Modi, J - (1.) THIS second appeal by the plaintiff raises a short question as to jurisdiction inasmuch as the plaintiff's suit has been dismissed by the District Judge, Kotah, by his judgment and decree dated the 25th February, 1958, on the rinding that the suit was exclusively triable by a revenue court.
(2.) THE material facts bearing on the question of jurisdiction are, there fore, alone required to be stated. THE dispute centres round some 48 odd Bighas of agricultural land situate in village Badan, Tehsil Baran. Mst. Jadav, widow of one Gopilal Jat, was admittedly recorded as the last Khatedar of some 102 Bighas of agricultural land of which the land in dispute forms a portion. THE plaintiff's case is that Mst. Jadav granted a usufructuary mortgage of the entire land for a sum of Rs. 3000/-to the former by a registered mortgage-deed dated the 1st May, 1951. According to the plaintiff, defendant No. 1 Dhulilal alleging himself to be the heir of Mst. Jadav's husband Gopilal took forcible possession of the 48 odd Bighas of land on the 4th August 1951. THE plaintiff filed a suit in the court of the sub-Divisional Officer, Baran, for possession of this land which was decreed by him, but, on appeal, that decree was set aside right upto the revenue Board. This has led to the institution of the present suit by the plaintiff in the court of the Civil Judge, Baran, on the 3rd April, 1956. Put briefly, he prays for possession of the 48 odd bighas of land on the ground that the defendant Dhulilal is a clear trespasser with respect to it, and he has also claimed mesne profits for two years amounting to Rs. 674/- according to certain calculations which have been mentioned in the plaint but which may not be repeated for the purposes of the present appeal. Alternatively, the plaintiff claims that if possession is not allowed to him, then a decree be passed for the return of the entire mortgage money in his favour which amounts to Rs. 3000/- together with two years' mesne profits amounting to Rs. 674/- as stated above. Mst. Jadav admitted the plaintiff's claim in toto. The other defendant Dhulilal raised a number of objections to the suit, out of which the only one which is relevant to consider at this stage is that the civil court had no jurisdiction to take cognizance of and decide this suit as it was exclusively triable by a revenue court. The Civil Judge repelled the objection as to jurisdiction and decreed the plaintiff's suit for possession and mesne profits against defendant Dhuli Lal but dismissed it as against Mst. Jadav the other defendant. Dhulilal went up in appeal to the District Judge Kotah who by his judgment under appeal reversed the decision of the trial court on the question of jurisdiction and holding that the suit was exclusively triable by a revenue court dismissed the plaintiff's suit. Hence the present appeal. The only question to decide at the present stage, therefore, is whether the suit as brought by the plaintiff is exclusively triable by a revenue court or not. It is to be regretted that the contesting defendant respondent has not chosen to appear in this Court in spite of service. Be that as it may, I have examined the case with all the thoroughness which it deserves and have come to the conclusion that the finding of the learned District Judge on the question of jurisdiction is correct. From the analysis of the plaint which I have given above, it is clear that the plaintiff's suit is primarily one for possession against a trespasser with respect to an agricultural land. To my mind, such a suit inevitably attracts the provisions of sec. 183 of the Rajasthan Tenancy Act, 1955 (Act No. 3 of 1955, hereinafter referred to as the Act of 1955) which came into force on the 15th October, 1955, before the present suit was instituted on the 3rd April, 1956. The material portion of sec. 183 reads as follows: - "ejectment of certain trespassers.- (1) Notwithstanding anything to the contrary in any provision of this Act, a trespasser who has taken or retained possession of any land without lawful authority shall be liable to ejectment,. . . . . . on the suit of the person or persons entitled to admit him as tenant, and shall be further liable to pay as penalty for each agricultural year, during the whole or any part whereof he has been in such possession, a sum which may extend to fifteen times the annual rent. " There is a proviso to this section but with that we are not concerned in the present case. Item No. 23 of the Third Schedule of the Act of 1955 governs such a suit. I have no doubt that the plaintiff being a usufructuary mortgagee is certainly a person who would be entitled to admit the defendant or for that matter anybody else as a tenant to the land in suit within the meaning of sec. 183. Again, I am fully conscious that along with a prayer for possession of the suit land, the plaintiff has prayed for mesne profits also. Does such a suit fall within the ambit of sec. 183 ? I think it does. The section unmistakably lays down that the trespasser shall also be liable to pay penalty to the plaintiff obviously for his wrongful occupation of the land and also provides the measure for the grant of such penalty. The plaintiff therefore can ask for the recovery of this penalty in his suit under sec. 183. This to my mind is virtually "mesne profits" or at any rate indistinguishable from that in substance. This being the true character of the plaint, and it is settled law that, upon