- (1.) THIS reference is by a Division Bench of this Court, and the question referred is as follows: - "whether a suit for redemption of agricultural land is triable a civil or a revenue court?"
(2.) THE facts leading to this reference may be briefly mentioned. Kishna and Kana filed a suit in the court of the Munsif, Jaipur in November, 1946, for redemption of agricultural land and two wells attached to it. THE Munsif held on the 14th of April, 1949, that the suit was triable by a civil court. THEreupon, there was a revision by the plaintiffs, and this Court held in July, 1950, that the suit was triable by the civil court. When the record when back to the Munsif, and proceedings began again, the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act (No. I) of 1950 (hereinafter called the Act) came into force. THEreupon the Munsif held that, in view of secs. 6 and 7 of the Act, the suit was triable by the revenue court, and accordingly transferred it to the court of the Sub-divisional Officer. THEreupon, the defendant filed this revision against the order of the Munsif, and his case is that the suit is triable by the civil court. The matter came before a learned Single Judge of this Court, and it was urged before him that as under the laws of the former State of Jaipur no application could be made in respect of redemption in a revenue court, the revenue court could not have jurisdiction to decide redemption suits or applications under the provisions contained in Schedule I, group D, item 5 of the Act. The learned Single Judge thought it fit, in view of the important point raised before him to refer the matter to a Division Bench. The case came before the Division Bench on the 7th of the October, 1955 Before that however a similar point was decided by a Divisional Bench at Jodhpur, which is reported as Kishna vs. Hema (l) (hereinafter to be referred to as Hema's case ). Another Bench of this Court had also considered this question of the jurisdiction of the civil or revenue court in the matter of redemption suits, and came to a conclusion which was contrary to Hema's case, (vide Kishna vs. Gheesa (2) (hereinafter to be referred to as Gheesa's case. Unfortunately the earlier decision in Hema's case was not brought to the notice of the Bench deciding Gheesa's case. Therefore when the present case came before another Division Bench on the 7th of October, 1954, and this conflict of opinion came to light, the present reference has been made to a Full Bench. The question, therefore, which the Full Bench has to decide is whether the view taken in Hema's case is correct, or that in Gheesa's case. Before we consider the reasoning in the two cases, we propose to look into the provisions of the Act, and the powers it confers on the revenue courts in the matter of redemption of land. Item 5, Group D, Schedule I, provides for applications by a mortgagor for redemption of land and for redelivery of possession. Sec. 7 of the Act provides for the power the revenue court to deal with such applications, and this power is in these terms: - "all suits and applications of the nature specified in the first and second schedules shall be heard and determined by a revenue court. " Thus the Act gives power to the revenue court to her and determine all applications by a mortgagor for redemption of land, and for redelivery of possession. The revenue court thus has full power to order redemption of the land mortgaged, and to order the mortgagee to put the the mortgagor in possession. This power it can exercise after hearing the defence of the mortgagee, and it has the authority to reject the defence if it considers, in the particular circumstance of the case, that the defence is not valid. In effect, therefore, though the proceeding under item 5 of Group D of the First Schedule starts on an application it is in no way different from a suit for redemption of mortgaged land. The court before which such application is made, has full power to decide all questions raised by the mortgagee in defence, and thereafter order redemption of land, and re-delivery of possession. A proceeding therefore, under item 5 though it starts with an application is in reality a suit, and the revenue court has been given full power to decide what it considers proper after hearing both parties. Let us now turn to the reasoning in the two cases with which we are concerned, namely Hema's case and Gheesa's case (1 & 2 ). In Hema's case it was conceded before the Bench that after the coming into force of the Act, it was only the revenue court which would have proper to entertain a proceeding in the nature of a redemption suit through an application under item 5, Group D of the First Schedule. Consequently, it had not become necessary in that case to define the power of the revenue court under item 5, and to consider the applicability of sec. 60 and sec 83 of the Transfer of Property Act. In Gheesa's case (2) these two sections of the Transfer of Property Act were considered, and the view that seems to have been taken was that the application provided in item 5, Group D of the First Schedule was merely an application under sec. 83 of the Transfer of Property Act. With all respect to the learned Judges, who decided that case, we must say that they overlooked the implication of sec 7 of the Act which gives powers to the revenue court to hear and determines all suits and applications provided in the schedules of the Act. We have already set out what this power of the revenue court is to hear and determine an application under! item 5 for redemption of land and re-delivery of possession. Under item 5, the revenue court has full power to decide all matters of dispute between the parties, and to come to the conclusion that the land should be redeemed and possession re-delivered. Sec. 83 of the Transfer of Pro-perty Act is altogether different, and provides for an inexpensive remedy relating to mortgages so that suits under sec. 60 of the Transfer of Property Act may be avoided. But the Court hearing an application under sec. 83 of the Transfer of property Act has very limited powers, and the exercise of those powers depends upon the express consent of the mortgagee. The procedure under this section is that the mortgagor deposits in court such sum as he considers to be due to the mortgagee. Thereupon, the court gives written notice of the deposit to the mortgagee. It is for the mortgagee then to appear and make an application stating the amount due, according to him, on the mortgage, and his willingness to accept the money so deposited in full discharge of such amount. If the mortgagee expresses such willingness, he can apply to the court to take away the money deposited by the mortgagor, and in return deposits all documents in his possession relating to the mortgagee. Further where the mortgagee has expressed his willingness to accept the