- (1.) THIS is a reference by the Collector, Udaipur, under sec. 40 (1) of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 (No, 1 of 1951) (hereinafter referred to as the Revenue Courts Act), and has arisen under the following circumstances.
(2.) THE case of the plaintiff Bhoordan as disclosed in his plaint was that he had made a mortgage of certain fields with the defendants by an unregistered mortgage-deed for a sum of Rs. 155/- and as the mortgage was unregistered, the defendants could not at law acquire the rights of mortgages. THE plain-tiff therefore filed the present suit in the court of the Munsiff Rajsamand on the 2nd April, 1951, for possession of the suit lands, and the plaintiff further, alternatively, prayed that if the defendants be held entitled to any rights as mortgagees, then redemption of the suit lands be allowed on payment of such sum as may be found to be due from him. On the 28th July, 1951, the Munsiff sent this case to the Sub-Division Officer, Rajsamand, as he was of the opinion that the suit was of a revenue character. When the matter went before the Sub-Divisional Officer he seems to have entertained the view that the revenue court had no jurisdiction to entertain this suit and, therefore, he referred the matter to the Collector who has made the present reference. I wish to plaint out at the outset that the courts below have not cared to observe the correct procedure in acting in the manner in which they did. The Munsiff Rajsamand was in error when he himself sent the case to the Sub-Divisional Officer on the view held by him. Either he was in doubt as to his own jurisdiction to entertain the present case or he was not in doubt. If he was not in doubt and was clearly of the opinion that the suit was of a revenue character,he should have returned the plaintiff for presentation to the proper court. If, however, he entertained a doubt in this connection, the proper course for him was to have made a reference to this Court under sub-sec. (l)of sec. 40 of the Revenue Courts Act instead of sending the case himself to the Sub-Divisional Officer, Rajsamand. When the case reached the Sub-Divisional Officer, he was obviously of the view that he had no jurisdiction to entertain the suit. In such a case the proper course for the Sub-Divisional Officer was to have obtained the sanction of the Collector for the making of a reference to this Court under suo-sec. (3) of sec. 40 and made a reference himself What has, however, been done is that the Collector has made the reference in this case. This was, strictly speaking, not correct But as this point is merely technical, nothing turns upon it. Now, so far as the merits of the reference are concerned, the question to determine is whether the suit as filed by the plaintiff falls within the four corners of sec. 7 of the Revenue Courts Act. For this purpose we must go to the First and the Second Schedules appended to the Act, and see whether this suit is covered by any of the serials contained therein. I am of opinion that serial No. 5 of Group D of the First Schedule would cover the present case. This serial reads as follows: - Group D: - Applications triable by Sub-Divisional Officer. (5) By a mortgagor for redemption of land and for re-delivery of possession. Having given my careful consideration to the facts and circumstances of the present case as disclosed in the plaint, I hold that the present suit is substantially for redemption of a mortgage. I take note of the fact that as far as Group D of the First Schedule is concerned, it only applies to applications and not to suits as such. That, however, does not make any difference whatever to the question of jurisdiction because what we must essentially look to in order to decide the question of jurisdiction is the real character of the proceeding for relief and not the name by which it may be called. So far as this aspect of the matter is concerned, I may refer to a decision of this Court in Kishna vs. Hema (l) to which I was a party, in which it was held that so long as the subject matter of the plaintiff's action fell within the exclusive jurisdiction of the revenue courts, the mere circumstance that the plaintiff field a suit instead of an application would not be sufficient to oust the jurisdiction of the courts having exclusive jurisdiction, I have, therefore, no hesitation in coming to the conclusion that the present suit is covered by serial No. 5 of Group D read with sec. 7 of the Revenue Courts Act. I may also draw attention to the explanation appended to this section, which is in these terms: - "if the cause of action is one in respect of which relief 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. " The conclusion in the circumstances of the case must, therefore, be that this is a suit which is exclusively triable by the revenue courts. This reference is accordingly rejected and the case sent back to the Sub-Divisional Officer, Rajsamand, with a direction that he will try it according to law. There will be no order as to costs in this Court. .;