- (1.) THE first and for a most point urged by the plaintiff appellant in this case is that Civil Court had no jurisdiction to entertain the suit. THE question arises in the following circumstances.- THEre is a well called 'rambaba Wali Kothi' bearing Khasra No. 376 having an area of 5 Biswas situated in village Bhartiya Khund, Tehsil Niwai, District Tonk, of which the plaintiff claims to be a Khatedar tenant. It was alleged by him that he and the defendants are related to each other, and, therefore, during the last settlement he had permitted the defendants to take water from the above wall for 4 days in a month in order to irrigate their land, but there was a definite understanding between the parties that the plaintiff would be at liberty to stop the defendants from drawing water from the well any time he liked. THE plaintiff goes on to state that in accordance with this understanding the plaintiff stopped the defendants about 7 years before the filing of the suit and the defendants did not offer any resis-tence or opposition. It is further alleged that some time in the beginning of February 1959 the defendants forcibly started taking water from the well and the plaintiff offered resistance, which gave rise to quarrels between the parties He. therefore, filled the present suit in the Court of Civil Judge, Tonk on 18-10-1959 praying that the defendants may be restrained from drawing water from the well in question to irregate their land. THE suit was opposed by the defendants, who claimed a right of easement in this respect. THE learned Civil Judge, Tonk recorded the evidence produced by the parties, and thereafter by his judgment dated 1810-1962 dismissed the plaintiff's suit.
(2.) AGGRIEVED by the judgment and decree by the trial court the plaintiff filed appeal in the Court of District Judge, Jaipur City who affirmed the judgment and decree by the trial court and dismissed the appeal. Hence this second appeal by the plaintiff. One of the points argued on behalf of the appellant in the lower appellate court was that the suit was exclusively triable by a revenue court and it has been wrongly instituted in a civil court. The learned District Judge, however, repelled this contention and following the view taken in Shri Hiralal vs. Shri Narain (1) held that the suit had been rightly instituted in Civil Court. On merits he concerned in the findings of the trial court and held that the plaintiff had failed to prove his case. Learned counsel for the appellant has urged that the suit was exclusively triable by revenue court only and consequently did not lie in the Civil Court. It is submitted that no rule of estoppel can operate against the plaintiff in such a matter. It is, therefore, urged that the judgment given by the Senior Civil Judge, Tonk was without jurisdiction and should have been set aside by the learned District Judge. On the other hand, learned counsel for the respondents has urged that previously the plaintiff had filed a suit in respect of subject matter of the present suit in the Court of Assistant Collector, Tonk and on an objection as to jurisdiction having begin raised by the defendants the plaint was returned to the plaintiff for presentation to the proper court. It is argued that if the plaintiff thought that the suit was triable exclusively by a revenue court then he should have got the order of the Assistant Collector set aside, but having taken no steps in that direction and having filed the present suit in the Civil Court, it is not open to the plaintiff to raise such an objection now. In the alternative he has also argued that the present suit clearly fall within the four corners of sec. 251 of the Rajasthan Tenancy Act No III of 1955 (which will hereinafter called 'the Act')and according to sub-sec. (2) of this section the Civil Court was competent to try the suit. For a correct appraisal of the contentions, advanced by the learned counsel for the parties, it is necessary to examine in the first instance whether a suit for injunction in respect of the right to draw water from a well is a matter arising under the Act or the Rules made thereunder for which a remedy by way of suit, application, appeal or otherwise is provided therein. The term 'well' has not been defined in the Act. It would, therefore, be permissible to refer to its dictionary meaning. In Chambers' 20th Century Dictionary 'well' has been defined as 'a lined shaft sunk in the earth whence a supply of water, oil & C, is obtained'. Webstor's Third New International Dictionary given the following meaning of the term 'well' besides others 'an issue of water from the earth, and forming a pool or rivulet, a pool fed by a spring'. Even though the term 'well' has not been defined in the Act there are three terms in the Act to which reference may be usefully made in this connec-tion. They are 'land', 'holding' and 'improvement', sec. 5 (21) defines 'land' as follows: - Section 5 (24) defines 'innd' as follows: - " 'land' shall mean land which is let or held for agricultural purposes or for purposes subservient thereto or an grove land or for pasturage, including land occupied by houses or enclosures situated on a holding, or land covered with water which may be used for the purpose of irrigation or growing singhara or other similar produce but excluding abudi land; it shall include benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth;" 'holding', has been defined as under (vide sec. 5 (27), "'holding' shall mean a parcel or parcels of land, held under lease, engagement or grant, or, in the absence of such lease, engagement or grant, under one tenure, and shall include, in the case of an ijardar or thekedar, the ijara or theka area: Provided that, for the purposes of Chapter III-B. all parcels of land held anywhere throughout the State by a person under one or more than one lease agreement, grant, or tenure, and whether cultivated personally or let or sublet by him, shall be deemed to be his holding and, where any such land is held by more than one person as co-tenants or co-sharers, the share of each of them shall be deemed to be his separate holding whether a division thereof has or has not actually taken