- (1.) THE property in respect of which the controversy in this case has arisen admittedly belonged to Binja who died some time in Samwat 1959, leaving behind his widow Smt. Amri. Smt. Ram Kanwari (defendant No. 3) is their daughter. THEre is a dispute whether she was first married to Kheta and defen-dant Manraj wa|s born of that union and then went in "nata" to Kheta's brother Hema, after his death,or whether she was married to Hema from the very beginning. But it is not in dispute that Manraj (defendant No. 1), Magna, Chuna & Hanuman are her four sons. Smt. Bhani (defendant No. 2) is the daughter of Manraj who had no other surviving issue, and plaintiff Rameshwar is the natural son of Magna.
(2.) PLAINTIFF Rameshwar raised the suit on November 30, 1956, with allegation that after the death of his wife and son, Hemraj took him in adoption on Phalgun Sud 2, S. 2001, executed a document (Ex. 1) to that effect and kept him as his son. He claimed that he lived jointly with Manraj as his adopted son and helped him in cultivation. According to the plaintiff, Binja had no son and so his widow Smt. Amri kept her daughter Ram Kanwari with her and after her death Ram Kanwari became the owner of her property. Manraj was the "karta" of his family but, according to the plaintiff, he colluded with the other defendants in order to deprive him of the property, and executed a registered gift deed (Ex. 20) of the property in favour of his daughter Smt. Bhani on October 19, 1956. He told the plaintiff that he did not want to keep him in adoption. The plaintiff therefore felt aggrieved because, according to the averment in the plaint, the property was the ancestral property of his grand-mother Ram Kanwari and her husband Hema and could not be gifted. As the gift deed cast a cloud on his right to the property, the plaintiff raised the suit for a declaration that he was the adopted son of Manraj defendant No. 1. He also prayed for the cancellation of the gift deed as it was void and inoperative against him. Separate written statements were filed by Manraj and Ram Kanwari. Manraj denied the adoption of the plaintiff and pleaded that he had made the gift in favour of his daughter Smt. Bhani because she used to serve him well and the property exclusively belonged to him and had nothing to do with the plaintiff. He pleaded that as Smt. Bhani (defendant No. 2) was put in possession of the property on the date of the registration of the gift-deed and was in possession ever since, the suit for a mere declaration was not maintainable. Further, he pleaded that he was the natural son of Kheta and had gone in adoption to his maternal grand-father Binja when he was a child and was therefore the owner in possession of Binja's property. In this connection he stated that after the death of his father Kheta, his mother Smt. Ram Kanwari went in "nata" to Hema and that Magna, Chuna and Hanuman were born thereafter. It was there-fore pleaded that there were two separate families one of defendant Manraj and the other of Magna, Chuna and Hanuman. This plea was taken for the purpose of showing that the plaintiff, as the son of Magna, had no claim over the property of Binja because Manraj had been given in adoption by his father Kheta to Binja and became the only owner of the suit property. In her written statement Smt. Ram Kanwari accepted some of the pleas of the plaintiff, including the plea that he was the adopted son of Manraj, but pleaded that the land was in her possession and that she had allowed the ''khatauni" to stand in the name of Manraj because he was the eldest son and she was not in a position to undertake the cultivation. She supported the plaintiff's contention that Manraj had no right to make a gift of the property. It may be stated that, at one stage, a joint written statement was filed by defendants Manraj and Smt. Bhani before the amendment of the plaint, but it is not necessary to refer to it because the learned counsel are in agreement that nothing turns on it. It may also be stated that Smt. Ram Kanwari died during the course of the trial on April 14, 1959. A number of issues were framed in the trial court and the learned trial Judge held that plaintiff Rameshwar was the adopted son of defendant Manraj. He however reached the conclusion that Manraj was the son of Hema and was riot taken in adoption by Binja whose property was inherited by his daughter Smt. Ram Kanwari. On these findings the learned Judge should have taken the view that the plaintiff did not require any interest in the property of Smt. Ram Kanwari by the adoption, but he went on to hold, under a misconception of the law, that it was ancestral coparcenary property in the hands of Manraj and that the plaintiff had an interest in it by adoption. On these findings, the learned Judge decreed the suit on July 11, 1960 declaring that the plaintiff was the adopted son of defendant Manraj, and cancelled the gift deed (Ex. 20 ). Defendants Manraj and Smt. Bhani filed an appeal against the judgment and decree of the trial court. The learned appellate Judge confirmed the finding that the plaintiff was the adopted son of Manraj, but held that Manraj, in his turn, was the adopted son of Binja. On this altered finding, the learned Judge had no difficulty in upholding the trial court's finding that the plaintiff had an interest in the suit property by virtue of his adoption, and he therefore maintained the decree of the trial court. Thus, as the defendants have been unsuccessful in both the courts below, they have preferred this second appeal. An objection has been raised by the learned counsel for the defendants appellants that the courts below committed a serious error of law in adjudging the claim in the suit because it related to agricultural lands and was exclusively triable by a revenue court. The learned counsel has urged that he is entitled to raise this objection even in second appeal as it relates to a plea of inherent lack of jurisdiction. According to him, S. 207 of the Rajasthnn Tenancy Act, 1955, was clearly attracted to the suit, which fell under sec. 88 (1) or sec. 91 of that Act and was therefore triable by a revenue court in accordance With the classification mentioned in the Third Schedule. The learned counsel has relied on sub-sec. (2) of sec. 207 for the purpose of making the submission that the jurisdiction of any other court was expressly barred by statute. He has also tried to take the benefit of the Explanation to the section and has urged that the question of jurisdiction, in a case like the present, should be decided on the basis of the real cause of action and not merely on the form of the relief claimed in the plaint. The learned counsel has thus argued that the plaintiff has, in fact and in substance, prayed for a declaration of his joint right of tenancy in respect of the suit lands and the case falls within the purview of sec. 83 (1 ). Alternatively, he has argued that the plaintiff has sued for a declaration of his rights conferred by the Rajasthan Tenancy Act and the case is, at any rate, covered by sec 81. For this submission he has placed reliance on Gulla vs. Dolia (l) and Shrichand vs. Daultram (2 ). He has also argued that the suit would not become triable by a civil court merely because the plaintiff has prayed for a declaration that he is the adopted son of defendant Manraj for such a declaration can be granted by a revenue court where the suit is otherwise triable by it. For this other submission the learned counsel has cited Chimna vs. Board of Revenue (3), and Jagannath vs. Balwant Singh (4 ). Further, the learned counsel has argued that a suit would not cease to be triable by a revenue court merely because the plaintiff moulds the relief in such a manner as to bring it within the competence of civil court, and for this he has made a reference to Mohammad Khalil Khan vs. Mahbub Ali Mian (5 ). The learned counsel has also invited my attention to the observation in the judgment of the trial court that the plaintiff had himself raised the argument that the disputed property was agricultural land and has argued that as the entire suit property consisted of agricultural lands, the suit was triable by a civil court. It is however an admitted fact that the defendants did not take the plea that the suit was not triable by a civil court, no issue was framed on the question of jurisdiction and the point was not even urged for the consideration of any of the two courts below Or in the memorandum of the first appeal. It has been raised for the first time in this Court. A perusal of the plaint shows that the plaintiff prayed for a declaration that he was the adopted son of Manraj. He also pleaded and prayed that as Manraj had made a gift of the ancestral property to his daughter for the purpose of depriving him of his right, it should be declared void and inoperative against him. It there-lore follows that even if it is assumed for the sake of argument that the dispute in the suit related exclusively to agricultural lands, the real and actual cause of action was the plaintiff's claim to be the adopted son of Manraj and to own the property with him in that capacity. Sec. 35 (1) of the Rajasthan Tenancy Act cannot therefore govern this case. So also, it cannot be said that the plaintiff sued for a declaration of all or any of his rights conferred by the Tenancy Act within the meaning of sec. 91. Secs. 88 and 91 have therefore no application to the present suit and Gulla vs. Doliya (l) and Shrichand vs. Daulat Ram (2) can be of no benefit to the appellants. The former was a suit for the declaration of tenancy rights in a well and for division of a share in the lands attached to the well. It was therefore rightly held to be a suit triable by a revenue court. In the latter case also, the suit was for a declaration that the plaintiffs were the owners