Modi, J - (1.) THIS is a revision by the plaintiffs Sukhdeo Ghutra and others against the orders of the Additional District Judge, Jodhpur, dated the 16th Oct. 1956 and the 21st December, 1956, transferring their suit, under sub-sec. (3) of sec. 206 of the Rajasthan Tenancy Act (No. III) of 1955 to the court of the Assistant Collector, Balotra, within whose jurisdiction the cause of action in the suit arose.
(2.) THE facts and circumstances of this unfortunate litigation leading up to the present revision may shortly be stated as folio vs. THE petitioners tiled their suit, in the first instance in the District Court Jodhpur, on the 23rd October, 1939. THEy claimed to be dolidars and alleged that 16 Halvas of land had been given to their ancestor Patal by Rao Jodhaji founder of the former Jodhpur State, in villages named Patasar and Hemasar (the latter is also known as Baghawas ). This grant was re-inforced by Maharaja Ajit Singhji of Jodhpur under a ''tamba Patra" granted to the plaintiffs' ancestor Kana in Svt. 1764. THE petitioners' case further was that they held 11 Halvas in village Patasar and 5 Halvas in village Hemasar or Baghawas and they gave the boundaries of these lands in the plaint. It was further alleged that the defendant opposite party Junjar Karan, Jagirdar of Baghawas, Tehsil Pachpadra, obstructed the tenants of the petitioners from carrying on agricultural operations in the aforesaid land and from cutting 'pala' and grass therein whereupon the petitioners filed a suit in the court of the Judicial Superintendent, Malani, for the relief of injunction only. As it was alleged that during the pendency of that litigation the opposite party Jagirdar had taken unlawful possession of some of the fields, the petitioners applied for permission to amend their plaint, apparently seeking the relief of possession also but this application was somehow dismissed. THE case of the petitioners thus was that the defendant opposite party had taken wrongful possession of considerable portions of their Doli land in the two vil-lages and that the opposite party was wrongfully claiming that the petitioners were merely tenants of the Thikana. Consequently, the petitioners instituted this suit for a declaration that they were Dolidars with respect to the 16 Halvas of land specified in the plaint and for recovery of possession of such portions of their Doli land of which the opposite party had taken unlawful possession and his ejectment therefrom and for a sum of Rs. 1800/- as mesne profits from 1933 to 1938 A. D. at the rate of Rs. 300/- per year and for further mesne profits from the date of the suit till the delivery of possession. This suit was presented in the court of the District Judge (No. II) in the former State of Jodhpur on the 23rd October, 1939. A preliminary objection was raised by the Jagirdar on the beginning of 1940 as to the competence of the civil court to entertain the suit on the ground that it was exclusively triable by a revenue court, according to the law which was in force at that time. This question came up for decision before the Revenue and Judicial Minister of the former State of Jodhpur who held that the suit was triable by a civil court. Accordingly the trial proceeded, and after the entire evidence was recorded, the case came to be fixed for judgment for the 23rd October, 19l3. For certain reasons, however, into which it is unnecessary to enter, the case was not finally decided by the trial court although it is said that arguments were heard a number of times by different judges, and the case was eventually transferred to the court of the Senior Civil Judge, Jodhpur (Sri Sukhdeo Mirdha) on the 16th February, 1953. At this stage, it may be mentioned that the jagir of Baghawis was resumed by the State under the Rajasthan Jagir Resumption Act and, therefore, the State was also added as a party. Mr. Sukhdeo having been transferred was appointed as a Special Judge to hear and decide the case as he had already heard part of the arguments therein, and the case again came to him for arguments on the 15th October, 1956, when, an application was moved on behalf of the opposite party that the suit was exclusively triable by a revenue court, inasmuch as it fell under serial No. 23 of Schedule III of the Rajasthan Tenancy Act (No. III) of 1955, and, therefore, it was exclusively triable by a revenue court, and the civil court had no jurisdiction to dispose of it. The learned Judge held by his order bearing the date i6th October, 1956, that the suit was triable by a revenue court. Thereupon the petitioners presented a review application to the same learned Judge which was also dismissed. The present revision has been filed from the aforesaid orders. The principal contention of learned counsel for the petitioners is that this was a dispute "between two rival claims regarding title to land" and was, therefore, triable by a civil court in accordance with the proviso to sec. 259 of the Rajasthan Land Revenue Act No. XV of 1956, and, therefore, the learned Judge of the court below was entirely wrong in transferring it to a revenue court. I have heard learned counsel for the petitioners and for the opposite party Junjar Singh, Jagirdar of