- (1.) THE writ petitioners, who were defendants in a revenue suit, by this writ petition, challenge the legality of the judgment of the Revenue Board dated 16th November, 1952 by which the Board held that the suit filed by the respondents Nos. 2 to 10 was triable by a revenue court and accordingly it reversed the order of the first court for returning the plaint. THE writ petition thus raises a short question whether the present suit was triable by a revenue court. We may outline the relevant facts -
(2.) THE defendants petitioners, who were residents of village Satlana in Jodhpur. district, were introduced as tenants of Khasras Nos. 764, 779, 806, 808 and 811 by the then Jagirdar of Ahore and had started cultivating them in Smt. 2012. Respondents No. 2 to 10 who were the villagers claimed that the Khasras in question formed part of the pasture land of the village, wherein the villagers had customary right for grazing their cattle from times immemorial. Accordingly they filed a suit on 22nd July, 1957 in the court of Assistant Collector, Jodhpur for a declaration that the disputed Khasras formed part of the pasture land of the village and they also asked for an injunction to restrain the defendants-petitioners from interfering with the grazing rights of the plaintiffs in the disputed land. THE defendants-petitioners raised objection before the court that the suit was not triable by a revenue court and the court accepted this objection and ordered the return of the plaint to the plaintiffs in accordance with O. 7, r. 10 Civil Procedure Code. THE plaintiffs-respondents then went in appeal to the Revenue Appellate Court but without any success. THEy then approached the Board of Revenue in revision THE Board held that the matter was concluded by a previous judgment of the Full Bench of the Board in Pancha vs. Hargovind (1 ). It was held in that case that the right to have a land declared as a pasture land cannot but be deemed to be a right conferred by the Rajasthan Tenancy Act and consequently a suit for declaration of such a right can properly be entertained by the revenue court under sec. 91 thereof. THE full Bench of the Revenue Board over-ruled an earlier Division Bench case of the Board, Daya vs. Lalsingh (Appeal No. 7/jalore/58, decided on 28th of October, 1960) in which it was held that a suit of this nature was not triable by a revenue court. A decision of this court reported as Uodu vs. Union of India (2) was cited before the Board, but it distinguished the same. It considered the case of Ramphal vs. Board of Revenue for Rajasthan and others, decided by this court on 30th October, 1961 and thought that this case went to show that the question whether a land is a pasture land or not has to be examined by the revenue courts themselves. THE Board also took into consideration the various provisions of the Rajasthan Tenancy Act, and came to the conclusion that as the right to have a land declared as a pasture land cannot but be deemed to be a right conferred by the Act such a suit can be properly entertained by the revenue courts under sec. 91 of the Act and sec. 92-A of that Act covered the suits for injunction in respect of such rights. Before discussing the cases relied on by the Revenue Board we may briefly refer to the relevant - statutory provisions relating to the jurisdiction of revenue courts. Sec. 207 of the Rajasthan Tenancy Act enacts that all suits and applications of the nature specified in the third schedule thereof shall be heard and determined by a revenue court and no court other than a revenue court shall take cognizance of any such suit or application based on a cause of action in respect of which any relief could be obtained by means of any such suit or application. Serials 5 to 9 of the third schedule relate to suits for declaration. They correspond to sec. 83 to 92-A of the Rajasthan Tenancy Act. While secs. 88 to 90 refer to declaration of tenancy rights, sec. 91 of the Tenancy Act is the residuary section and is in following terms - "91. Suit for declaration of other rights. Except' as otherwise specifically provided any person may sue for a declaration of all or any of his right conferred by this Act and not otherwise provided for. " Sec. 92 provides for suits for injunction and is in the following terms - "92. Single suit in respect of several holdings - A single suit may be instituted under the provisions of sec. 88 or sec. 89 of holdings, provided that the parties are the same. " The precise question, therefore, is whether the customary right to graze the cattle in a pasture land is a right which can be said to have been conferred by the Act within the meaning of sec. 91 of the Act. We have thus to examine whether there is any provision in the Tenancy Act which deals with such rights of grazing. Sec. 16 (l) of the Rajasthan Tenancy Act enacts that Khatedari rights shall not accrue in a pasture land. But this section does not deal with the rights in the pasture land. Sec. 5 (28) of the Act defines "pasture land" to mean the land used for the grazing of the cattle of a villages or villages or recorded in settlement records as such in accordance with rules framed by the State Government. This definition only enacts what lands are to be treated as pasture lands for the purposes of the Rajasthan Tenancy Act, but does not deal with the question as to how the villagers will enjoy the rights in pasture lands. For that we have to look to the provisions of the Rajasthan Land Revenue Act. Sec. 92 of the Rajasthan Land Revenue Act enacts that subject to the general orders of the State Government the Collector may set apart land for any special purposes such as for free pasturage of cattle and sec. 93 of the Rajasthan Land Revenue Act provides that the right of grazing on pasturage land shall extend only to the cattle of the village for which such land has been set apart and shall be regulated by the rules made by the State Government. Sec. 88 of the Act lays down that all lands where-ever situated which are not the property of individuals or of bodies of persons legally capable of holding the property are, except in so far as any rights of such persons or bodies may be established in or over the same, and except as may be otherwise provided in any law for the time being in force, declared to be the property of the State. It also provides that where any property or any right is claimed by any person it shall be lawful for the Collector after enquiry to pass an order deciding the claim. Sub-sec. (3) of sec. 88 of the Act contemplates the filing of suits in any civil court to challenge suck determination. The Rajasthan Tenancy (Government) Rules, 1955 referred to by the Board in its judgment provide as to how pasture lands will be demarcated and recorded in the settlement records; but they do not lay down anything about the exercise of customary rights of grazing by the villagers in such lands. The creation of rights