- (1.) THIS is a reference by the Revenue Board and has arisen in the following circumstanes.
(2.) THE opposite party Jeewan filed a suit-against Mohan in the court of the Munsiff, Churu, for the recovery of certain arrears of rent from Svt. 2003 to Svt. 2006 in respect of certain agricultural land situate in village Kharia, Tehsil Rajgarh, District Churu. THE case of the plaintiff was that the defendant had taken a lease of the land in dispute from the plaintiff. This suit was filed on the 19th August, 1950. THE Munsiff decreed the suit by his judgment dated the 29th January, 1951. It would be convenient to state at this place that the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act (No 1) of 1951 (hereinafter referred to as 'the Rajasthan Act'.) came into force on the 31st January, 1951. Defendant Mohan took an appeal from the judgment of the Munsiff to the Civil Judge, Churu, who dismissed the appeal on 15th November, 1951. THEreafter the defendant preferred a second appeal before the Revenue Board on the 19th December, 1951. It was contended before the revenue Board that the suit out of which the appeal arose was of a revenue nature, and the civil court had no jurisdiction to take cognizance of it. THE Revenue Board, however thought that it was faced with a difficulty, as sec. 6 (3) of the Rajasthan Act did not in terms provide for transfer of any appeals therein. THE Board has accordingly made a reference to this Court under sec. 40 (1) of the said Act. The first and foremost question to decide is what was the nature of the suit at its very inception when it was filed in the court of the Munsiff, Churu, on 19-8-1950. The suit, in my judgment, even then being one for recovery of arrears of rent by a landlord against a tenant was one which was exclusively triable by a revenue court, and was covered by sec. 111 (3) of the Bikaner State Tenancy Act (Act II) of 1945 hereinafter referred to 'as the Bikaner Act' which was then in force. As already pointed cut above, the Rajasthan Act came into force later on 31st January, 1951. According to sec. 111 (3) of the Bikaner Act, the suits specified thereunder were to be instituted in and heard by a revenue court and no other court could take cognizance of any dispute or matter falling therein which might form the subject matter of a suit. In these circumstances, I have no hesitation in holding that the suit of the plaintiff in the present case was exclusively of a revenue nature even at its very commencement and should have been filed in a competent revenue court. The being so, I must further hold that the Munsiff had no jurisdiction whatsoever to entertain and decide the suit. Be that as it may, the Munsiff having decided the suit, an appeal was taken from his decision to the court of the Civil Judge. As the appeal taken to the Civil Judge was from the decision of a Munsiff which was a civil court, I am of opinion that as the law relating to appeals stands an appeal could only lie to the Civil Judge. For the same reason, I am of opinion that an appeal from the decision of the Civil Judge, being a second appeal, lies only to the High Court and not to the Revenue Board under sec. 100 C. P. C. It has been brought to my notice that appeals have been preferred from the decisions of the Civil Judge directly to the Revenue Board in certain other similar cases, and learned counsel for the petitioner submits that he was misled by that practice into filing an appeal also before the Revenue Board. In this connection Balsingh vs. Goruram (case No. 21 of Svt. 2008) has been brought to my notice, in which a second appeal was filed against the decision of the Civil Judge, Churu before the Revenue Board on the ground that the subject matter of the suit was of a revenue nature. It further appears that the Revenue Board held that the judgment of the Civil Judge was a nullity, and transferred the appeal to the Commissioner, Bikaner, for a fresh decision. Having given my careful consideration to this matter, I am of opinion that an appeal from a decision of a Civil Judge in first appeal could only lie to the High Court under the Code of Civil Procedure, and I know of no law nor has any been pointed out to me according to which a second appeal in such a case can be taken to the revenue board I must also point out that the circumstance that the Civil Judge in such a case had no jurisdiction cannot affect the conclusion at which I have arrived. If the higher civil court comes to the conclusion on the question of jurisdiction being raised before it that it has no jurisdiction to entertain and decide the appeal, it would be its duty to consider that ground and in the event of its coming to the conclusion that it had no jurisdiction to hear the appeal, I am of opinion that the proper course to adopt in such circumstances would be to return the plaint for presentation to the proper court. But as I have already pointed out above, such a result cannot be allowed to affect the decision of the question as to the maintainability of the appeal in that court. In Gangadhar vs. Shekharbasini (1) it was thus held that where jurisdiction is usurped by a court in passing an order against which an appeal would lie if it had been passed with jurisdiction, an appeal against the order cannot be defeated on the ground that the order was made without jurisdiction. On this reasoning, I am constrained to come to the conclusion that an appeal in the present case rightly lay to the High Court and not to the Revenue Board, and should have been so filed. The question that next arises for determination is whether an appeal having not been filed to this Court, as it should have been, this Court should entertain the present reference and decide the question of jurisdiction in the circumstances of this case. I am of opinion that the reference is competent under sec. 40 (1) of The Rajasthan Act, which reads as follows: - "where either a civil or a revenue court is in doubt whether it is competent to entertain any suit, case, proceeding, application or appeal, or whether it should direct the plaintiff, applicant or appellant to file the same in a court of the other description, the court may submit the record with a statement of the reasons for its doubt to the High Court. " Then sub-sec. (4) lays down as follows - "on any such reference being made, the High Court may order the court either to proceed with the case, or to return the plaint, application or appeal for presentation to such other court as it may declare competent to try the same. " I have already held above that the plaintiff's suit on the allegations made in the plaint is undoubtedly of a revenue nature, and the jurisdiction of the revenue court being of an exclusive character, the civil court is a together barred to try the suit. In these circumstances, the entire proceedings taken by the Munsiff were a nullity. I am also of opinion that the learned Civil Judge did not have any jurisdiction in law to pass a decree in this case although he had the jurisdiction to entertain the appeal and consider the question of jurisdiction if it had been raised before him. I would further add that if an appeal had been filed before this Court, as it should have been, all that this Court could do would be to hold that the civil courts had no jurisdiction to take cognizance of the case, and would have further passed on order under sub-sec. (4) of the Rajasthan Act, returning the plaint for presentation to the competent court. As the entire proceeding taken so far are, in my opinion, defective for want of jurisdiction, I have come to the conclusion that this Court must interfere in the circumstances of the case, and even if it may appear doubtful whether it has power to do so, under sec. 115 C. P. C. such authority can undoubtedly be exercise under Art. 227 of the Constitution, In the result, I would allow this reference, set aside the proceedings in the courts below, and hereby direct the Munsiff concerned to return the plaint for presentation to a competent court sec. 12 of the Rajasthan Act. Both parties will bear their own costs throughout. .;