MODI,J. - (1.) This is a civil regular second appeal by the petitioners Badru and Likhma in a mutation matter and arises under circumstances presently to be mentioned.
(2.) Mohanram deceased was the last holder of certain agricultural land being Khasra No. 73 in village Dhani, Tehsil Taranagar. He died some time in Smt. year 2005 -6 leaving him surviving his widow and three sons, Thakru, Gumana and Moonga as to which fact there is no dispute whatsoever. The petitioners Badru and Likhma, also claiming to be the sons of the deceased Mohan by his second wife, (who had married him after the death of her husband Hukma who was a brother of Mohan) moved an application on the 29th April, 1957, in Tehsil Taranagar praying that their names be recorded in the revenue record as holders of the agricultural land in question in addition to the other sons of Mohan. This application was presumably made under sec. 133 of the Rajasthan Land Revenue Act, 1956 (Act No. 15 of 1956, hereinafter called the Land Revenue Act). This was resisted by Thakru and Moonga, Gumana having died issueless before the mutation application was moved by the present appellants. The Tehsildar after having made an inquiry into the matter dismissed the petitioners application by his order dated the 30th August, 1957. The petitioner then went up in appeal to the Collector, Churu. The latter by his order dated the 30th January, 1958, allowed the appeal having held that a specific issue regarding proprietary right arose in this case, therefore, that issue should be framed and remitted for decision to a competent civil court, and, in that view of the matter, remanded the case back to the Tehsildar. In compliance with this direction the Tehsildar framed two issues, one relating to the alleged paternity of the petitioners, and the second relating to their right of inheritance as to the agricultural land held by Mohan, and sent them to the Civil Judge Churu for decision. By his order dated the 28th November, 1958, the Civil Judge held that Likhma and Badru petitioners were the sons of Mohan and they were entitled to succeed to the land of Mohan "according to their share". Thereupon the Tehsildar accepting the finding of the civil court allowed the petitioners application and ordered mutation in their favour along with the other two sons of Mohan in equal shares. This order is dated the 18th April, 1960. Respondents Thakru and Moonga preferred an appeal from that order to the District Judge, Bikaner. The main contention raised before the learned District Judge on behalf of the respondents was that the reference made in this case by the revenue court to the civil court was entirely wrong in law, and, therefore, the civil court had no jurisdiction to decide the issues referred to it and the decision of the revenue court which was based upon the finding of the civil court was utterly contrary to law and could not possibly be sustained. This contention prevailed with the learned District Judge with the result that he came to the conclusion that the order of the Collector Churu directing the Tehsildar to refer the matter to the civil court was not in accordance with law and that the Tehsildars decision, based as it was upon the civil courts finding, was equally bad in law. Having so held, the learned District Judge allowed the appeal, set aside the order of the Tehsildar and sent the case back to him with a direction that he should further deal with it according to law. Aggrieved by this decision, the petitioners have come up in second appeal to this Court.
(3.) The first and the foremost question which emerges for decision in this appeal is whether a| reference for the determination of a question of proprietary right could lawfull be made in mutation proceeding to a civil court under sec. 239 of the Rajasthan Tenancy Act, 1955 (Act No. 3 of 1955, hereinafter referred to as the Tenancy Act). Sec. 239 reads as follows: - - "239. Procedure when plea of proprietary right raised: (1) If, in any suit or proceeding in a reve -nue court, a question of proprietary right in respect of land forming the subject matter of such suit or proceeding is raised and such question has not previously been determined by a civil court of competent jurisdiction, the revenue court shall frame an issue on the question of proprietary right and submit the record to the competent civil court for the decision of that issue only. Explanation I - -A Plea of proprietary right which is clearly untenable and intended solely to oust the jurisdiction of the revenue court shall not be deemed to raise a question of proprietary right within the meaning of this section. Explanation II: - -A question of proprietary right does not include the question whether such land is Khudkasht. (2) The civil court, after reframing the issue, if necessary, shall decide such issue only and return the record together with its finding there on to the revenue court which submitted it. (3) The revenue court shall then proceed to decide the suit accepting the finding of the civil court on the issue referred to it. (4) An appeal from a decree of a revenue court passed in a suit in which an issue involving a question of proprietary right has been decided by a civil court under sub -sec. (2) shall lie to the civil court which, having regard to the valuation of the suit, has jurisdiction to hear appeals from the court to which the issue of proprietary right had been referred. (5) A second appeal from a decree or order passed by a civil court in appeal under sub -sec. 4 shall lie to the High Court on any of the grounds mentioned in sec. 100 of the Code of Civil Procedure, 1908 (Central Act V of 1908)". ;