place. " The term 'improvement' has been defined in sec. 5 (19) as follows: - " (19) "improvement" shall mean, with reference to a tenant's holding: - (a) a dwelling house erected on the holding by the tenant for his own occupation or a cattle shed or a store-house or any other construction for agricultural purposes erected or get up by him on his holding. (b) any work which adds materially to the value of the holding and which is consistent with the purpose for which it was let; and subject to the foregoing provision of this clause, shall include - (1) the construction of bunds, tanks, wells, water channels and other works for the storage, supply or distribution of water for agricultural purposes; (2) the construction of works for the drainage of land or for its protection from floods or from erosion or from other damage by water, (3) the reclaiming, clearing, enclosing, levelling or terracings of land, (4) the erection in the immediate vicinity of the holding, otherwise than on the village-site, of building required for the convenient or profitable use or occupation of the holding, (5) the renewal or reconstruction, of any of the foregoing works or such alteration therein or addition thereto as are not of the nature of mere repairs; but shall not include such temporary wells, water channels, bunds, enclosures or other works as are made by tenants in the ordinary course of cultivation. " The definition of the term 'improvement' with reference to a tenant's hold-ing clearly includes a well. There is no gainsaying the fact that the well in the present case was constructed for agricultural purposes. The definition of the term 'land' as reproduced above is a very wide one inasmuch as it includes all land held for agricultural purposes or for purposes subservient thereto including land covered with water which may be used for the purposes of irrigation. The term 'holding' includes within its wide import all types of land covered by the definition of the term 'land'. The meaning of the word 'well' as given in the standard dictionaries to which I have made reference above further goes to show that a well is an issue of water from the land or a spring arising to the surface of the earth and forming pool or rivulet. Consequently, I am of the opinion that a well constructed for agricultural purposes is included in the term 'land' as defined in the Act, and also within the definition of the terra 'holding' as defined in sec. 5 (17) of the Act. It is significant that the well in question bears a separate Khasra number and its area has been mentioned as 5 Biswas. It is also noteworthy that the plaintiff alleges himself to be a Khatedar tenant in respect of the said well and has claimed that he has exclusive right ower the well in question and is entitled to get the defendants restrained by a perpetual injunction from drawing water from the well. Sec 92a of the Act inserted by sec. 12 of the Rajasthan Act No. 27 of 1956 makes provision for filing a suit for injunction. It lays down that except as otherwise specifically provided elsewhere in this Act, any person may sue, in respect of all or any of his rights conferred by this Act, for an injunction in accordance with and subject to the provisions of Chapter X of the Specific Relief Act, 1877. Under this section, therefore u/s. 92a the plaintiff has a right to file a suit for injunction against the defendants. It is true that in opposition to the plaintiff's claim the defendants have pleaded that they have a right of easement to draw water from the well and the plaintiff is not entitled to get any injunction issued against them. On account of the plea of easement raised by the defendant it has been held by the courts below and has also been argued before me on behalf of the respondents that the Civil Court would be competent to entertain the suit under sec. 251 of the Act. It has also been suggested by the learned counsel for the respondant that sec. 251 does not deal with mere right of way and private easement but with any other right which the holder of the land may claim. In my opinion this argument has no substance. The heading of sec. 251 is "rights of way and other private easement". The section provides that in the event of any holder of land in actual enjoyment of a right of way or other easement or right, having been disturbed in such enjoyment any make an application to the Tehsildar, who after making summary enquiry may order the disturbance to be removed or stopped and the applicant-holder to be restored to such enjoyment. Sub-sec. (2) of this section further provides that no order passed under this section shall debar any person from establishing such right or easement as he may claim by a regular suit in a competent civil court. The respondents want to bring the present case within the purview of sec. 251 on the ground that the question of easement has become a subject matter of decision in the present case on account of the plea raised by the defendants, In this connection, it is enough to point out that the jurisdiction of a court is to be determined by the allegations in the plaint and not by the defence raised by the defendants. The law is well settled that the jurisdiction with reference to the subject-matter of a claim depends upon the allegations in the plaint, and not upon those which may ultimately be found true. Such allegations may after the trial be held to be unfounded and in that case the suit will be dismissed not because the Court has no jurisdiction but because the allegations on which it was based are found to be untrue. The question of maintainability of a suit is also governed by the same principles and must be dealt with on the footing of the allegations in the plaint being correct. In Asala vs. Narain (2) it was observed that the question of jurisdiction viz. , whether a suit is exclusively triable by a revenue court or the Civil Court can take cognizance of it, has to be decided on the allegations made in the plaint taken in their essence. It is true that the plaintiff cannot defeat the special jurisdiction of a revenue court in a matter which exclusively falls within the jurisdiction by merely changing the form of relief.