money, and has applied for payment of the money to him, the court is given power to order the mortgagee to deliver back the possession to the mortgagor, in case the mortgagee is in possession of the mortgaged property. It is thus clear from this analysis of sec 83 that any action by the court under that section, after notice had been given to the mortgagee depends upon the express consent of the mortgagee to accept the money so deposited. If the mortgagee does not appear in court in reply to the notice,or if he appears in court and objects to receive the money, the proceedings under sec. S3 become infructuous, and the mortgagor is left to his remedy by a suit under sec. 60. Comparing this nature of an application under sec. 83 of the Transfer of Property Act with the nature of the application under item 5, Group D of the First Schedule, and comparing the powers of the respective courts in dealing with applications of these two kinds, it cannot, in our opinion, be said that an application under item 5 is nothing more than an application under sec. 83 of the Transfer of Property Act. The view taken in Gheesa's case (2) was that the application under item 5 is really an application under sec. 83 of the Transfer of Property Act, and no more, and this, as we have respectfully pointed out, was due to overlooking the provision of sec. 7 of the Act, which gives full power to the revenue court to hear and determine an application under item 5, and to order redemption of land, and redelivery of possession after taking into account the defence, if any, of the mortgagee. We may also point out that if, on notice being issued of an application under item 5 of Group D of the First Schedule, the mortgagee does not appear, the revenue court has full power to deal with the case ex part, and order redemption and redelivery of possession if it is satisfied on the ex parte evidence that this should be so done. We have already pointed out that no such action is possible under sec. 83 of the Transfer of Property Act, where the court can any act on the express willingness of the mortgagee to receive the money in full discharge of the mortgage debt. It may also be pointed out that item 2 nowhere refers to sec. 83 of the Transfer of Property Act in express terms, and therefore we cannot confine it to that section only when we take into account the words of sec. 7 of the Act. We may, in passing point out that the reference by the Munsif in Gheesa's case (2) was incompetent under sec. 40 of the Act, because what the Assistant Collector had done was merely to refer certain issues to him under sec. 36 of the Act for decision, and all that the Munsif had to do was to decide the issues referred to him as best as he could. He had no authority under sec 40 to make any reference to this Court, for the Assistant Collector never raised the question of a conflict of jurisdiction between the revenue court and the civil court. The decision in Gheesa's case (2) was based only on this one point which, we have examined. Let us now turn to Hema's case (1 ). It was conceded in that case that after coming into force of the Act all cases connected with redemption of land had to be filed in the revenue courts in the form of an application under item 5, Group D of the First Schedule, and that no suit could be filed for redemption in a civil court. It was however, urged that So far as pending suits were concerned, they could not be transferred to the civil court under sec. 6 as they were suits and not applications for redemption of land. That point was considered at length in Hema's case (1), and all that we need say is that we respectfully agree with the view taken there and expressed to the following words at page 181 - "the argument that in the other case where such a proceeding is called a "suit", the provisions of sec. 6 (3) are not attracted and that a civil court can continue to exercise its jurisdiction over such a suit is not and cannot be valid because what we must look to according to the scheme of the Act, is the cause of action or the nature and content of the proceedings rather than the nomenclature thereof. " "in this view, a suit for redemption of a mortgage in respect of agricultural land, even though it was pending at the time the Rajasthan Revenue Courts Act came into force, undoubtedly falls within the spirit and intendment of sec. 7 of the Act; and, once that is held, it must inevitably fall within the mischief of sub-sec. (2) of sec. 6 thereof.
(3.) THE fact, therefore, that the proceeding was called a suit and was initiated by a plaint under the law as it existed before the Act came into force, and is now not called a suit and is initiated by an application will make no difference so far as the jurisdiction of the revenue courts to deal with such previously instituted suits is concerned. Before we leave this matter, we should like to refer to the Rajasthan Tenancy Act (No. III) of 1955, which has come into force since the 15th of October, 1955, and has repealed the Act. Sec. 206 of the Rajasthan Tenancy Act corresponds exactly with sec. 6 of the Act. Sec. 207 of the Rajasthan Tenancy Act corresponds exactly with sec. 7 of the Act. What we, have, therefore, said about Secs. 6 and 7 of the Act applies equally to Secs. 206 and 207 of the Rajasthan Tenancy Act which is now in force. Further, though there is no provision exactly corresponding to item 5 Group-D of the First Schedule of the Act in the Rajasthan Tenancy Act, there is a much wider provision in the Third Schedule, Part I, dealing with suits, at item No. 2. This provision is for redemption of mortgages, so that now suits for redemption of mortgages will lie in revenue courts. In item No. 2 there is no limitation as to what kinds of mortgages can be redeemed in the revenue courts. Limitation is to be found when we read the definition of revenue court in sec. 5, sub-sec. (35) read with the definition of land in Sec. 5 sub-sec. (24 ). These two provisions make it clear that revenue courts shall only deal with suits or other proceedings relating to agricultural tenancy, profits and other matters connected with land, or any right or interest in land. These courts do not deal with matters which are not connected with land as defined in the Tenancy Act. Therefore, the present position is that a suit for redemption of mortgages relating to land have to be filed in the revenue court under item No. 2 of the Third Schedule, Part I. We should like to add that it would have been much better if item No. 2 Part I of the third Schdl. itself made it clear, as did item No. 5, of Group D of Schedule I of the Act, that item was applicable only to land as defined in the Act. Our answer, therefore, to the question put to the Full Bench is that a suit for redemption of agricultural land is triable by a revenue court. Let this answer be returned to the Bench concerned. . ;