BAPNA, J. - (1.) THIS is a petition under Art. 226 of the Constitution of India.
(2.) THE non-petitioner Khialiram instituted a suit in the court of Tehsildar, Tijara sometime in April, 1950, for recovery of possesion of certain agricultural holding under sec. 184 of the Alwar State Revenue Code. THE Tehsildar having held that the matter is for proceeding under sec. 7 of the Rajasthan Protection of Tenants Ordinance, moved the Assistant Collector of transferring the case to some other competent court and the Assistant Collector, Kishangarh, by an order dated the 20th April, 1950, transferred the case to the court of the Tehsildar Mandawar. THE Tehsildar decreed the non-petitioner's suit on the 31st of January, 1951. THE defendants' appeal to the Additional Commissioner, was dismissed and a revision to the Board of Revenue was also rejected by an order, the 1lth May, 1953. The petitioner has questioned the jurisdiction of the Tehsildar of Mandawar to decide the case and it is contended that the Board of Revenue failed to exercise their jurisdiction in refusing to set aside the decree passed by the Tehsildar of Mandawar. The argument is twofold. In the first place it is contended that the Assistant Collector had no power to transfer the case from one Tehsildar in his sub-division to another Tehsildar and, in any case, the Tehsildar of Mandawar had no territorial jurisdiction in respect of the subject matter of dispute. The Board of revenue while conceding that the Assistant Collector of Kishangarh had no jurisdiction to pass the order yet declined to interfere as the error was not shown to have affected the merits of the case and reliance was placed on sec. 22 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act. The second and more important contention is that on the 31st of January, 1951, the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act came into force and under that Act the suit was triable by the Assistant Collector. A provision was made in the Act under sec. 6 (2) for transfer of the case from a revenue court not entitled to hear any pending case to the court to declare to be so entitled under the Act. According to that provision, the Tehsildar of Mandawar should have transferred the case to the court of the Assistant Collector, Kishangarh. This objection was sought to be met by the Revenue Board by an observation that the Tehsildar decided the case on the 31st January, 1951, on which date also the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act was published in the Rajasthan Rajpatra and it could not be expected that the Rajpatra reached the Tehsildar before he proceeded to decide the case and therefore, the Tehsildar had committed no illegality in deciding the case. The reasoning adopted by the Board of Revenue does not take into account the provisions of sec. 5 of the General Clauses Act. Under sec. 5 (3) it is provided that unless the contrary is expressed a Central Act or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. Under sec. 5 of the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, the provisions of the General Clauses Act are made applicable to its interpretation and the Act therefore, came into operation immediately on the expiration of the 30th January, 1951, irrespective of the fact whether it did or did not come to the notice of the Tehsildar on that date. Learned counsel for the respondent relied on Abdul Haq vs. Maharaja Pateshwari Prasad Singh (1) (AIR 1946 All. p. 294.), which was also an authority relied on by the Board of Revenue for the contention that although the Act provided for the transfer of the case to another court yet disregard of that provision did not divest the court which had jurisdiction to proceed further and decide the case. The reasoning adopted by the Allahabad High Court does not appeal to us. In the first place the direction as to transfer of the case from the revenue court having no jurisdiction of the court having jurisdiction under sub-sec. (2) of sec. 6 is mandatory and further, under sub-sec. (1) of the same section all pending cases are declared to have been commenced under the Act and are to be heard and determined in the manner prescribed by or under the Act. The two sub-sections clearly took away the jurisdiction of the courts having seisin of the case, but declared incompetent under the Act to deal with those cases. In a recent decision of this Court Raj Rana Khumansingh vs. Chatur-bhuj (1954 R. L. W. 283) where the facts were somewhat similar as in the Allahabad case, it was held that the civil court was bound to transfer the case on the promulgation of the Rajasthan Revenue Courts (Procedure & Jurisdiction; Act to the revenue court competent under the Act to deal with the case and the judgment given on the 31st of January, 1951, in a case declared by the Act to be triable exclusively by a revenue court was invalid and without jurisdiction. The case in regard to the revenue courts is strengthened for sub-sec. (1) of sec. 6 declared the pending cases to be deemed to have been commenced under the Act and they are to be tried, heard and determined in the manner prescribed by the Act. Learned counsel appearing for the non-petitioner relied on sec. 22 of the Act and contended that even if there was lack of jurisdiction in the court, the decree could not be set aside unless the defect affected the merits of the case. This was also the line of reasoning adopted by the Board of Revenue. The omission of the words "from the jurisdiction of the court" which are found in sec. 2 of the Civil Procedure Code would not validate the judgment if the court had no inherent jurisdiction over the subject matter of the suit. In the schedule attached to the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, certain suits mentioned in items 17 and 21 are declared to be triable by the Tehsildar if the value is less than Rs. 300/-, but as regards other suits from item No. 1 to 29, no power is given to the Tehsildar to try the said cases, but they are declared to be triable only by an Assistant Collector. The present suit fell within items 10, 11 or 12 and the Tehsildar was divested of the jurisdiction to try such cases on the enforcement of the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act. Such a lack of jurisdiction could not be waived or disregarded even thing into consideration sec. 22 of the Rajasthan Act. It was contended by learned counsel for the petitioner that the defect had even affected the merits of the case inasmuch as he had raised a plea of res-judicata, but the Revenue Board declined to go into that plea on the ground that as a revisional court, it could not entertain that plea. It appears from the perusal of the judgment of the Board of Revenue that although an opinion has also been expressed on the merits of the plea it was observed that the Board will not go into the question in the exercise of revisional powers. The contention of the petitioner is that if the suit had been decided by the Assistant Collector, a second appeal lay to the Board of Revenue and he would then have got an opportunity to press the plea of res-judicata which was a question of law before the Board of Revenue. The Board has expressed an opinion on the merits of this plea and therefore, the grievance is not substantial. But the fact remains that the Tehsildar of Manda-war had no jurisdiction over the subject matter of the suit on the 31st of January, 1951 when he proceeded to give judgment in the case. In that view the petitioner is entitled to relief and the judgment of the Tehsildar Mandawar dated the 31st of January, 1951 is set aside and the subsequent judgment of the Collector, Additional Commissioner and the Board of Revenue are also quashed. The Tehsildar Mandawar is directed to transfer the case to the Assistant Collector having territorial jurisdiction who would proceed further according to law. The non-petitioner Khialiram will pay costs to the petitioner which are assessed at Rs. 50/ -. . ;