MODI, J. - (1.) THESE four appeals raise an identical question of jurisdiction.
(2.) THE facts out of these appeals arise are similar though not identical. In each of these cases, the plaintiff or plaintiffs claim to be Bapidar of certain agricultural lands which were situated in the former State of Mewar. It is further alleged that these persons were recorded as such in the settlement of Smt. 1998 but that the defendant who is the same in all these cases had got the Khadam right recorded in her name in 1957 A. D. , obviously after the Rajasthan Tenancy Act, 1955 (Act No. 3 of 1955) had come into force. At this stage it may be convenient to read the definition of Khadamdar in the Kanoon Maal Mewar, 1947 (Act No. 5 of 1957 ). Translated in English this definition reads as follows : "a Khadamdar or a Bapidar tenant is one who has been entered as such in the Khasra or Jamabandi or the Patta of certain land in a village. A Khadamdar's right is heritable according to law or custom. He will also have a right to sell, gift, mortgage or bequeath his rights to any one he likes. Further he will not be ejected until he pays the rent of the land regularly. " THE plaintiffs, however, claimed that they be declared as respective owners of the land or lands in question. The defendant resisted the suit on a number of grounds but it is necessary to mention only one out of them for the decision of these appeals, and that ground is that the suits brought by the plaintiffs were exclusively of a revenue nature, and that being so, the civil courts had no jurisdiction to take cognizance of them. A specific issue was raised on the question of jurisdiction in the trial court as to whether these suits were exclusively triable by a revenue court in accordance with the provisions of the Act of 1955. This question was answered by that court against the defendant and all the suits were decreed on merits. The defendant went up in appeal from these decisions to the District Judge, Bhilwara. The only question which was pressed before the court of appeal was that the finding of the trial court on the question of jurisdiction was erroneous as the suits were exclusively triable by a revenue court, and, therefore, the civil courts had no jurisdiction to take cognizance of and decide them. The learned Judge held that each of these suits was exclusively triable by a revenue court and that the trial court was wrong in holding that they were triable by a civil court. The learned Judge, however, further went on to hold that a question of proprietary title or right within the meaning of sec. 239 of the Act of 1955 arises in all these cases and in that view of the matter it was open to the civil court to decide an appeal carried to it according to the provisions of secs. 244 and 245 of the Act. Sec. 244 lays down that when in a suit instituted in a civil or revenue court an appeal lies to a civil court, an objection that the suit was instituted in the wrong court shall not be entertained by the appellate court, unless such objection was taken in the court of first instance, and the appellate court shall dispose of the appeal as if the suit has been instituted in the right court. Sec. 245 further lays down that where in any suit an objection as to jurisdiction was made in the court of first instance and the appellate court has before it all the material necessary for the determination of the suit, it shall dispose of the appeal, as if the suit had been instituted in the right court. Where, however, the appellate court does not have all such material before it and remands the case for some further action to be taken according to law, it may direct such proceeding to be taken either by the court in which the suit was instituted or by such court as it may declare to be competent to try the same. In this view of the matter, the learned District Judge repelled the objection as to jurisdiction as in his opinion, an appeal in all these cases lay to the civil court under sub-sec. (4) of sec. 239 and he had the necessary material before him to dispose of them on the merits. In these appeals by the defendant, the decision of the court below on the question of jurisdiction is hotly assailed on the ground that the learned District Judge was entirely wrong in holding that a question of proprietary right in respect of the land forming the subject-matter of these suits, arose in any of these cases, that as a matter of law no such question arose, and, therefore, the suits were exclusively cognizable by a revenue court and the civil courts had no jurisdiction to dispose of them. Now, in order to appreciate whether these suits involve a question of proprietary right, we must fairly and squarely look at the plaint as a whole and look at in its substance and not merely in its outward form. Attention may also be drawn in this connection to explanation (1) of sec. 239 which is in these terms - "explanation I.