- (1.) THIS is an appeal by Nanu and others against the order of the District Judge of Ganganagar, returning the plaint which they had filed in that court for a declaration that the property in suit did not belong to Mst. Goran defendant in the suit, and that she could not claim possession and partition of that property.
(2.) THE case put forward by the plaintiffs was that Mst. Goran was a widow of one Nathu who was a brother of the plaintiffs Nanu, Sultan and Birbal. Nathu died during the life-time of his father Hira. On the death of Hira, Mst. Goran applied in the revenue court for the mutation of her name in the official records about one-fourth of the property of Hira, and got her name mutated. THE entire property was then in the possession of the plaintiffs, and therefore Mst. Goran filed a suit for partition of her one-fourth share in the revenue court. In that suit, it appears that the present plaintiff took an objection as to the proprietary title of Mst. Goran and prayed that an issue be farmed as required by sec. 36 of the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, 1951, and be remitted to the civil court for decision. It appears that the Sub-Divisional Officer did not frame the issue as desired. THEreupon, the present suit was filed by the plaintiffs in the civil court for a declaration that they were the owners of the property, and Mst. Goran was not entitled to claim possession or partition. THEir case was that as a Hindu widow she was only entitled to maintenance. The suit was resisted by Mst. Goran and one of her pleas was that it was not maintainable in the civil court. The plea has been accepted by the District Judge who has ordered the plaint to be returned to the plaintiffs. Hence this appeal. The question whether the jurisdiction of the civil court is barred depends upon the interpretation of sec. 7 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act (No. I) of 1951. That section is as follows : - " (1) All suits and applications of the nature specified in the first and second schedules shall be heard and determined by a revenue court. (2) No court other than a revenue court shall take cognisance of any such suit or application, or of any suit or application based on a cause of action in respect of which any relief could be obtained by means of any such suit or application. Explanation : - If the cause of action is one in respect of which relied 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. " Sub-sec. (2) shows that suits cannot be entertained by the civil court in view of the provisions of sub-sec. (1 ). The explanation to sub-sec. (2) also shows that merely because the relief asked for in the civil court is greater than or additional to, or is not identical with, that which the revenue court could have granted, the civil court could not have jurisdiction. The question therefore whether this suit is barred under sec. 7 will depend upon whether the relied by the plaintiff can be obtained by means of any suit or application of the nature specified in the First or Second Schedules of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951. The argument is that as Mst. Goran has filed a partition suit under item I, Group A of the First Schedule, which is pending in the revenue court, and the relief, which the plaintiffs seek in the present suit, can be obtained in Mst. Goran's suit in the revenue court, the jurisdiction of the civil court to entertain the suit is barred. We are of opinion that there is no force in this argument, for the relief, which the plaintiffs claim in this suit, can never be granted by the revenue court; The plaintiffs are claiming a declaration that they are owners of certain property and not Mst. Goran. Such a declaration can only be given by a civil court and cannot possibly be given in any suit filed under any item in the First or Second Schedule of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951. It is true that it is open to a defendant in a partition suit to object in the revenue court that the plaintiff is not the owner of the property. But, even where such an objection is raised, the revenue court cannot, under the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, decide that question of proprietary title and must act under sec. 36 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act. Under that section, if, a question of proprietary right in respect of land is raised in any suit or proceeding before a revenue court, and such question has not been previously determined by a civil court of competent jurisdiction, the revenue court is bound to frame an issue on the question of proprietary right and submit the record to a competent civil court for its decision. Further, when a civil court has decided that issue, the revenue court is bound to proceed to decide the suit accepting the finding of a civil court on the issue referred to it. Therefore, even where a plea of proprietary title can be raised in the revenue court, it is not that court which can decide that question. It has to refer an issue to the civil court and to follow the decision given by the civil court on that issue. it is thus clear that the revenue court has no jurisdiction to grant the relief claimed by the plaintiffs in this suit, and therefore sec. 7 (2) would not bar the jurisdiction of the civil court in the present case. The explanation to sec. 7 (2) also makes it clear that where the revenue court is able to grant a relief on the cause of action on which the suit is based, it is only then that the civil court's jurisdiction is barred. But where, as in a suit of this nature, the revenue court is not in a position to grant the relief, the suit will not be barred under sec. 7 (2 ). It may be urged that in view of the explanation to sec. 36 and because the plaintiffs and raised the question of proprietary title in the revenue court and had failed to persuade that court to frame an issue and refer it to the civil court, they are new barred from bringing this suit in the civil court. We are of opinion that this argument over-looks the fact that explanation 1 to sec. 36 (1) does not provide for the barring of the jurisdiction of the civil court, but merely gives a right to the revenue court, in certain circumstances to refuse to frame an issue on proprietary title. In such cases, we think that the person objecting in the revenue court has obviously two alternative remedies. He may go to the higher revenue court and ask it to set aside the order of the lower revenue court refusing to frame the issue of proprietary title. Or, he may directly come to the civil court and file a suit for declaration of the proprietary title which he claimed in the revenue court if such a suit is not barred under sec. 7 (2 ). The mere fact, therefore, that the revenue court refuses to frame an issue on proprietary title will not disentitle the person objecting in the revenue court from bringing a civil suit where the suit, which he brings in the civil court, is not in terms barred by the words of sec. 7 (2 ). In the case before us, we have already said that the present suit is not barred by the terms of sec. 7 (2), and therefore, the plaintiffs had both remedies open to them. They could either have gone to the higher revenue court and asked it to set aside the order of the Sub-Divisional Officer refusing to frame an issued on the question of proprietary title, or they could file a suit directly in the civil court. They have chosen the latter course, and we are of opinion that in view of the nature of the relief claimed, sec. 7 (2) does not bar their suit. We may in this connection refer to certain cases of the Lahore High court which in principle support the view we have taken, though the law there is slightly different. In Santi Singh vs. Basant Kaur (1) (AIR 1923 Lah. 81 (2 ).), a suit had been brought in the civil court for a declaration that the plaintiffs of that suit were owners of the property and the mutation of the name of a widow was incorrect. It appeared that the widow had obtained partition of her share, and the question arose whether the suit was maintainable. It was held that as a question of proprietary title had been raised in the revenue court, and that question had not been decided in the manner provided by sec. 117 of the Land Revenue Act, the plaintiffs were entitled to bring a civil suit to a establish their title. In Jawala Singh vs. Jagdish Singh (1) (AIR 1941 Lah. , 144.), a question of proprietary title was raised in a partition suit in the revenue court. That court decided that question summarily instead of proceeding under sec. 117 of the Land Revenue Act. It was held that such a finding of the revenue court will not bar the cognizance of the question by the civil court.
(3.) WE are of opinion that the District Judge was wrong in coming to the conclusion that the suit in this case was barred under sec. 7 (2) of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951. WE may point out that learned counsel for the appellants assures us that the partition suit in the revenue court has not yet been decided and that the question of proprietary right raised in this case has never been previously determined. What we have said above is subject to these assumptions. We, therefore, allow the appeal, set aside the order of the court below and direct that the District Judge should proceed to try the suit according to law. As the respondent has not appeared, we pass no order as to costs of this Court. Costs in the trial court will abide the event. .;