Bagawas, and also the learned Deputy Government Advocate for the State. I have also been taken through, the plaint filed by the petitioners upon which the present litigation started. While on the one hand it was contended before me on behalf of the petitioners, as it was contended before the trial court, that the suit fell within the four walls of the proviso to sec. 259 of the Rajasthan Land Revenue Act, 1956, it was equally strenuously contended on behalf of the opposite parties that the proviso to sec. 259 had no application to the present case. The argument on behalf of the State was that the proviso should be rightly held to come into play where a question of title arises in a suit with respect to a matter arising under and provided for by this Act only, and where such was not the case it would have no application whatever as indeed the main provisions contained in sec. 259 in a suit with respect to a matter not provided for by this Act cannot be of any relevance for the decision of the question of jurisdiction. It was further contended that the present suit was clearly and substantially one for eviction of a trespasser and for recovery of possession, and that such a suit undoubtedly fell within the four corners of serial No. 23 of the Third Schedule to the Rajasthan Tenancy Act of 1955 and not the Rajasthan Land Revenue Act. Serial No. 23 provides for a suit for ejectment of a trespasser and it was urged that the Jagirdar opposite party was nothing but a trespasser within the meaning of clause (44) of sec. 5 of the Tenancy Act of 1955. While the matter was being so argued, it seemed to me that there was another aspect of the case which was an entirely legal aspect relating to jurisdiction, which called for consideration, and this other aspect almost went to the root of the matter so far as we are concerned at the present moment. This aspect revolves round sec. 37 of the Jagir Resumption Act (No. VI) of 1952, as amended by sec. 10 of the Rajasthan Act (No. XVII) of 1955. Sec. 37 reads as fallows : - "37. Question of title.- If in the course of a proceeding under this Act, any question relating to title, right or interest in any Jagir land, other than a question referred to in sec. 3 of the Rajasthan Jagir Decisions and proceedings (Validation) Act, 1955, arises and the question so arising has not already been determined by a competent authority, the Jagir Commissioner shall proceed to make an inquiry into the merits of the questions so arising and pass such orders thereon as he deems fit. " I would also refer in this connection to secs. 46 and 47 of the said Act, which are in these terms - "46. Bar of jurisdiction.- (1) Save as otherwise provided in this Act, no Civil or Revenue Court shall have jurisdiction in respect of any matter which is required to be settled, decided or dealt with by any officer or authority under this Act. (2) No order made by any such officer or authority under this Act shall be called in question in any Court. " "47. Act to over-ride other laws.- Save as otherwise expressly provided in this Act, the provisions of this Act and of the rules and orders made thereunder shall have effect notwithstanding anything therein contained being inconsistent with any existing Jagir law or any other law for the time being in force. " Now, so far as sec. 37 is concerned, it has come up for consideration before this Court in two cases : Rajvi Abhey Singh vs. The State of Rajasthan (1) and D. B Civil Regular First Appeal No. 3 of 1953 (Prabhulal vs. Ratan Singh), and 1 was party to the decision in the last mentioned case. In both the cases the jurisdiction of this Court was sought to be ousted by virtue of sec. 37. The principles deductible from the aforesaid two decisions may be summed up somewhat like this for the purposes of the present revision. (1) A question of title or right of interest in any jagir land may arise on the resumption of a Jagir under the Resumption Act. These questions may be of two kinds : (i) (a) relating to succession to Jagirs or (b) relating to resumption of Jagirs under the laws of the Covenanting States forming the present State of Rajasthan, and (ii) Other questions relating to right, title or interest in a Jagir other than covered by sub-clause (i ). (2) The questions covered by the first category fall outside the purview of sec. 37 and such questions will be governed by the provisions contained in the Raj. Jagir Decisions and Proceedings (Validation) Ordinance (No. VI) of 1955 followed by corresponding Act No. 18 of 1955. (3) As respects matters covered by the second category mentioned above, sec. 37 is clearly attracted into application where the question raised is one of title, right or interest in a Jagir, and the question so arising has not already been determined by a competent authority. (4) Where such a position arises, the Jagir Commissioner alone is invested with the authority to make an inquiry into the merits of the question of title so arising and dispose of it. (5) It has also been held that the Jagir Commissioner would have jurisdiction to deal with such matters where they may be pending before the court or tribunal, of the first instance, but not where they have already been the subject matter