SHARMA, J. - (1.) THE question for consideration in this appeal is as to whether the suit for partition and injunction with regard to an immovable property entered into revenue record as `abadi & Banjad land', is maintainable in the civil court?
(2.) THIS question has arisen in the circumstance set out herein below. A suit for partition and injunction was instituted by the plaintiff appellant (for short plaintiff) against the defendant respondents (for short defendants) in the Court of District Judge, Jaipur City Jaipur with regard to an immovable property bearing Khasra Nos. 225, 227 and 225/425 measuring 2 bigha 1 biswa situated in Village Madrampura near Commercial Complex Baldeo Plaza. In the plaint it has been averred by the plaintiff that the said property was jointly held by the parties and they have constructed their residential units over it. Alongwith the plaint a schedule describing the details of the property, has been appended. In the year 1968-69 proceedings of acquisition of said land were initiated by erstwhile Urban Improvement Board and in the year 1976 the said proceedings were completed and compensation was settled but subsequently an agreement had been entered into between the parties and the State Government under which a land measuring 330x9 ft. was agreed to be left for way at the disposal of UIT and the entire proceedings were dropped and for that a notification under section 48 of the Rajasthan Land Acquisition Act was issued and published in State gazette. In the award passed on conclusion of land acquisition proceedings the shares as settled by Collector was as under : Bherulal - 1/4th Sualal & Bansilal 1/4th Hiralal 1/4th Sri Moha 1/4th In the plaint it has been pleaded that parties and their predecessors have constructed their residential houses and started presiding. Open land describe din Schedule `ka' has been partitioned. Residential buildings of the parties have been shown in different colours in the schedule. All the inhabitants have their own electricity and water connection and they have been assessed for the Land and Building Tax also. The dispute between the parties is in existence for the last many years. The defendant No. 1 with the consent of the parties was authorised to solve dispute but was unsuccessful. The plaintiff had withdrawn his consent and took shelter of court for partition of the property. The suit was contested by the defendants by filing separate written statements. In the written statement submitted by the defendant No. 2 and No. 3 a objection had been taken to the effect that since the suit related to agricultural land, it was not triable by the civil court but could only be tried by the revenue court. The land in dispute was described as `banjad' and as such could be referred as agricultural land as no order for its conversion was placed on record. The suit therefore was triable by the revenue court. When the matter came up before the trial court for the arguments on the application for temporary injunction which was filed along with the plaint the trial court observed that since the dispute regarding the jurisdiction of the court was involved, it was necessary to decide the issue relating to jurisdiction prior to adjudicate the application for issuance of temporary injunction. Thereafter conferring jurisdiction under Order 39 rule 4 CPC the trial court granted permission to make construction with certain specific direction to defendant No. 1 in his dwelling portion. Against the said order, a Misc. Appeal was preferred before this Court. Vide order dated 29. 1. 1996, this court in S. B. Civil Misc. Appeal No. 722 of 1995 directed the trial court to decide issue relating to jurisdiction within twenty days. In pursuance to the said directions, the trial court framed following issue on 13. 2. 1996. *** (whether this court has jurisdiction to hear the present suit?)
(3.) THE trial court vide impugned order dated 16. 2. 1996 decided the aforementioned issue against the plaintiff and directed that the plaint be returned to the plaintiff for filing it before the Assistant Collector, having jurisdiction to try the matter. Hence this appeal. I have given my anxious and thoughtful consideration to the arguments advanced before me and perused the record. Mr. R. K. Mathur, learned counsel for the plaintiff submitted that the suit is basically a suit for partition wherein supplementary relief of permanent injunction has been sought. The suit for partition is triable by the civil court and as per section 9 C. P. C. the civil courts can try all civil suits except those which are expressly barred. A perusal of schedule annexed with the plaint clearly shows that construction over the land were made and the parties to the suit have been in possession of their respective dwelling portions which were duly allotted to the parties in the suit by the then Municipal Council Jaipur and these Nos. are 703 to 705. These houses were duly registered with the Municipal Council way back in the year 1960 and for that house tax is being paid. The Land and Building Tax Department Jaipur had assessed these dwelling units way back in 1975. The said property was held to be residential and commercial by the Land and Building Tax Department. The record of the department was placed before the trial court but it was not properly appreciated. The land in question is within the municipal limits of Jaipur City. As per land use plan of Jaipur of the year 1991 the land in question has been described as the area of high density. This master plan was prepared in the year 1976. In the plan the land in question has been shown as residential property. In the State Gazette of October, 1995 a Notification had been published which reveals that en- tire Jaipur region comes within the development area i. e. with the jurisdiction of the Jaipur Development Authority. Once another notification was published in Rajasthan Patrika daily dated 6. 2. 96 which shows that land starting from Churu Road and Ajmer Road towards Amanishah Nala was being converted into residential to commercial. The trial court itself granted permission to defendant No. 1 for making construction over the land and now observation that it had no jurisdiction to hear the case, is self contradictory. Major portion of the land in question has been entered as Abadi land and only 16 biswas of the land has been entered as `banjad' land. The land in question has never been used for agricultural purpose. Houses constructed over the said land are having domestic and commercial electricity con- nections. Inadvertently in the interim application instead of `bhoomi' word `krishi' had been mentioned and for its correction amendment application under Order 7 Rule 17 CPC was moved by the plaintiff. The trial court has committed illegality in not considering the provisions of section 242 and 256 of the Rajasthan Tenancy Act, 1955 (for short the Act of 1955 ). ;