- A plea of proprietary right which is clearly untenable and intended solely to oust the jurisdiction of the revenue court shall not be deemed to raise a question of proprietary right within the meaning of this section. " The second explanation to this section further lays down that the question whether a particular land is Khudkasht or not will not fall within the meaning of the phrase "proprietary right" as used in this section. Now bearing these principles and provisions in mind, if we look at the plaints in these cases, all that has been claimed by the various plaintiffs is that they are "bapidars" of the several lands which form the subject-matter of these suits, that they were recorded as such in the Settlement of Suit. 1998 and that after the Act of 1955 came into force, the defendant somehow managed to have herself recorded as Khadamdar or which may now more appropriately be called a Khatedar with respect to them. It is true that the plaintiffs have loosely called themselves the Maliks of these lands and claim the Haq-i-Milkiyat or the right of ownership with respect to them. But it is obvious that they have never been owners of the land in the strict sense of the term at any time. I have given the definition of Khadam above from the Kanoon Maal Mewar of 1947 which occurs in Chapter V thereof and the title of which chapter is "haq Kashtakari" which clearly goes to show that the plaintiffs were tenants. I would also invite attention in this connection to sec. 27 of this Act which clearly lays down that His Highness the Maharana was and would be the owner of all land in Mewar. In this state of things, it is futile for the plaintiffs to say that they were ever owners thereof during the regime of the Mewar State. In fact the plaintiffs themselves accept in their plaint that they were recorded as Khadamdars or Bapidars, that is, a particular class of tenants in the Settlement of the State of Mewar which was made in Smt. 1998. Thereafter when the Act of 1955 came into force, the plaintiffs at the best could have become Khatedar-tenants thereunder, and no more, and it is this right only which they can and do essentially and substantially claim in these suits against the defendants. The question is whether a right like this can be treated or accepted to be a proprietary right. The answer to this question can only be in the negative. As I look at the matter, to say that a person who had been a tenant with respect to certain land or could have thereafter been recorded as such, is a proprietor of, or has proprietary right in, that land is a contradiction in terms. It may be that the Bapidar of the olden days in Mewar or a Khatedar under the Act of 1955 enjoys certain rights as respects the transferability or hereditability of the lands under his occupation but it will be an entire misnomer to call him a proprietor of such lands. It also appears from the plaint in each of these cases that these tenants had been paying rent to the State, and this is yet another ground for coming to the conclusion that they are not proprietors of lands. In these circumstances, I have no hesitation in coming to the conclusion that the finding of the learned Judge below that a question of proprietary title arises or has been raised in these suits is wholly erroneous and must be set aside. Once this is done, the conclusion is irresistible on the finding to which the learned Judge below himself came to the effect that the suits were exclusively triable by a revenue court, that the civil courts had no jurisdiction to take cognizance of them and the provisions of secs. 244 and 245 are not called into application in these cases with the result that the appellate court any more than the trial court had no jurisdiction to dispose of them by virtue of anything contained in those sections. I might here as well invite attention to sec. 88 of the Act of 1955 according to which any person claiming to be a tenant or a co-tenant may sue for a declaration that he is a tenant or for a declaration that he is a tenant or for a declaration of his share in such joint tenancy. The corresponding item in the Third Schedule relevant thereto is item No. 5. Sec. 207 (1) then lays down that all suits of the nature specified in the Third Schedule shall be heard and determined by a revenue court. Sub-sec. (2) of this section further lays down that no court other than a revenue court shall take cognizance of any such suit or application or of any 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. As I have already stated secs. 244 and 245 are not attracted in these cases for the simple reason that they do not involve any question of proprietary right. In this state of circumstances, the con-elusion is irresistible that the civil courts had and have no jurisdiction to entertain and dispose of these suits and therefore their decisions under appeal are a nullity in law, and they must be disposed of afresh by the revenue court concerned in accordance with law. For the reasons mentioned above, I allow these appeals, set aside the judgments and decrees of the learned District Judge and hereby send the cases back to the Civil Judge, Bhilwara with a direction that he shall transfer the same to the Assistant Collector, Bhilwara who appears to be competent to try them in accordance with item No. 5 of the Third Schedule for disposal in accordance with law. costs shall abide the event. .;