Modi, J - (1.) THIS is a defendants' second appeal in a suit for share of produce regarding certain agricultural land, which has been decreed by both courts below. As the decision of this appeal depends on the short question of jurisdiction and that question goes to the root of the matter, only a few facts may be stated governing that matter.
(2.) THE dispute relates to a well called Dhaiwala with certain land appurtenant thereto measuring in all 29 Bighas situated in village Sanwatsar, Tehsil Kishangarh. THE case of the plaintiff was that he was a Muafidar of this well as well as its Bapidar, and that sometime in the Samvat year 2006 he gave the said land to the defendants at their request for being cultivated on certain conditions which are mentioned in paragraph three of the plaint and one of the main conditions with which we are concerned was that the defendants would give a half share of the entire produce to the plaintiff in addition to the Hasil. One other condition was that the plaintiff would supply the seed and the manure. THE case of the plaintiff then was that the defendants had taken away the entire produce themselves without paying anything thereout to the plaintiff and when called upon to do so flatly declined to pay any-thing to the plaintiff. Consequently, the latter instituted the suit, out of which this appeal arises, in the court of the Assistant Collector, Kishangarh, on the 13th October, 1952. In this suit he prayed that a decree for Rs. 400/- being the value of his half share of the produce be passed in his favour and against the defendants, and that if this was not allowed, then a decree for a sum of Rs. 326/12/-, the details of which are mentioned in paragraph four of the plaint, be awarded to him as being the expenses which he had incurred in connection with the cultivation at the well for the period in question. The defendants completely traversed the allegations made in the plaint and contended that they were Khatedar tenants of the land in question and had been in cultivatory possession of it from before 1947. It may be mentioned at this place that the Rajasthan Tenancy Act, 1955 (Act No. III of 1955, hereinafter called the Act of 1955) came into force on the 15th October, 1955. Sometime after that; an objection was raised on behalf of the defendants before the Assistant Collector that the suit was not triable by a revenue court, and, therefore, it should be transferred to a civil court. This plea unfortunately prevailed with the Assistant Collector and by his order dated the 28th November, 1955, he transferred this case to the court of the Civil Judge, Kishangarh. The Civil Judge tried the suit on the merits and decreed it holding that the defendants were merely sub-tenants and not a Khatedar tenants and that the allegations made by the plaintiff had been satisfactorily proved. Thereupon the defendants went up in appeal to the District Judge, Ajmer who dismissed their appeal. They have now come up to this Court in second appeal. The first and fore most question which has been raised by the defendants in this appeal is that the Civil courts had had no jurisdiction to take cognizance of this suit and dispose of it in accordance with the provisions of the Act of 1955 which had come into force before the Civil Judge had decided it on the 16th November, 1956. In support of this submission, reliance is placed on sec. 246 of the Act of 1955 and item No. 31 of the Third Schedule appended to the Act. I shall have occasion to refer to these provisions in some detail hereafter. On the side of the plaintiff respondent, it is vehemently contended that the defendants should not be allowed to raise this point in the present appeal particularly as it was at their instance and on their objection that the Assistant Collector had transferred the case to the court of the Civil Judge by his order dated the 28th November, 1955. It may be mentioned at this place that it is this argument which seems to have strongly appealed to the learned District Judge in dismissing the defendants' objection on the point of jurisdiction. Another ground on which the learned District Judge relied in this connection may be referred to here and that is that the provisions of sec. 244 were a complete answer to the stand taken by the defendants, inasmuch as that section provides that when in a suit instituted in a civil or revenue court an appeal lies to a civil courts an objection that the suit was instituted in the wrong court shall not be entertained by the appellate court, unless such objection was taken in the court of first instance and the appellate court shall dispose of the appeal as if the suit had been instituted in the right court. The question for decision, therefore, is whether the opinion formed by the learned District Judge on these points relating to jurisdiction is well-founded. I regret to have to say that my conclusion is that it is not. Sec. 206 of the Act of 1955 reads as follows : "206. Provision for pending cases etc. (1) All suits, cases, appeals, applications, references and proceedings relating to matters' dealt with in this Act, and pending before a revenue court on the coming into force of this Act, shall, subject to any specific provision of this Act to the contrary be deemed to have been commenced under this Act and shall be tried, heard and determined in the manner prescribed by or under this Act. (2) Any such suits, cases, appeals, applications, references or proceedings, which according to the provisions of this Act do not lie to or are not triable by the revenue court before which they are pending as aforesaid, shall be transferred to, and be heard and determined, in accordance with law, by the revenue court to which they lie or by which they are triable in accordance with the provisions of this Act. (3) Any such suit, application, case or proceeding, pending before a civil court when this Act comes into force which has been declared by sec. 207 to be exclusively triable by a revenue court shall be transferred by such civil court to the revenue court competent under sec. 217 to deal with and dispose of the same. (4) Any suits, applications, cases or proceedings other than those referred to in sec. 207, pending before a revenue court on the coming into force of this Act, shall be transferred by such revenue court to the civil court having jurisdiction to try, hear and determine the same. " Then sec. 207 provides that all suits and applications of the nature specified in the third Schedule shall be heard and determined by a revenue court. It then further provides that no court other than a revenue court shall take cognizance of any such suit or application. The question to see, therefore, is whether the present suit is one of which it can be properly postulated that it is exclusively triable by a revenue court within the meaning of sec. 207. This bring us to sec. 246 of the Act of 1955 which reads as follows : - "246. Arrears of revenue profit etc. Any person claiming any sum as arrear of rent, revenue or profit from the produce of land may bring a suit to recover the same. " I need hardly mention that land means agricultural land in this section, and this has been defined in clause (24) of sec. 2 of the Act. Then referring