(3.) IN Kundanlal vs. Parshadi (3) it was held by the learned Judges of the Allahabad High Court that a plaintiff cannot by merely changing the form of his relief evade the provisions of a special law. 1 he same is true and to a greater degree, in my opinion, in respect of the defence raised by a defendant, who cannot question the jurisdiction of the court on the basis of his defence I fail to understand how the jurisdiction of the court is to depend upon the defence raised by the defendant? Consequently, the mere fact that the defendants in the present case have raised a plea that they have a right of easement to draw water from the well will not bring the case within the purview of sec. 251 of the Act, and the jurisdiction of the revenue court would not be ousted. Another argument in this connection raised by the learned counsel for the respondents is that sec. 251 embraces all rights of the holder of the land is to be mentioned only to be rejected. The word 'right' used after the words 'other easement' in sec 25l[l] has to be interpreted as ejusdem generis. The heading of this section leaves no manner of doubt that this section pertains only to rights of way and other private easements. To put any other interpretation on this section would, in my opinion, lead to absurdity and would render the provisions of the Rajasthan Tenancy Act, nugatory. In a Bench decision of this court Mahendra Singh vs. State of Rajas-than (4) it was observed with respect to sec. 251 that the heading of this section shows that a summary procedure for determining a right of way and other private easements has been provided by this section, and what can be determined under this section is a right of way or a right to any other private easement. This observation confirms me in the interpretation I have put on sec. 251 of the Act- It is true once the case is covered by sec. 251 (1) of the Act, the holder of the land or any other aggrieved person may file a regular civil suit in a competent court even in the first instance without approaching the Tehsildar. But that is not the point. The present case does not fall within the purview of sec. 251 at all and there is the end of the matter, and the suit will lie in a revenue court under sec. 92a of the Act. In the Court below reliance was placed by the plaintiff on sec. 188 which according to me has obviously no application to the facts and circumstances of the present case inasmuch as the suit is not one for injunction against wrongful ejectment There is no denying the fact that once it is held that the suit is triable by a revenue court the jurisdiction of the civil court would be barred under sec. 256 of the Act. So far as the objection regarding the plaintiff being estopped from raising the question of jurisdiction is concerned, it is sufficient to point out, that the objection raised in the present case is one of inherent jurisdiction of the court to entertain the suit. No amount of consent can confer jurisdiction on a court which it is inherently incapable of exercising. I am consequently of the opinion that the suit did not lie in the Civil Court as it was exclusively triable by a revenue court. The learned District Judge has placed sole reliance on a decision of the Board of Revenue: Shri Hiralal vs. Shri Narain (1 ). I have gone through this decision and am of opinion that it has been wrongly held therein that 'well' is not covered by the terms 'land' and 'holding'. I have given my detailed reasoning in this connection in the earliar part of my judgment. I have also held in disagreement with the view taken by the learned Members of the Board that the plea of the defendants claiming right of easement would not oust the jurisdiction of the revenue court if on the allegations contained in the plaint, the revenue court is competent to entertain the suit. In my opinion, in the facts and circumstances of the present case the suit is triable by a revenue court. ;