of a decision by a competent authority, and the matter then rests in the stage of a first or a second appeal, because where a determination has already been made by a court or a tribunal having lawful jurisdiction to decide it, it cannot be postulated that such determination was not by a competent authority. Now let us see how the aforementioned principles apply in the present case, or, putting the matter in another manner, whether section 37 is at all attracted, and if so, with what effect. Firstly, there is no doubt that the present litigation involves a serious question of title relating to certain land which is claimed by the petitioners as their Doli land but which on the other hand is claimed by the Jagirdar as part and parcel of his jagir, Secondly, the jagir of the opposite party has been, resumed under the Jagir Resumption Act, and the question of compensation to him is and must be very much before the Jagir commissioner. Thirdly, this question has nothing to do with the matters dealt with under the Rajasthan Jagir Decisions and Proceedings (Validation) Act (No. VI) of 1955, which have been expressly excluded from the ambit of sec. 37. Fourthly, this question has not already been decided by a competent authority, and in fact, though it is greatly to be regretted, it is still pending in the court of the first instance. Lastly, by virtue of secs. 46 and 47 of the Jagir Resumption Act, neither any civil nor any revenue court has jurisdiction at this date to decide the question of title which is required to be decided by the Jagir Commissioner under the Jagir Resumption Act. Having regard to what I have just mentioned above, I do not see how the application of sec. 37 of the Jagir Resumption Act can be resisted or avoided in the present case. To my mind, it cannot be. I confronted learned counsel for all the parties with this position, and they were unable to point out any circumstances by which the application of sec. 37 could be properly avoided. I, therefore, hold neither a civil court nor a revenue court has authority to decide the question of title involved in the present case, and the proper authority to decide it this date is the Jagir Commissioner in accordance with sec. 37 of the Jagir Resumption Act. The result is somewhat unfortunate, inasmuch as it may mean a further protraction of this old standing dispute between the parties but this cannot be helped in the circumstances of this case. There is one more point which needs mentioning. The main question raised by the petitioners is one of title and once that question is decided there should be no difficulty as to possession as it rests with the State and could be made over to the petitioners in the event of their success ; but some subsidiary questions have also been raised, and these pertain to the grant of mesne profits, pendente lite and future. It is impossible however, to decide these subsidiary questions until the principal question has been decided. Because it may be that if the petitioners lose their case on the question of title, other questions which are dependent on it may not arise for decision at all. On the other hand these questions are bound to arise for decision if the question of title is decided in favour of the petitioners. Having regard to the conclusion to which I have come, it is unnecessary for me at this stage to decide which is the proper authority, whether a civil or a revenue court, to adjudicate on these other matters. I, therefore, leave this question undecided for the present, and, am of opinion that in view of the order I propose to pass, it will be for the civil court, where the case was pending before its transfer to consider afresh whether that court will have jurisdiction to decide the questions other than of title which have been raised in this case after the question of title has been decided by the Jagir Commissioner. For the reasons mentioned above, I allow this revision and hold that it is and would be for the Jagir Commissioner to decide the question of title raised in this suit in accordance with the provisions of sec. 37 of the Jagir Resumption Act. Having regard to the peculiar history and circumstances of this case, it is further necessary to direct that the case will be withdrawn from the revenue court to the court of the Senior Civil Judge, Jodhpur, and will remain pending in the court of the latter until the Jagir Commissioner has decided the question of title and further the entire record of the case shall be sent to the Jagir Commissioner for deciding the question of title in accordance with law. I need scarcely add that as this suit has remained pending for decision for the last 18 years, it will be in the fitness of things if the matter of title is speedily decided by the Jagir Commissioner. After the Jagir Commissioner has decide the question of title, it would be for the Senior Civil Judge to consider afresh the question of the grant of the further reliefs mentioned above and claimed by the petitioners in the light of the circumstances then arising. The parties will appear before the Jagir Commissioner on the 4th November, 1957. Having regard to all the circumstances of the case, I make no order as to costs in this Court. . ;