- (1.) THIS is a reference by the Civil Judge Pratapgarh under sec. 243 of the Rajasthan Tenancy Act, 1955 (No. III of 1953), and arises under the following circumstances.
(2.) THE proceeding out of which the present reference emerges was an application for redemption of mortgage of certain agricultural land by the mortgagor Nathu, and was presented in the court of the Sub Divisional Officer, Ghittorsgarh apparently under serial No. 5, Group B, First Schedule of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act (No. I) of 1951. THE mortgage was usufructuary, and was made in Svt. year 1992 (equal to 1935 A. D. ). THE application for redemption was filed in the court of the Sub-Divis'onal Officer on the 24th June, 1955 THE Rajasthan Tenancy Act (No. III) of 1955 came into force on the 15th October, 1955. THEn came the Rajasthan Tenancy First Amendment Act (No. XXVII) of 1956. This came into force on the 22nd September, 1956 After this Amendment Act came into force, the Sub Divisional Officer seems to have thought that the proceeding filed by the mortgagor Nathu for redemption of mortgage was not a matter which was exclusively within the purview of the revenue courts and so he transferred the same to the Civil Judge Chittorgarh. THE Civil Judge in his turn formed the opinion that the mortgager's suit or application (for the nomenclature does not matter) in the present case was exclusively triable by a revenue court in accordance with the provisions of the Rajasthan Tenancy Act, 1955, and consequently he has made the present reference. I have heard learned counsel for the mortgagor Nathu and the learned Deputy Government Advocate, and have come to the conclusion that the proceeding filed by Nathu lies within the exclusive jurisdiction of the revenue courts and therefore, a civil court has and would have no jurisdiction to entertain it. In this connection it is necessary to recapitulate briefly the state of legislation in so far as it bears on the jurisdiction to entertain suits for redemption of mortgages with respect to agricultural land. Although some varying decisions came to be given on this point in cases which arose under the Rajasthan Revenue Courts Procedure and Jurisdiction) Act, 1951, the position was finally settled by a Full Bench of this Court in Badri vs. Krishna (1) wherein the view taken in an earlier Division Bench case Krishna vs. Hema (2) to which I was a party was approved, and it was held that a suit for redemption of a mortgage in respect of agricultural land clearly fell within the spirit and intendment of sec. 7 of the Act, and that the circumstance whether the proceeding was called a suit and was initiated by a plaint or it may not be called a suit and may be initiated by an application would not make any material difference so far as the jurisdiction to entertain such proceeding was concerned. Then came the Rajasthan Tenancy Act (No. III) of 1955, which came into operation on the 15th October, 19. 5. Serial No. 2 of Schedule 1 of this Act did make a provision for suits relating to redemption of mortgages This was followed by the Rajasthan Tenancy (First Amendment) Act (No. XXVII) of 1956 by s. 55 whereof it was enacted that Serial No. 2 shall be omitted and shall be deemed to always have been omitted. It is unnecessary to speculate as to the reasons which might have led to the omission of this provision. The material question to consider is whether this provision made any difference as to the proper venue for suits in redemption of mortgages relating to agricultural land. I have given my most careful and anxious consideration to this question, and have come to the conclusion that the omission of serial No. 2 from the Schedule did not make any difference whatever as to the exclusive jurisdiction of the revenue courts to entertain such suits. Sec. 43 of the Act was left intact, and that section clearly shows that a suit for redemption of a mortgage was and would be a suit in respect of a matter which was covered by the provisions of the said Act. It is true that the application of the provisions of that section to all mortgages whether they were made before the commencement of the Act or after it came into operation was a matter attended with no small difficulty and was likely to affect rights which had already become vested before the Act came into force. It was on account of some such considerations perhaps that the Rajasthan Tenancy Act (Third Amendment) Ordinance (No. VI) of 1956 was brought into force on the 17th November, 1956. and this was followed by a corresponding Act before the Ordinance spent its force. As a result of the changes introduced by the aforesaid ordinance and the corresponding Act, a new sec. 43-A was added in the main Act which runs as follows - "43-A. Provisions in relation to mortgages of agricultural holdings effected before the commencement of Act - (1) Nothing in sec. 43 shall apply to any mortgage of a tenant's holding effected before the commencement of this Act and the rights and liabilities of the parties to such a mortgage shall, notwithstanding anything contained in sec. 4, continue to be governed by the terms thereof and by the law in relation thereto prevailing before such commence ment. (2) Any such right or liability may be enforced by means of a suit instituted by the person aggrieved in the court of the Assistant Collector having jurisdiction within the time, if any, fixed and on