the substance of the allegations contained therein, the nature of a suit as to whether it is exclusively triable by a revenue court or not falls to be determined. I unhesitatingly come to the conclusion that reading item No. 23 of the Third Schedule together with sec. 183 and 207 of the Act of 1955 the present suit for possession and mesne profits squarely falls within the scope of these provisions and is a suit which is exclusively triable by a revenue court, and that the civil courts jurisdiction to take cognizance of such a suit is clearly barred. Learned counsel however contends that his is a composite suit in the sense that it contains not merely a prayer for possession of the agricultural land but also for return of the mortgage-money, and it is faintly submitted that such a suit can be tried only by a civil court. Now, broadly speaking, suits based on mortgage rights with respect to agricultural land have been provided for under sec. 43 and 43-A of the Act of 1955, and any right or liability arising thereout have to be enforced by means of a suit instituted by the person aggrieved in the court of the Assistant Collector having jurisdiction. See sec. 43-A (2 ). The position, however, does not seem to be as clear, as it ought to be, in the case of a usufructuary mortgage which the mortgage in question here is. But I confess I cannot see any principle why rights and liabilities under a usufructuary mortgage with respect to agricultural land should or can be treated differently in the matter of the forum for their determination from cases of other mortgages with respect to such land. In any view of the matter, we must look at the case of the plaintiff in its substance. His principal prayer is for possession of the agricultural land and that is his main cause of action. The other reliefs claimed by him are of a subordinate character. Attention may here be usefully drawn to the explanation to sub-sec. (2) of sec. 207 which lays down that ii the cause of action is one in respect of which relief might be granted by the revenue court, that is, may properly and lawfully be granted by the revenue court, it is immaterial that the relief actually 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 so that the correct legal position is that any of these varying factors would not be enough to pull the suit out of the jurisdiction of the revenue court. That being so, I am on the whole disposed to agree with the learned District Judge that the present suit was of a type which was exclusively triable by a revenue court and that the jurisdiction of the civil courts was barred with respect to it. There is one error, however, which the learned District Judge seems to have fallen into, and, that is that having found that the present suit was not triable by a civil court, he has gone to the length of dismissing it. I am clearly of opinion that he should not have done that and that the proper order to make under the circumstances was to have ordered the return of the plaint to the plaintiff for presentation to the proper court. I would refer in this connection to sec. 208 of the Act of 1955 which reads as follows: - "application of Civil Procedure Code.- The provisions of the Code of Civil Procedure, 1908 (Central Act V of 1908) except ; - (a) provisions inconsistent with anything in this Act so far as the inconsistency extends, (b) provisions applicable only to special suits or proceedings outside the scope of this Act and (c) provisions contained in List I of the Fourth Schedule, shall apply to all suits and proceedings under this Act, subject to the modifications contained in List II of the Fourth Schedule. " The effect of this section is that save to the extent their operation is excluded by the three clauses of sec. 208 set out above, the provisions of the Code of Civil Procedure would apply to revenue suits also. The point to note is that O. 7, r. 10 is not one of the provisions the operation of which has been excluded to revenue suits by this section. It must therefore follow that the applicability of this provision to revenue suits erroneously filed in civil courts is fully attracted There are judicial decisions also where it has been held that when a civil court finds that a suit is triable only by a revenue court and not by itself, it should return the plaint to be presented to the revenue court, and per contra, a revenue court has a power likewise. Thus it was held by the Allahabad High Court in Kallu vs. Phundan (l) that where the civil court holds that the suit is exclusively triable by a revenue court, the proper course for it is not to dismiss the suit but to return the plaint for presentation to the proper court. I am in respectful agreement with this view. In this view of the law, I hold that the learned District Judge was clearly in error when he dismissed the plaintiff's suit. What he should have done was to have ordered the return of the plaint to the plaintiff for presentation to the proper court. I order accordingly. For the reasons mentioned above, I partly allow this appeal and modify the judgment and decree of the learned District Judge and set aside his order dismissing the suit, and concurring as I do in his decision that the suit is properly triable by a revenue court only, I hereby direct that the plaint shall be returned to the plaintiff for presentation to the proper court. Under the circumstances, there will be no order as to costs in this Court and the courts below. . ;