Modi, J. - (1.) THIS is a reference by the Civil Judge, Banswara, under sec. 40 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 (Act No. 1 of 1951) (hereinafter referred to as the Rajasthan Act), and, has arisen under the following circumstances.
(2.) THE plaintiffs Sawa and Heera are brothers, sons of Deva. THEir case, as disclosed in the plaint filed in the court of S. D. O. Banswara is that they as well as their brother Nathu who has been impleaded as defendant No. 2 are bapidars of fields Nos. 63 and 65 of village Ban and have been recorded as such in the settlement record. THEy further alleged that, seven years ago, they executed an unregistered mortgage deed in favour of defendant Naki Mohd. for a sum of Rs. 230/- and that the said defendant got into possession of the fields. It is further alleged that the plaintiffs gave notice to the contesting defendant to hand over possession, in which they also said that they were prepared to pay the mortgage money, namely, Rs. 230/-, but the defendant declined to accede to their request. THE stand taken by the plaintiffs now is that as the mortgage deed executed by them in favour of defendant Naki Mohammed was unregistered, the mortgage was ineffective and conferred no title upon him and, therefore, he was a trespasser within the meaning of serial 1°, Group B, Schdl. 1 of the Rajasthan Act. THE plaintiffs, therefore, prayed that the defendant Naki Mohammed be directed to make over possession of the suit fields to the plaintiffs. The defendant Naki Mohammed resisted the suit mainly on the ground that Sawa being the Manager of a Joint Hindu family consisting of himself and his brothers had sold the suit lands to him for Rs. 150/- by a document dated the 24th June, 1947, and that though this document was also an unregistered one, he was entitled to the benefit of sec. 53 (a) of the Transfer of Property Act and, therefore, prayed that the plaintiffs' suit be dismissed. The Sub-Divisional Officer framed an issue as to whether the plaintiffs had any proprietary rights with respect to the suit fields and referred it to the Munsiff, Banswara. It appears that the Munsiff decided this issue in favour of the defendant. His finding was that the defendant had purchased the suit filed from the plaintiff Sawa and that he was entitled to the benefit of sec. 53 (a) of the Transfer of Property Act. The Sub-Divisional Officer on this finding dismissed the plaintiffs' suit. Thereupon they went in appeal to the Civil Judge, Banswara. The Civil Judge has now made the present reference, it having been contended before him that the suit was of a civil nature and could not have been tried by the revenue courts. The learned Civil Judge held the opinion that this suit was substantially a suit for redemption but that there was a divergence of opinion in this High Court as to whether suits as to redemption of agricultural land were exclusively triable by the revenue courts and, therefore, he has thought fit to make the present reference. I have heard learned Deputy Government Advocate ; no body has appeared before me on behalf of the parties. I have also carefully perused the plaint the terms of which I have set forth above. It was argued by the learned Deputy Government Advocate that, as opined by the learned Civil Judge, this suit was substantially a suit for redemption of a mortgage. I regret I cannot accede to this argument. The reason is, to my mind, simple. In the present case the plaintiffs, although they admit to have made a mortgage by virtue of an unregistered mortgage deed in respect of the suit lands, have avowedly stated in their plaint that they are not filing the suit for redemption, inasmuch as, such a suit on the basis of an unregistered deed of mortgage cannot succeed. The plaintiffs further have taken care to say that the defendant Naki Mohammed was a trespasser and that he was a trespasser because he had declined to give a possession of the suit lands even though they had offered him money. So far as the prayer in the plaint is concerned, it may again be pointed out that all that the plaintiffs seek is the restoration of possession, pure and simple, that is, without any payment of redemption money. In these circumstances, it would be going too far to hold that this is in truth and substance a suit for redemption of mortgage. 1 would take this opportunity of pointing out that, assuming that this was a suit for redemption of a mortgage, it would still be triable by a revenue court because the position, so far as this Court is concerned, may be taken to be perfectly settled now as a result of the decision of a Full Bench in Badri vs. Krishna (1) where all the previous cases bearing on the point were considered, and it was held that a suit for redemption of an agricultural land is and would be triable by a revenue court. If, therefore, I had come to the conclusion that the present suit is one for redemption of mortgage with respect to agricultural land, I should see no difficulty in answering the reference by saying that it is undoubtedly a suit of a revenue nature. A certain amount of difficulty, however, arises, as, in my opinion, the present suit is not a redemption suit and is a suit simply for possession of agricultural land. The question which then arises is ; whether serial No. 10 of Group B of the first schedule of the Rajasthan Act still applies to the case. It is argued before me as it seems to have been argued before the learned Civil Judge, that the defendant Naki Mohammed cannot be said to be a trespasser in the present case for the simple reason that he was let into possession by the plaintiffs themselves by virtue of the mortgage which they state to have executed in his favour. In support of this view, reliance is placed on a decision of a Bench of this Court in Gordhan vs. Kishanlal (2) in which it was held that serial No. 