- (1.) THIS second appeal has been filed by the unsuccessful plaintiffs against an appellate order of the learned Addl. Commissioner, Jodhpur, dated 21st November, 1955, confirming the trial court's order to return the plaint to the plaintiffs for presentation to a proper court as it had no jurisdiction to try it after the promulgation of the Land Reforms and Jagir Resumption Act.
(2.) THE plaintiffs filed a suit before the sub-judge Balotra with the allegation that they are the jagirdars of village Meethura; that the respondents are their chhutbhais ; that the field and plots of land specified in the plaint belonged to them (defendents) and that the defendants unlawfully took possession of the same. It was prayed that possession over the land in question be restored to them and mesne profits amounting to Rs. 957/- be also decreed against the defendants. THE defendants in their written statement alleged that they were the co-sharers of the plaintiffs jagirdars and had 4 annas share in the jagir which included the land in dispute which had been in their possession since generations. THE learned sub-judge returned the plaint to the plaintiffs for presenting the same to a revenue court as in his opinion a suit of this nature was triable by a revenue court under sec. 94 of the Marwar Tenancy Act. Against this order an appeal was filed before the learned District Judge who also held the same view. THE plaintiffs then filed this suit before the Asst. Collector. THE Asst. Collector recorded the evidence and after hearing the counsel for the parties ordered on 16. 7. 55 that as the Rajasthan Land Reforms and Resumption of Jagirs Act had come into force, his jurisdiction in the matter was barred by sec. 46 of the Act read with sec. 22 of the Revenue Courts Procedure and Jurisdiction (Amendment) Act. Accordingly he ordered that the plaint be returned to the appellant for presentation to the proper court. Being aggrieved by this order the plaintiffs filed an appeal before the learned Addl. Commissioner who also held the same view and dismissed the appeal. It is against this order that a second appeal has been filed before us. We have heard the learned counsel for the parties and examined the record of the case. The learned counsel for the appellant admitted that the jagir in question including the disputed land has since been resumed under the Land Reforms and Resumption of Jagirs Act but the plaintiffs' suit in which one of the prayers was about compensation and which was instituted under sec. 94 of the Marwar Act remained unaffected to that extent and the trial court had jurisdiction to try and decide it on merits. The learned counsel for the respondent met this argument by emphasising that as a consequence of the resumption of the jagir a revenue court was barred under the provisions of secs. 22 and 46 of the Act to give any decision in a dispute which involved the determination of the rights of the parties on the land in question which along with the entire estate had since been resumed. He also urged that the trial court could not give a decree for possession over the disputed portion of the jagir which was no longer in the plaintiffs' possession, the mesne profits could not also be decreed. We have carefully read the pleadings and find that originally the suit was instituted under sec. 94 of the Marwar Tenancy Act, 1949 which reads as below - Ejectment of person occupying land without title. "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 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 which may extends to four times the annual rental value calculated in accordance with the sanctioned rates. " Under this section a revenue court was competent to pass a decree for ejectment as well as for damages. The same relief could be given by a revenue court under item 10, Group 8, Sch. I of the Revenue Courts Procedure and Jurisdiction Act which now on being repealed corresponds to Sec. 183 of the Rajasthan Tenancy Act, 1955. Section 4g of the Rajasthan Revenue Courts Procedure and Jurisdiction Amendment Act, 1931 referred to by the Asst. Collector only lays down that this Act shall not apply to powers exercisable by various grades of revenue courts and officers or by other authorities under any law, enactment, rule or order for the time being in force in Rajasthan or any part thereof in respect of resumption of Jagirs or recognition of succession according to law, to the rights and title of Jagirdars. In the case before us, no such question about right and title of a jagirdar to succeed to a grant, or its resumption is involved, and therefore the learned Asst. Collector was clearly wrong in applying this section to these proceedings. As the land in question as was as the Jagir has since been resumed, a revenue court is indeed barred under sec. 22 of the Land Reforms and Jagir Resumption Act from deciding the rights of any person on any portion of it and a claim for restoration of possession on a portion of the jagir which has since been resumed cannot be gone into by a revenue court. But none of these sections or any other provision of this Act can preclude a person from claiming mesne profits in respect of the land which was retained unlawfully in possession of any other person prior to the promulgation of the Land Reforms and Resumption of Jagirs Act and the proper court which could give this relief was that of the Asstt. Collector. The learned Addl. Commissioner incorrectly applied sec. 22, sub-clause (2), part B of the Land Reforms and Jagir Resumption Act to this case by saying that arrears of rent due to a jagirdar from tenants could be realised by the Govt. on the refusal of the tenants to pay. In this case there is no dispute about arrears of rent between a tenant and the jagirdar. On the other hand, it is clearly a dispute for recovery of mesne profits by a Chhutbhai Jagirdar against the bigger jagirdar. In our opinion, therefore, both the courts below acted illegally in returning the plaint for presentation to some other court. The result is that this appeal is allowed and the orders given by the learned Addl. Commissioner and the Asstt. Collector are set aside and the case is sent back to the Asstt. Collector Balotra to try and dispose it of on merits in accordance with law in so far as the prayer for mesne profits is concerned. .;