- (1.) THIS is a revision application against the order of the Sub-Divisional Officer, Chechat dated 8. 1. 53 and that of the Divisional Commissioner, Kotah of 4. 5. 53.
(2.) THE circumstances which have given rise to this revision application are that the non-applicants, Piarchand, Nandlal and Kanahiyalal filed a suit for ejectment against the applicant Birdha and Shri Ram, in the court of the Sub-Divisional Officer Chechat stating that holdings No. 762/474 and 476 measuring 4 bighas and 4 biswas in village Hingonia in tehsil Kanbas was of their khata and that they had given it for cultivation for 11 years to the applicants. Since the applicant bad refused to surrender possession of the holdings, a decree for ejectment from the holdings in question may be parsed against them. THE original court decreed the suit of ejectment and further ordered that the execution of the decree be stayed so long as the Rajasthan Protection of Tenants Ordinance of 1949 remains in force. THE applicants went in first appeal against this decision to the Divisional Commissioner Kotah who dismissed it on the ground that the order of the Sub-Divisional Officer Chechat was under sec. 5 of the Rajasthan Protection of Tenants Ordinance and hence no appeal could lie to him. It is against this order that this revision has been preferred, and along with revision application a copy of Commissioner's order and also that of Sub-Divisional Officer Chechat have been filed. THE applicants subsequently submitted an application that this revision may be treated as a second appeal. The preliminary point to be decided is whether this case should be treated as a revision application or as a second appeal. A perusal of the order of the Divisional Commissioner shows that he held that the order passed by the Sub-Divisional Officer Chechat was under sec. 5 of the Rajasthan Protection of Tenants Ordinance. It is why he did not entertain the appeal against the Sub-Divisional Officer's decision. But while doing so he should not have dismissed the appeal. Sec. 8 of the Rajasthan Revenue Courts Procedure and Jurisdiction Act lays down that if the court has no jurisdiction to entertain the suit it shall return the plaint to be presented in the court in which the suit should have been instituted. However this law will not make the Commissioner's decision as one in appeal. , The next point to be examined is whether the order passed by the Sub-Divisional Officer Chechat in this case is under the Rajasthan Protection of Tenants Ordinance or it is a decree passed in a suit. The non-applicants no doubt, filed a suit and the Sub-Divisional Officer decreed the suit but further on he observed that the decree be stayed so long as the Rajasthan Protection of Tenants Ordinance remains in force. Sec. 6 of the Rajasthan Protection of Tenants Ordinance lays down that all decrees or orders for ejectment which at the date of the commencement of this Ordinance, have not been fully executed; shall remain in abeyance and their execution shall be stayed so long as this Ordinance remains in force. Presumably under this section, he stayed the execution of his order of decree. Thus the judgment of the Sub-Divisional Officer consists of two parts one of which is a decree and the other is an order. As regards the validity of the decision relating to decree it will be dealt with later on at proper place but since the operative part of his decision relates to the stay of execution of the decree and thereby rendering it ineffective, it shall be presumed that this decision is under Rajasthan Protection of Tenants Ordinance and hence it should be heard as revision under sec. 10 (2) of the Ordinance. Sec. 6 of the Ordinance lays down that all decrees and orders for ejectment which on the day of commencement have not been fully executed shall remain in abeyance, and their execution shall be stayed so long as this Ordinance remains in force. Further its sec. 5 says that all suits, appeals, revisions, references, applications and proceedings for ejectment of the tenants pending on the date of commencement of this Ordinance shall be temporarily consigned to records. But it does not say that a suit for ejectment of a tenant shall not be entertained. However its sec. 4 (1) lays down that so long as this Ordinance is in force in any area of Rajasthan no tenant shall be liable to ejectment or dispossession from the whole or part