to the Third Schedule of the Act, we find item No. 31 which reads as follows : - S No. Section of the Act Description of suit, application or appeal Period of limitation Time from which period begins to run Proper court fees Court, Officer competent to dispose of 31 246 Suit for arrears of rent revenue or profits Three years When the arrears become due As in the Court-Fees Act. Tehsildar. Reading these provisions together, I have no hesitation whatsoever in coming to the conclusion that a suit for profits of agricultural land or a share therein is a suit which is exclusively triable by a Revenue Court within the meaning of sec. 207 of the Act and that the jurisdiction of the Civil Courts to try such a suit is completely barred by that section. I am further of opinion that by virtue of sub-sec. (3) of sec. 206, if any such suit was pending before a civil court which has been declared to be exclusively triable by a revenue court within the meaning of sec. 207 when the Act of 1955 came into force, then it must have been transferred by such civil court to the revenue court competent to deal with and dispose of the same. The next question is whether this result is in any way affected by anything else contained in the Act or by the conduct of the defendants. Taking up the latter point first, it seems to me that the learned District Judge was in error when he thought that the defendants were estopped from raising a point like this because they had in the trial court adopted an entirely contradictory stand and urged that the suit was triable by a civil court, and it was at their instance that the Assistant Collector transferred the case to the civil court. I say so for two reasons. The first is that there can be no estoppel against statute. The second is that if the view which found favour with the learned District Judge were to be accepted as correct, then the result would be that parties would be able to confer jurisdiction on a court where none exists. It is a well established proposition of law that consent cannot confer jurisdiction. All that being so, I feel bound to hold that whatever the defendants did or did not do cannot affect the proper decision on the question of jurisdiction which must be arrived at on the provisions of law relating thereto in the Act of 1955. I hold accordingly. The question which then remains to consider is whether there is anything in sec. 244 or for that matter in sec. 245 of the Act of 1955 which affects the conclusion at which I have arrived above. These sections read as follows: - "244. Plea in appeal that suit was instituted in wrong court.- When in a suit instituted in a civil or revenue court an appeal lies to a civil court, an objection that the suit was instituted in the wrong court shall not be entertained by the appellate court, unless such objection was taken in the court of first instance, and the appellate court shall dispose of the appeal as if the suit had been instituted in the right court. 245. Procedure when objection was taken in the court of first instance.- (1) If in any such suit an objection was made in the court of first instance and the appellate court has before it all the material necessary for the determination of the suit, it shall dispose of the appeal as if the suit had been instituted in the right court. (2) If the appellate court has not before it all such material and remands the case or frames issues and refers them for trial, or requires additional evidence to be taken, it may direct its order either to the court in which the suit was instituted or to such court as it may declare to be competent to try the same. (3) No objection shall be taken or raised in appeal or otherwise to any such order on the ground that it has been directed to a court not competent to try the suit. " The question is whether the present case falls within the introductory part of sec. 244, namely, "when in a suit instituted in a civil or revenue court an appeal lies to a civil court". For if it does not so fall, then neither sec. 244 will be attracted into application nor sec. 245. In other words, the question is, what is the true meaning of the clause "when in a suit instituted in a civil or revenue court an appeal lies to a civil court?" In my opinion these words only refer to that class of suits where no matter that it is filed in a civil or a revenue court, an appeal "properly" lies to a civil court. Such a case arises, where, for example, a question of properie-tary right is raised in the suit within the meaning of sec. 239 of the Act, for in such a case an appeal from the decree of a revenue court lies to a civil court and not to a revenue court at all. See sub-sec. (4) of that section. If that, however, be not the meaning of the clause in question as the learned District Judge seems to have thought, then it is clear that an appeal in a suit even wrongly filed in a civil court and which the civil court has no jurisdiction whatever to decide would always lie to a higher civil court, and, therefore, an objection as to jurisdiction could not be taken even in such cases at the stage of the appeal and the provisions of sec. 206 which have been fully set out above read with sec. 207 which bars the jurisdiction of civil courts to decide such suits will be rendered altogether nugatory. Such a result cannot be allowed, and, therefore, the meaning of sec. 244 (or for that matter of Sec. 245) cannot be what the learned District Judge has found. If the correct scope of these sections is as indicated by me above, as I think it is, it seems to me to be entirely impossible to hold that sec. 244 or sec. 245 could be attracted in the present case. As I look at the whole matter, the correct position on the coming into force of the Act of 1955 was that the present suit which was for a share of the profits of certain agricultural land stood rightly filed in a revenue court as it was exclusively triable by such court within the meaning of sec. 207 read with sec. 246 and item No. 31 of the Third Schedule of the Act of 1955 though it must be pointed out that such a suit fell within the jurisdiction of the Tehsildar and should have been transferred to that court by the Assistant Collector under sub-sec. (2) of sec. 206, and that the Assistant Collector had fallen into a serious error in transferring it to a civil court for trial and that the latter court had no jurisdiction to take cognizance or dispose of it. In this view of the matter, it cannot but be held that the judgments and decrees of the courts below were entirely without jurisdiction and must therefore be quashed as nullities. For the reasons mentioned above, I allow this appeal, set aside the judgments and decrees of the courts below and hereby send the case back to the court of the Civil Judge, Kishangarh with a direction that he shall transfer it to the Tehsildar, Kishangarh, who is competent to try this suit in accordance with item No. 31 of the Third Schedule read with sec. 217 of the Act. As all this time and labour which has been spent on the disposal of this case has been thrown away because of the attitude adopted by the defendants in the trial court, I hereby direct that they shall suffer the entire costs of this Court and the courts below themselves. . ;