- (1.) THIS is a second appeal by the defendant Pancha and it is directed against the judgment of the Civil Judge, Sojat, dated 26th of August, 1952.
(2.) THE suit was originally instituted in the court of the Tehsildar, Sendra, on 9th of September, 1948. THE plaintiff's case was that certain plots which were mentioned in paragraph No. 1 of the plain were got by him by a gift-deed dated 14th of September, 1911. and that he was in continuous possession of that property since that date. On 25th of June3, 1947, the defendant, without any lawful authority, dispossessed him, and, therefore, it was prayed that the defendants should be dispossessed from the disputed land and its possession should be restored to the plaintiff. It appears that this case was transferred to Munsif, Jetaran, and from the 26th of August, 1949, proceedings continued in the Court. THE case was ultimately decided by the same court on 29th of February, 1951 in the plaintiff's favour. THE defendants went in appeal and raised an objection that this suit was triable by revenue court and should not have been decided by the Munsif, Jetaran. THE first appellate court turned down that objection on the ground that there was no failure of justice and, therefore, sec. 21 of the Civil Procedure Code cured and the defect of jurisdiction, if there was any. Learned counsel for appellant has again raised the question of jurisdiction in this Court. It is contended by him that the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 (Act No. I of 1951) came into force on the 31st of January, 1951 and from that date onwards this case became exclusively triable by the revenue court. It is urged that according to sec. 6 of this Act the Munsif ought to have transferred this case to the competent revenue court and since he had no jurisdiction left to decide the case, the decree passed by him is a nullity and should be set aside. According to learned counsel, this case is covered by the First Schedule, Group B, item No. 10 of the said Act. Learned counsel for respondent has, on the other hand, urged that item No. 10 referred above can only be applicable if the suit is brought by tenant and that it is not available to a land holder The two points for determination for this Court therefore are - (1) Whether sec 21 of the Civil Procedure Code would cure the defect of jurisdiction in this case. (2) Whether the present case is covered by item No. 10, Group B, Schedule 1 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 and therefore it was exclusively triable by a revenue court. So far as the first point is concerned the learned Civil Judge was obviously in error in thinking that sec. 21 of the Civil Procedure Code was applicable. That section runs as follows - "no objection as to the phase of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settle, at or before such settlement, and unless there has been consequent failure of justice. " It is obvious from the language of the said section that it relates only to territorial jurisdiction. In the present case, the dispute is not about the territorial jurisdiction but about the subject matter of the suit. If it is once held that the case would be exclusively triable by the revenue court, then there would be an inherent lack of jurisdiction in the civil court and that defect cannot be cured. Coming to the second objection, learned counsel for appellant relies on Puria vs. Chaturlal (1 ). In that case, it was held that a suit for ejectment of a trespasser or for possession by a person who has been wrongly ejected or for compensation or for both is triable by a revenue court. Learned counsel has also referred to the case of Chandanmal vs. Dawar (2) in support of the same view. Learned counsel for respondent has on the other had placed his reliance on Nawalji vs. Jagji 3 ). In that case it was observed as follows - "item 12 Group B of the First Schedule to the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act. 1951, provides for a suit for recovery of possession by a person who has been wrongly ejected or for compensation or for both. The period of limitation is three years and this suit cannot be called a summary suit providing for a speedy remedy for in the revenue law, the maximum period of limitation is generally three years except in certain exceptional cases. It seems to me that item No. 12 Group B could not have been meant to provide the same kind of remedy which is provided under sec 9of the Specific Relief Act. The difficulty has arisen because of the use of the word 'person' and it may appear as if item 12 Group B Schedule 1 provides for a suit by anybody who might have been dispossessed. The implication however of this provision may in my opinion be inferred from the use of the words 'wrongly ejected'. Further, this item also provides of compensation It seems, therefore, that a suit under item 12 it is by a person who has some title as a tenant and has been ejected otherwise than in accordance with the provisions of the revenue law. " Learned counsel for respondent has urged that the language of item No. 10 is very similar to that of item No 12 and that the word 'ejectment' appearing in item No. 10 similarly suggests that the suit should have been brought by a tenant if this is sought to be applied. This contention is not tenable. In order to appreciate the distinction between the two items, it would be proper to reproduce them both. They run as follows - Item No. 10. For the ejectment of a trespasser, taking possession of land without lawful authority. Item No. 12. For recovery of possession by a person who has been wrongly ejected or for compensation or for both. In item No. 12, the period of limitation provided is three years and the words 'wrongly ejected' have also been used. Moreover, this item appeared to correspond to item No. 12 of Group B of the Fourth Schedule of the U. P. Tenancy Act 1939 and it was for these reasons that it was held in Nawalji vs. Jagji that a suit under this item could be brought by person who had some title as a tenant. In item No 10 these conditions are not present. In the first instance, the limitation provided is 12 years. Ordinarily, it is not expected that a tenant, who is ejected from his land, would wait for 12 years to bring his suit and, therefore, I do not think that the legislature contemplated that this item should apply to tenants. Then, the words used are tor the ejectment of trespasser taking possession of land without lawful authority. ! A landlord may as well be ejected by a trespasser without lawful authority and I do not see any reason why item No. 10 should be applicable only to the case of tenants. On the other hand, the cases cited above by learned counsel for appellant lend support to the view which he has put forward in this Court. In the present case, the plaintiff had come to the court with the clear allegation that he was in possession of the land and the defendants who were mere trespassers had dispossessed him no 25th of June, 1947, without any lawful authority and, therefore he had prayed for their ejectment and restoration of possession or the land to himself. This suit as framed was clearly covered by item No. 10 referred above and, therefore, after the said Act came into force, the Munsif Jetaran ought to have transferred the case to the Revenue Court under sec. 6 of the same Act, because thereafter he had no jurisdiction left to try and decide the case. In the case of Rajarana Khuman Singh vs. Chaturbhuj (4) a case was reserved for judgment before the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 came into force. It was held that the civil court had no jurisdiction left on the day of the decision of the case. A plea was raised from the other side that civil court may not have knowledge of the Act having come into force, but even that was repelled. Therefore even though this objection may not have been taken in the trial court, it had no jurisdiction to decide the case and its decree is, therefore, a nullity. The appeal is, therefore allowed, the decree of the trial court as also that of the first appellate court is set aside, the case is sent back to Munsif Jetaran with directions that he should transfer the case under sec. 6 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, to the competent revenue court concerned. In view of the fact that it was not brought to the notice of the trial court that it had no jurisdiction left to try the case, the parties will bear their own costs. . ;