10 provides for a suit for ejectment of a trespasser taking possession of land without lawful authority, and that it does not include a suit for dispossession of a person who entered into possession lawfully but whose possession became unlawful by subsequent events. It is interesting to point out in this connection that the learned Judges thought fit to observe, while coming to the conclusion to which they did, that technically a person who wrongfully takes possession and a person who lawfully enters into possession but continues to be in possession unlawfully are both trespassers. The consideration which however, prevailed with the Bench was that serial No. 10 as it was worded covered only the cases of persons who entered into possession unlawfully in the first place and not the other type of cases and, therefore, in their view, serial No. 10 did not apply to a suit for dispossession of a person who had entered into possession lawfully but whose possession became unlawful by subsequents event?. This decision is dated the 6th May, 1954. It may be permissible to mention here that in a case which earlier came before me sitting singly (Deokishan vs. Bhagwandas, Civil Reference No. 22 of 1953, decided on 18th December, 1953 ). I felt persuaded to hold that serial No. 10 really speaking, covered not only the cases of persons who took possession of any agricultural land without lawful authority but also of those whose possession, though initially lawful became unlawful by subsequent events. As 1 stated there, a contrary view would lead to some sort of an absurdity inasmuch as where a person entered into possession of land unlawfully in the first place and the plaintiff wanted to bring his suit against him, such a suit would undoubtedly be covered by serial No. 10, but where such a person having come upon land in some sort of a lawful way continued to remain in possession thereof without lawful authority, e. g. , where a period of lease has been terminated, such a suit would have to be held to be of a civil nature. I also took into account in coming to the view to which I did the wording of sec. 80 of the U. P. Tenancy Act, 1939 the material portion of which runs as follows - "a person taking or retaining possession of a plot of land without the consent of the person entitled to admit him to occupy such plot and otherwise than in accordance with the provisions of the law for the time being in force, shall be liable to ejectment under this section on the suit of the person so entitled and also to pay damages. . . . . . . . . " It is clear from the wording of this section that the law places both the person taking unauthorised possession and the person retaining such possession on the same footing. Be that as it may, it seems to me that if the matter rested merely at that, 1 should have no option but to accept the view taken in the Bench decision in preference to the view held by me. . The matter, at this date has, to my mind, advanced further, and the Rajasthan Tenancy Act, 1955, (No. III of 1955) has come into force with effect from the 15th October, 1955. Serial No. 23 of the Third Schedule of this Act reads as follows: - Sl. No Section of Act. Description of suit application or appeal Period of Limitation 23 183 Suit for ejectment of trespasser. 12 years. Turning next to sec. 183 in this connection it clearly provides that, notwithstanding anything to the contrary in any provisions of the Rajasthan Tenancy Act. a trespasser shall be liable, if he has taken or retained possession of any land without lawful authority, to ejectment. . . . . It is clear that illegal assumption of possession and illegal retention of possession have been placed on the same footing under the provisions of the Act, as it now stands. The position, therefore, at this date, cannot be gain said that a suit for possession against a trespasser in either case will be exclusively triable by a revenue court under the provisions of section 207 of the Rajasthan Tenancy Act which corresponds to sec. 7 of the Rajasthan Act. In this view of the matter, there can be no doubt that a suit for possession with respect to an agricultural land against a person who unlawfully retains possession as much as against a person who came upon it unlawfully in the very first instance must be held to be a revenue suit and I hold accordingly. I need scarcely add that, on the allegation made in the plaint, the defendant Naki Mohammed is nothing but a trespasser and he was sued as such. A reference in this connection may be made to sec. 59 of the Transfer of Property Act, according to which where the principal money secured is Rs. 100/- or upwards a mortgage other than a mortgage by deposit of title deeds (with which we are not concerned in the present case) can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. Then sec. 49 of the Registration Act inter alia provides that no document required by the provisions of the Transfer of Property Act or sec. 17 of the Registration Act to be registered shall affect any immovable property comprised therein unless it has been registered. The position in law, to my mind, therefore, is that, according to the plaintiffs, the contesting defendant was either a trespasser from the very beginning, or, if that position is not accepted, then he was certainly a trespasser when he had been called upon to restore possession to the plaintiffs but declined to do so. In this view of the matter, I have arrived at the conclusion that the suit filed by the plaintiffs must be held to be governed by serial No. 23, Sahdl. 3 of the Rajasthan Tenancy Act as the law stands at this date, and is, there fore, a suit which is exclusively triable by a revenue court. I answer the reference accordingly. The case shall go back to the Civil Judge, Banswara, with this answer for proceeding with the appeal in accordance with law. .;