of grazing is one thing and the demarcation of pasture lands in settlement record is quite another matter and we cannot infer that the rights of grazing by the villagers in the pasture lands are derived from the Rajasthan Tenancy (Government) Rules, 1955. Then there is S. 251 in The Rajasthan Tenancy Act, 1955 which provides for a summary remedy to a person where any right of easement has been disturbed and the Tehsildar may on an application by the aggrieved person order the restoration of the same. But here again it is expressly provided that no order passed under this section shall debar any person from establishing his rights by a regular suit in a competent civil court. This section again does not show that a customary right of grazing is conferred by the Rajasthan Tenancy Act, 1955. The existence of a right and how it is exercised are not the same thing. On the examination of the relevant provisions of the Rajasthan Tenancy Act, 1955, the Rajasthan Tenancy (Government) Rules, 1955, and the Rajasthan Land Revenue Act, 1956, therefore, we are satisfied that it cannot be postulated that the customary right of villagers in a pasture land can be said to be created by the Rajasthan Tenancy Act, 1955 within the meaning of sec. 9. 1 of that Act. It is obvious that a customary right stems from custom and is not founded on any statutory provisions. In Codu vs. Union of India (2) which was decided by one of us the scope of sec. 91 of the Rajasthan Tenancy Act, 1955 was examined. Codu and Shriram belonging to village Lordi filed a suit in the court of sub-Judge, Beawar and it was asserted by them that there was one pasture land of the village wherein the residents of the village were grazing their cattle for the last several years without any let or hindrances from anybody and the defendants had started cutting down the grass. A perpetual injunction was, therefore, sought against the defendants. The defendants raised a plea that the suit was not triable by the civil court. The Civil Court accepted this plea and accordingly sent the case to the revenue court. The revenue court, however, came to the conclusion that the case was not covered by any of the provisions of Rajasthan Tenancy Act, 1955 and consequently the revenue court thought that it had no jurisdiction to try the suit. The case was then referred to the High Court for resolving the conflict of jurisdiction. It was in this contest that the scope of sec. 91 of the Rajasthan Tenancy Act, 1955 came to be examined by this Court, and it was observed as follows : - "it is clear from the language of sec. 91 that any person may sue for a declaration of all or any of his rights conferred by this Act and not otherwise provided for. The words "not otherwise provided for" have been used in sec. 91, because the foregoing secs. 88, 89 also provide for certain suits for declaration under this section may be made only for all or any of the rights conferred by the Act. Learned counsel for the plaintiffs has not been able to show if his clients had brought the present suits for declaration of any of the rights, conferred by the Act and, therefore, he cannot rightly invoke the aid of sec. 91 of the Act. " It will be seen from this passage that the factor determinative of jurisdiction was whether any of the rights claimed could be said to have conferred by the Act. In Ramphal's case D. B. Civil Misc. Writ Petition No. 307 of 1959, decided on 30th October, 1961, relied on by the Board, the facts were that the respondents Gangadhar and Ramsingh applied to the Assistant Record Officer for being recorded as Khatedars of a certain Khasra on the ground that they had been in cultiva-tory possession for a long time. The Assistant Record Officer granted this application, and the opposite parties then approached the Settlement Officer, who allowed the appeal and quashed the order of the Assistant Record Officer holding that the entire land in question was 'gochar' land, and therefore, the applicants could not be recorded as Khatedars. The matter was then carried to the Board of Revenue who set aside the order of the Settlement Officer, and restored that of the Assistant Record Officer. This court felt that in dealing with the question whether the land was pasture land or not the authorised had not considered the definition of the term "pasture land" as given in sec. 5 (28) of the Rajasthan Tenancy Act, 1955, according to which apart from any thing else if the land was used for the grazing of the cattle of a village it was to be treated as pasture land. It was in these circumstances that the case was sent back to the revenue courts for a fresh decision after giving an opportunity of hearing to both the parties. From the fate of this case alone the Revenue Board inferred in the Full Bench case, that this court held;, that the matter was triable by revenue courts. It is obvious that in Ramphal's case no suit was filed and the controversy arose in the course of making entries in records during the settlement operations. Therefore, there was no occasion for this court to go into the question whether a suit for declaration of any land on the ground of customary rights of grazing the cattle was or was not triable by a revenue court. Sec. 91 of the Rajasthan Tenancy Act, 1955 as we have already observed was examined in Codu's case. The following observations of the Revenue Board in Pancha vs. Har Govind (l) will bring out the essentials of the reasoning of the Board : "the judgment of the High Court in Ram phool's case referred to above will go to show that the question whether a land is pasture land or not has to be examined by the revenue courts themselves. It will also go to show that it should be examined from the point of view both of its actual use as such as well as the record to that effect in the revenue papers. " This passage shows that the learned member of the Board have not properly appreciated the back ground of Ramphool's case. It has to be remembered that whereas civil courts are authorised to try all suits of civil nature unless their cognisance is expressly or by necessary implication barred, the revenue courts are courts of limited jurisdiction competent to try only certain specified matters. We have, therefore,, to see whether the cognizance by the civil courts is excluded and for it the court must come to a clear conclusion that the particular suit filed before the revenue court is one covered by any express provisions in the Rajasthan Tenancy Act. The present suit, to our mind, does not clearly fall within the preview of sec. 91 of the Rajasthan Tenancy Act, 1955 and as such we are unable to uphold the judgment of the Revenue Board. The result is that we hereby accept this writ petition, and setting aside the judgment of the Revenue Board, dated 17th November, 1961 we restore that of the trial court as confirmed by the Revenue Appellate Authority. The parties are left to bear their own costs. . ;