposing of the case according to law. We answer the reference accordingly. Before concluding our judgment, we should like to point out that the final order passed by the learned District Judge merely setting aside the finding of the civil court is hardly correct. He should have not only set aside that finding but also quashed the judgment and decree of the Revenue Court, which were, and were bound to be based on that finding. We therefore, correct the judgment and decree of the learned District Judge accordingly and set aside the judgment and decree of the revenue court also and direct that it shall retry the first issue and decide the case afresh on all the issues in accordance with law. Subject to this modification we dismiss the appeal but without any order as to costs as the respondents have failed to appear in this Court. . ;