- (1.) THIS is an application by Chimna under Art. 226 of the Constitution for a writ of certiorari and arises in the following circumstances: - Girdhari brought a suit against Chimna and his father Daula for ejectment from certain land. Girdhari claimed that the land was Bapidari tenancy of one Deda who died many years ago. His widow Mst. Suwati adopted Girdhari in October, 1948, and since then Girdhari was in possession of the land as the adopted son of Deda. He was forcibly ejected by Chimna and Daula in 1950. Consequently, he filed this suit in April, 1952. for, possession of the land on the ground that he was the rightful owner of the Bapidari rights in the land.
(2.) THE suit was resisted by the present applicant and his father and the case that appears to have been put forward on their behalf was that it was not open to the revenue court to decide the question of adoption as that was a matter of status and further that an issue should have been framed under sec. 36 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 (Act No. 1 of 1951) and referred to the Civil Court in this connection. Further, the case of the applicant before the revenue courts was that Girdhari had not been validly adopted as a son to Deda. The main issue thus in the case was whether Mst. Suwati had adopted the plaintiff Girdhari by a registered deed, dated 28th of October, 1948 and whether the adoption was valid. We must say that a curious view seems to prevail in the revenue courts about their right to decide a question like this. The Sub-Divisional Office, though he says that Girdhari had been proved to be the adopted son of Deda, qualified that finding with the words that it was not open to the revenue court to decide whether the adoption was valid and the registration according to rules and that this matter could only be gone info in the civil court. The Additional Commissioner seems also to hold the same view, for, he opined that though an issue could have been framed under sec. 36 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, it was not necessary to do so because the plea was untenable. He also did not decide the validity of the adoption. The learned members of the Board took the view that sec. 36 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 had no application as Deda was a tenant. They were also of the view that it was not necessary to decide the question of the validity or otherwise of the adoption because Girdhari had become a Khatedar by virtue of sec. 10 of the Marwar Tenancy Act, 1949. The first question, therefore, that arises for our determination is whether a question of status like the one in dispute in this case can be decided by the revenue court. We are of opinion that where such a question is raised as ancillary to or in support of claim to land or tenancy and where the suit for the land or tenancy can properly be filed in the revenue court, that court has ful authority to decide all such questions of status. The only question arising in suits before them which the revenue courts cannot decide and for which they have to frame an issue and refer it to the Civil Court are those mentioned in sec. 36 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951. But as rightly pointed out by the Board of Revenue, sec. 36 has no application in this case because this is admittedly a case of Bapidari tenancy which is not the same thing as proprietary right. Learned counsel for applicant referred to sec. 42 of the Specific Relief Act which gives power to civil court to give declaration as to status. But that section does not bar any court which is rightly seized of a case to give a decision as to status. In this connection reference was made to Peri Kameswar Rao vs. Peri Jagannadha Sastry (l ). That was, however, a converse case. There a person was in possession of a hereditary office and claimed to be so in possession by virtue of being the adopted son of the last holder. Another person filed a suit for a declaration that the person in office was not the adopted son of the last holder and the question that arose was whether such a suit was maintainable. The Madras High Court held that it was. The present suit, however, is different altogether. The case would have applied if Chimna had brought a suit to the effect that Girdhari was not the adopted son of Deda. But as that is not the position before us, we need not express any further opinion as to the correctness of the view taken in that case. Suffice it to say that where a person is out of possession and files a suit properly in a revenue court for possession or where a person files a suit for any right that he can properly claim and for which he can properly file a suit in the revenue court, that court has full jurisdiction to decide any question of status in case that question arises in the suit and it is only in that limited class of questions which are mentioned in sec. 36 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 that an issue has to be referred to the civil court. Therefore, the revenue courts in this case had full jurisdiction to decide about the validity or otherwise of the adoption to Deda and inasmuch as they did not do so, they have really not decided this suit at all. As for the view of the Board of Revenue that Girdhari acquired tenancy right under sec. 10 of the Marwar Tenancy Act, that section reads as follows: - "10. Subject to the provisions of sec. 11 every person who at the commencement of this Act is a tenant or who is after the commencement of this Act admitted as a tenant otherwise than as sub-tenant shall be a Khatedar. " It is enough to say that that section does not lay down that any person howsoever he may have come in possession of land be come a Khatedar under sec. 10 What it lays down is that a person who is in law a tenant on the date of the commencement of that Act becomes a Khatedar. Therefore, Girdhari had to show that he was in law a tenant on the date of coming into force of the Marwar Tenancy Act before he could take advantage of it. He had shown this by laying claim to the tenancy through his adoption to Deda and that matter being in dispute, had to be investigated before sec. 10 could be applied to Girdhari. We have not been able to understand what the learned members of the Board mean by using the expression 'having possession of the tenancy. ' Girdhari might have had possession of the land, but he could not have any right to the tenancy merely on the basis of possession. That right he only claimed by virtue of his being adopted as the son of Deda. Therefore, sec, 10, in our opinion could not be used by the Board of Revenue in this case to uphold the case of Girdhari. In the view, therefore, that we have taken, the case must go back to the Assistant Collector whose duty it will be to decide the question of the validity or otherwise of the adoption. Evidence already produced will stand but parties may lead further evidence on the question of the validity of the adoption. We, therefore, allow the application, set aside the orders of the revenue courts and direct that the Assistant Collector should decide the question in the light of the remarks made by us, and, therefore, the law will take its own course. In view of the circumstances, we order parties to bear their own costs of this Court. .;