- (1.) THIS is a reference under sec. 243 of the Rajasthan Tenancy Act, 1955, and arises in the following circumstances:
(2.) PLAINTIFF Meghraj filed a declaratory suit in the court of Munsif Kapasan on 15. 12. 55. It was averred by him that an agricultural plot of land No. 991, the boundaries of which were given by him in para No. 1 the plaint, was purchased by him from the defendant on 15 3-37. The defendant executed a registered sale-deed in his favour, and handed over the possession of that property to him. After some years, the defendant filed against the plaintiff a suit for possession of this land under sec. 9 of the Specific Relief Act and the same was decreed against the plaintiff on 23rd March 1955 It was asserted by the plaintiff that the disputed property really belonged to him and that a declaratory decree may therefore be passed in his favour. Later on, the plaintiff amended his plaint and also added a prayer for possession of the property. The defendant contested the suit ; whereupon several issues were struck by the trial court. One of the contentions raised by the defendant was to the effect that the suit was exclusively triable by a revenue court. This issue was decided by Munsif Kapasan in the defendant's favour on 14. 3. 56 and the file was therefore transferred to the Sub-Divisional Officer, Kapasan under sec. 206 of the Rajasthan Tenancy Act. The Sub-Divisional Officer, Kapasan has reported, after obtaining permission of the Collector that the suit was triable by a civil court and there being conflict of opinion about the jurisdiction of a revenue or civil court to entertain and decide this suit, he has referred the matter to this court. Neither party has cared to appear in this Court. It may also be mentioned here that neither the Munsif has referred to any provision of the law whereby he thought that the suit was exclusively triable by a revenue court, nor has the Sub-Divisional Officer, Kapasan, cared to refer to any provision of the law in his report. Learned Deputy Government Advocate has, however, supported the reference and I think rightly too. It appears from the order of the Munsif that he considered this suit as one exclusively triable by a revenue court, because the plaintiff had asked for a declaration of title in his favour and so he thought that this was triable only by a revenue court. It is true that in the Third Schedule of the Rajasthan Tenancy Act, 1955 suits for declaration of certain kinds have been mentioned as those exclusively triable by a revenue court in S. Nos. 5,6,7 and 8. But in the present case the plaintiff's case is not merely for declaration but essentially it is one for possession of the disputed property on the basis of title. This Court has not been referred to any provision in the Third Schedule which allows a revenue court to entertain suits for possession on the basis of title. It is true that in S. No. 23 there is a provision for suits for ejectment of trespassers and the period of limitation provided for such suits is 12 years and therefore it may be urged that the suit for possession may be brought in a revenue court under this Serial Number. But it may be pointed out that in such cases it must be alleged by the plaintiff that the defendant who is sought to be dispossessed was a trespasser. In the present case the defendant cannot be called a trespasser by any stretch of imagination, because on the plaintiff's own show ing, the defendant has been placed in possession of the property by a civil court The plaintiff is claiming his title and possession on the basis of a sale-deed which is said to have been executed in his favour by the defendant. Under the circumstances, this suit was certainly triable by the Munsif and he ought not to have transferred the case to the revenue court. The reference is therefore allowed. The order of the Munsif Kapasan dated 14. 3. 56 is set aside. The file be sent back to the Munsif through the Sub-Divisional Officer, Kapasan, with direction to restore the suit to its ordinal number and then proceed to decide it according to law. .;