of his holding in such area on any account whatsoever except as provided under sec. 4 (2 ). Thus if a suit for ejectment of a tenant does not fall in the proviso of sec. 4 (2), as referred to above, it will be barred under its sec. 4 (1) and consequently it shall be presumed that it is barred by law. Sec. 14 (d) of the Rules made under sec. 8 of the Revenue Courts Protection and Jurisdiction Act of 1951; lays down that the claim shall be rejected where the suit appears from the statement of the plaint to be barred by law. Under the circumstances this plaint which was for ejectment of a tenant on the grounds other than those mentioned in sec. 4 (2) must have been rejected under this sec. 14 (d) by the Sub-Divisional Officer instead of decreeing it and then staying its execution. I, therefore set aside his order and accept this revision application. Shri Ramswaroop - The suit was for ejectment of the defendants who were stated to be the plaintiffs sub-tenants, and it was filed under item No 6 of the Schedule B of the Rajasthan Revenue Courts Procedure and Jurisdiction Act, 1951. 2 The S. D. O. decided that the plaintiffs were the khatedars and the defendants were sub-tenants and that so long as the Rajasthan Protection of Tenants Ordinance remained in force, the defendants could not be ejected. 3. The Commissioner Kotah dismissed the appeal on the ground that he had no jurisdiction to hear and decide it as what the S. D. O. had passed was an order under sec. 5 of the Rajasthan Protection of Tenants Ordinance 1949 and that no appeal lay against it under sec. 10 (1)of it. 4. As the Commissioner thought, as he evidently did so, that the S. D. O. 's order could only be revised under sec. 10 (2) of the Ordinance, he could not have dismissed the appeal but should have returned the memorandum of appeal to the appellant for presenting it to the Board of Revenue as a revision application as required by Rule 13 of the Rules framed under sec. 8 of the Rajasthan Revenue Courts Jurisdiction and Procedure Act, 1951. Thus the order of the Commissioner, even though it dismissed the appeal was in fact an order under this rule. 5. Under the Civil Procedure Code an order under O. 7 R. 1 returning a plaint to be presented to the proper court is appealable under O. 43 R. 1 and a second appeal is barred. Under secs. 18, 19, and 20 of Rajasthan Revenue Courts Procedure and Jurisdiction Act, also an order under Rule 13 of the Rules made under sec. 8 is appealable, and even a second appeal can lie, provided the order is an appellate order of a Commissioner or the Settlement Commissioner. Since in this case the order under the Rule 13 is the original order of the Commissioner Kotah, no second appeal can lie, and hence the revision application has been properly filed and will be heard as such. Now as mentioned above, the plaintiff brought a suit and the S. D. O. passed a decree, adding further that as long as the R. P. T. O. remained in force the defendants would not be ejected. Apparently, he passed this latter order under sec. 6 of the R. P. T. O. In the first place the order could not form a part of the decree. It should have been a separate order. Moreover Sec. 6 of the R. P. T. O. applies to decrees for ejectment which had not been executed before the commencement of the R. P. T. O. and not to the decrees passed after its commencement. In the present case, the decree was passed on 8. 1. 53 and, therefore, the order was illegal. However, the question is whether the suit could have been brought under the law. Sec. 4 (1) of the R. P. T. O. lays down that so long as the Ordinance is in force in any area of Rajasthan no tenant shall be liable to ejectment or dispossession from the whole or part of his holding in suit on any ground whatsoever except as provided under sec. 4 (2 ). The present case is not envisaged by sec. 4 (2 ). Therefore the suit was barred by sec. 4 (1) because the defendants were admittedly sub-tenants, and a sub-tenant is included in the term "tenant" as defined in sec. (2) (viii) and the plaint should have been rejected under Rule 14 (d) made under sec. 8 of the Rajasthan Revenue Courts Procedure and Jurisdiction Act. The counsel for the plaintiffs-non-applicants have said nothing against this. The plaint is, therefore, rejected and the decree and order passed by the S. D. O. and the order passed by the Additional Commissioner are set aside. . ;