- (1.) THIS is a second appeal by defendants Deva and others in a suit for a declaration in respect of a right of way. The plaintiffs describe themselves as the representatives or Mukhias of the entire cultivators of village Nayagaon, and instituted the suit out of which the present appeal has arisen on the allegation that they enjoyed from time immemorial a right of way from their village to the Mohadamate jungle over which they used to carry their bullock carts etc. without any obstruction from the owners of the neighbouring fields. The plaintiffs further allege that the said way lay through some of their own fields viz, Nos. 521, 525, 520 and 539/1050 and went on to the limits of their own village and thereafter passed through the fields of the defendants, Nos. 350-362, 351, 227, 226 and joint No. 147. The contention of the plaintiffs was that the defendants Dhula and four others had started cultivation on Nos. 225, 226, 362, 350 and 351, and thereby obstructed their way and consequently they prayed for a declaration that they were entitled to use their old right of way without any obstruction on the part of the defendants. The plaintiffs filed their suit on 12th February. 1946, and the Munsiff Mandalgarh decreed it by a judgment dated 14. 11. 51. It is not necessary to state at length either of the defence or other facts relating to this case in view of the order I propose to pass. An appeal was taken from the judgment of the learned Munsiff to the court of the Civil Judge, Bhilwara, who upheld the decree of the trial court by his judgment dated 6. 11. 52. The appeal is directed against the above judgment and decree.
(2.) IT is contended by learned counsel for the defendant-appellants that the present suit was of a revenue nature, and the civil court had no jurisdiction to take cognizance of it. The argument of learned counsel was that the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act (No. 1) of 1951 had come into force on 31st January, 1951, and that the present suit fell within serial No. 25, Group B of the First Schedule of that Act, and, therefore, this suit was covered by sec. 7 of the said Act, and no other court than a revenue court was competent to take cognizance of it. IT was further contended that under sec. 6 (3) of the said Act, it was the duty of the learned Munsiff to have transferred this case to a court competent to try it under sec. 12 of the said Act. Having given my careful consideration, I have arrived at the conclusion that this contention has force. The point to determine is whether the suit is of a character exemplified by serial No. 25 of Group B of the first Schedule of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951. In order to determine this question, we must look at the plaint, for that is primarily the material which can enable this Court come to a proper conclusion on the question raised one way or the other. It must be remembered, however, that what we have to look to is the real gist and substance of the plaint and not the incidental or subsidiary details of facts mentioned therein. Now, looking at the plaint in the manner indicated, I find that what the plaintiffs, who are a number of tenants or cultivators of the village Nayagaon, claim in the present case is that they have been enjoying from time immemorial a right of way from or to their own fields across and form over the fields of the defendants- The alleged way, it is admitted, passes through the plaintiffs' own fields which are situated up to the limits of their own village Nayagaon. Thereafter, according to the plaintiffs, the said way goes further and passes through certain fields which were admittedly occupied by the defendants at the date of the suit arid then joins up with the way from the defendants' village, and about which there is no dispute. It is, therefore, clear that there is a dispute as to a right of way and that the right of way claimed is over the fields of the defendants. So far, learned counsel for the respondents also agrees. What he says, however, is that such a right of way in the present case is not claimed by the plaintiff-respondents as to their own fields but to their whole village. This, however, in my opinion, is an abstraction which cannot be permitted. The dispute really relates to the alleged right of way over a strip on one side of which there are admittedly the fields of the defendants and on the other the fields of the plaintiffs, and the bone of contention is a part of land, which, according to the plaintiffs themselves, has been occupied by the defendants and is being cultivated by them. In those circumstances, I am decidedly of the opinion that the plaintiff's suit is one for declaration as to a right of way to their own fields over the fields of the defendants and is fully covered by serial No. 25 of Group B, First Schedule, of the Rajasthan Revenue Courts (Procedure; and Jurisdiction) Act, 1951. It may also be pointed out that this conclusion is not in any way affected by the circumstance that instead of one tenant bringing a suit in respect of the alleged right of way from over the defendants' field a number of them have joined together and sought to claim relief in the present suit. That does not and cannot change the character of the suit, as it would always be open to the plaintiffs, if that were so, to evade the jurisdiction of the court competent to decide a case like this. Once it is decided that the suit falls within the four corners of sec. 7 (1) of the said Act, it inescapably follows according to sub-sec. (2) thereof that no court other than a revenue court shall take cognizance of any such suit. It is further provided by the explanation of sec. 7 that if the cause of action is one in respect of which relief might be granted by the revenue court, it is immaterial that the relief asked for from the civil court is greater than; or additional to, or is not identical with, that which the revenue court could have granted. In short, the scheme of the Act clearly seems to be that once a suit falls within the purview of sec. 7 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, it is exclusively triable by a revenue court and no civil court has jurisdiction to take cognizance of it. As already stated above, the trial court decreed the suit on 14th November, 1951, and this was clearly after the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, had come into force on the 31st January 1951. By sub-sec. (3) of sec. 6 of the said Act, it is further provided that any suit or other proceeding pending before a civil court at the time of the commencement of the said Act, such suit being exclusively triable by a revenue court, must be transferred by such civil court to the revenue court competent under sec. 12 to deal with and dispose of it. The sec. is mandatory in its effect. It follows that the learn-ed Munsiff had no jurisdiction whatsoever to deal with and dispose of the case after the 31st January, 1951, and his judgment was, therefore, a nullity. It equally clearly must follow that the judgment of the learned Civil Judge in appeal was also void and of no effect. (See Rajrana Khumansingh vs. Chaturbhuj which was decided by this court on 28th October, 1953, in D. B. Civil Second Appeal No. 3 of 1952 ). For the reasons indicated above, I would allow this appeal, set aside the judgment of the court below and hereby direct that the learned Munsiff concerned will transfer the case to the revenue court competent under sec. 12 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, to deal with and dispose of it according to law. It has been brought to my notice that certain statements were recorded by the learned Munsiff after the 31st of January, 1951, and it is therefore, necessary to further direct that the proceedings recorded after the 31st January, 1951, will be quashed and the case retried from that stage according to law. All the proceedings taken before that date viz. , 31st January, 1951, will remain intact. The appellants will be entitled to their costs in this court and in the court below. As regards the costs of the trial court, they will abide the result. .;