payment of the court fee prescribed, therefor by such law. " It is important to notice in this connection that by sec 4 of the Ordinance and the Third Amendment Act, it was enacted that sec. 43-A shall and shall be deemed always to have been so inserted in the main Act. This amendment which was brought into force on the 17th November, 1956 was clearly retrospective. As already stated above, the Sub-Divisional Officer transferred the present case to the court of the Civil Judge on the 23rd November, 1956. The position in law at that date clearly was beyond all shadow of doubt that a suit for redemption of the mortgage made by a tenant with respect to his agricultural land before the commencement of the Rajasthan Tenancy Act of 1955 was a matter clearly provided for by the Rajasthan Tenancy Act of 1955 and that any right or liability arising out of it was required to be enforced by means of a suit in the court of the Assistant Collector having jurisdiction. I have no manner of hesitation, therefore, in holding that the Sub Divisional Officer was entirely wrong when he transferred the present proceeding to the court of the Civil Judge. The reason is quite obvious. Sec. 43-A clearly provides for such suits in so far as they relate to mortgages made before the commencement of the Rajasthan Tenancy Act (No. III) of 1955. To my mind it is now equally clear that sec. 43 of the Act provides for such suits where the mortgages may have been made after the commencement of the Act. Between themselves, these two sections clearly indicate that the intention of the Legislature was that such suits were exclusively triable by a revenue court, and if so, no civil court would have jurisdiction to entertain them. My attention was invited in this connection to the language of sec. 207 (1) which provides that all suits and application of the nature specified in Third Schedule shall be heard and determined by a revenue court. An argument was then advanced that the Third Schedule of the Act does not contain any specific reference to suits for mortgages with respect to agricultural land. It was also urged in this connection that serial No. 2 which at one time existed in the original Act (No. III) of 1955 was subsequently deleted. The point that is sought to be made on the strength of the circumstances mentioned above is that sec. 207 (1) has perhaps no application to such a suit, and if that is so, then sub-sec. (2) will have no application, which gives exclusiveness of jurisdiction of the revenue court with respect to the suits and applications specified in the Schedule. Having given my careful consideration to this aspect of the case. I have arrived at the conclusion that there is no force in this contention. Sec. 207 undoubtedly refers to "all suits and applications of the nature specified in the Third Schedule". Granting that serial No. 2 stood deleted in the Schedule from the very beginning, we have serial No. 35 which runs in the following words - "35. General - Any other suit in respect of any matter arising under this Act, not specifically provided for elsewhere in this Schedule. " Similarly under Part II - 'applications" covered by the Third Schedule, we find serial No. 35 which deals with "any other appliacation in respect of any matter under this Act not specifically provided for elsewhere in this Schedule. The important words to notice in these serials are" in respect of any matter arising under this Act. " Now suits arising out of mortgages with respect to agricultural land are certainly matters provided for under secs. 43 and 43-A of the Rajasthan Tenancy Act (No. III) of 1955. Reading, therefore, these serials together with secs. 43 and 43-A and sub-sec. (1) of sec. 207, the conclusion is irresistible that a suit or application for redemption of a mortgage with respect to agricultural land is a matter arising under the said Act and though it has not been specifically provided for elsewhere in the Schedule, it is still generally provided for within the meaning of serial No. 35 of the schedule and is therefore a matter with respect to which no court other than a revenue court can take cognizance as provided under sub-sec. (2) of sec. 207. For the foregoing reasons, I hold that the application filed by the mortgagor Nathu for redemption of his mortgage made in the Svt. year 1992 was and is exclusively triable by a revenue court in view of the provisions of sec. 43-A and sec. 207 read with serial No. 35 of the Act, and that the mere circumstances that this proceeding was termed 'an application' under the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, and not "a suit" does not make any difference whatever to the conclusion to which I have come above ; for to give effect to such a distinction would set at naught the clear provision contained in sub sec. (2) of sec 43-A, and this cannot possibly be countenanced. Consequently, I answer the reference as above and hold that the present suit or application, be it called by any name, falls exclusively within the purview of the revenue courts, and the learned Civil Judge was right when he came to the conclusion that he had no jurisdiction to try it. In view of this conclusion, it must follow that the Civil Judge, Chittorgarh shall transfer this case back to the court of the Sub-Divisional Officer concerned for disposal in accordance with law and I order accordingly. There will be no order as to costs in this Court. . ;