PUSHPENDRA SINGH BHATI,J. - (1.) The petitioner has preferred this writ petition for the following reliefs:- "(a) by an appropriate writ, order or direction, order dated 07.12.2015 passed in Original Case No.5/2015 may kindly be quashed and set aside. (b) by an appropriate writ, order or direction, the Suit bearing No.50/2015 filed by the plaintiff/respondent before the court of learned Civil Judge, Pilibanga, Hanumangarh may kindly be rejected as non-maintainable before the civil court. (c) Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. (d) Writ petition filed by the petitioner may kindly be allowed with costs."
(2.) The instant petition has been filed against the order passed by learned court below on 07.12.2015 deciding a preliminary issue regarding jurisdiction of civil court. The facts as noticed by this court are that the plaintiff-respondent filed a civil suit for permanent injunction on the ground that the plaintiff-respondent was using a way for the last two decades to access his agricultural farm house from the land belonging to the defendant-petitioner, who are trying to obstruct the same.
(3.) The petitioner-defendant moved an application under Order 7 Rule 11 CPC pleading that the suit preferred by the plaintiff is barred by law as per provisions of Section 207 of the Rajasthan Tenancy Act, 1955. Section 207 of the Rajasthan Tenancy Act, 1955 reads as follows:- "207. Suits and applications cognizable by revenue court only- (1) All suits and application of the nature specified in the Third Schedule shall be heard and determined by a revenue court. (2) 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 suitor application. Explanation- If the cause of action is one in respect of which relief might be granted by the revenue court, it is immaterial that the relief asked for from the civil court is greater than, or additional to, or is identical with, that which the revenue court could have granted." The application was rejected by learned court below and an issue regarding the point was framed, which was also decided against the petitioner-defendant. Counsel for the petitioner-defendant has relied upon the provisions of Section 207 of Rajasthan Tenancy Act, 1955, which prohibits certain suits and applications, whereby cognizance is to be taken by the revenue courts only. Counsel for the petitioner points out list of such suits and applications given in IIIrd Schedule. As per Sr. No.81 of IIIrd Schedule, the disputes regarding way or easement or right to way etc., fall under the purview of Section 207. Counsel for the petitioner has further referred to Section 251 of the Act of 1955, which reads as follows : "251. Rights of way and other private easement- (1) In the event of any holder of land, in actual enjoyment of a right of way or other easement or right, having, without his consent, been disturbed in such enjoyment otherwise than in due course of law, the Tehsildar may, on the application of the holder of land so disturbed and after making a summary inquiry into the fact of such enjoyment and disturbance, order the disturbance to be removed or stopped and the applicant-holder to be restored to such enjoyment, notwithstanding any other title that may be set up before the Tehsildar against such restoration. (2) No order passed under this section shall debar any person from establishing such right or easement as he may claim by a regular suit in a competent civil court." Counsel for the petitioner submits that Section 251 is pertaining to right of way or other easement, therefore, it fall in entry No.81 of Schedule-III and has to be decided in accordance with Section 207 of the Act of 1955. Counsel for the petitioner, thus, has pointed out that the dispute apparently is about right of way and the petitioner is prohibited from maintaining the suit, thus, the impugned order of the learned court below is bad in the eye of law. Counsel for the petitioner has supported his case with the aid of precedent law rendered by this Court in Ram Narayan v. Mangi Lal & Ors., (S.B. Civil Revision petition No.25/2012, decided on 2.1.2014), reported in 2014 WLC (Raj.) UC 291 relevant para whereof reads as follows : "7. Reference was also made to Sr. 5, 8 and 8-A of the schedule appended to the Act, which provides for suit, application and appeal under the Act. It was further submitted that nowhere in the plaint, there is any whisper about easementary right and consequently, the judgment impugned deserves to be set-aside and the application deserves to be accepted. 8. Reliance was placed on the judgment of this Court in Ramchandra v. Lakha and Ors., 1971 WLN (Part-I) 97 , Ashok Chouhan v. Smt. Amri Bai and Anr., 2010(2) DNJ (Raj.) 776 , Mohar Singh v. Wazir Chand, 1969 RLW 347 . 13. In terms of Section 207 of the Tenancy Act and the 3rd schedule appended to the said Act, the suit for declaration of the plaintiff's right as a tenant, suit for declaration of any other right, and the suit for injunction are all maintainable before the revenue courts and in view thereof, the jurisdiction of civil court qua the said suit stands barred. 14. The plea raised by learned counsel for the plaintiff that as the plaintiff is seeking to enforce his rights under the agreement dated 2.7.2009, therefore, the suit is maintainable before the civil court has no warrant in law, inasmuch as, it cannot be said that if a right qua agriculture land/improvement arises based on agreement between the tenants/co-tenants of the land in question, the jurisdiction of revenue court is taken away. The enforcement of right by the plaintiff based on the title in his favour and the agreement executed by Smt. Hangami Bai does prevent him from such relief from the revenue court. 15. The finding of the trial court based on alleged easementary right said to have been claimed by the plaintiff in the reply to application under Order VII, Rule 11 CPC is wholly de hors the plaint wherein there is no averment about so-called easementary right and therefore, on that count also the order passed by the trial court cannot be sustained." Counsel for the petitioner, thus, made out a case of Section 207 of Rajasthan Tenancy Act read with IIIrd Schedule Entry No.81, which prohibits right of the petitioner to maintain a civil suit.;