of certain shares in agricultural land, and also for its redemption. It was held that the suit fell to be tried by a revenue court in accordance with the provisions of the Revenue Courts (Procedure and Jurisdiction) Act, 1951. These cases are therefore clearly distinguishable. It may be mentioned that it is admitted by the learned counsel for the appellants that apart from secs. 88 and 91 of the Rajasthan Tenancy Act, the suit can not be said to fall within the purview of any other provision of that Act. It is true that the question of adoption can be decided by a revenue court when it is necessary for the purpose of deciding a suit based on a cause of auction for which a suit in a revenue court is the only appropriate remedy. Thus in the case of Chimna vs. The Board of Revenue, Rajasthan (3) the suit was for a right which could be claimed only in a revenue court, while in Jagannath vs. Balwant Singh (4) the only dispute was regarding the nature of the tenancy, and adoption was an incidental issue. It cannot therefore avail the learned counsel for the appellants to argue merely that there are decisions to the effect that a question of adoption can also be validly decided by a revenue court. That may well be so, but it cannot by itself justify the trial of a suit like the present in such a court. There is, however, another important fact which may be said to clinch any possible controversy on the question of jurisdiction. The plaintiff has made the gift a cause of action for the suit and has prayed for its cancellation. There is no dispute that such a gift has been made by defendant Manraj in favour of his daughter defendant Smt. Bhani. The gift-deed (Ex. 20) shows, ex-facie, that Manraj made a gift of his agricultural lands as well as his residential houses in the "abadi" of village Kulhadi, and it cannot be disputed that "land" as defined in sec. 5 (24) of the Rajasthan Tenancy Act excludes "abadi land", so that any dispute regarding "abadi land" would not fall within the purview of that Act. At any rate, there is nothing on the record to show that the lands occupied by the houses or enclosures referred to in the gift-deed were situated on a "holding" as defined in cl. (17) of sec. 5 of the Rajasthan Tenancy Act. In other words, there is nothing to show that they stand on agricultural lands within the meaning of the definition mentioned in cl. (24), and it will not be fair and reasonable to presume that the residential houses or enclosures included in the impugned gift-deed are agricultural lands so as to require adjudication of any possible dispute regarding their ownership or possession by a revenue court. For this uncertainty regarding the nature of these lands, the defendants are themselves to blame, for they did not take a plea in their written statements that the suit was triable by a revenue court as the entire property which was the subject-matter of the gift was agricultural lands, and the matter could not therefore be put to trial.
(3.) IN these facts and circumstances, it will be fair and reasonable to take the view, on a bare perusal of gift-deed Ex. 22, that both agricultural and non-agricultural properties were gifted by Manraj to his daughter Smt. Bhani, and it is not disputed that a suit relating to such composite properties would be triable by a civil court. It has been held by this court in Rattu vs. Mula (6) that this is so, and I am in respectful agreement with that view. As has been observed by their Lordships of the Supreme Court in Dhulabhai vs. State of MP. (7), the exclusion of jurisdiction of the civil court is not readily to be inferred, and there is, for reasons already stated, all the more reason for me not to draw such an inference. It has also to be remembered that in this case the relief claimed by the plaintiff that he may be declared to be the adopted son of defendant Manraj is not an ancillary matter for the decision of any main relief. It was of the essence of the suit, for the only other relief which plaintiff asked was based on it and was to follow as a necessary consequence once he was held to be Manraj's adopted son. I have therefore no hesitation in rejecting the belated effort on the part of the learned counsel for the defendant-appellants to make the submission that they should be allowed to raise the bar of sec. 207 of the Rajasthan Tenancy Act against the maintainability of the present suit in the civil court. It is true that the trial court made the observation that the plaintiff raised the argument that the disputed property was agricultural land, and it has been argued that he should be tied down to his admission for the purpose of holding that the entire property was agricultural land and the suit was triable by a revenue court. I do not, however, feel inclined to take any such view. A perusal of the entire judgment shows that the so called admission was made when the trial court was considering the question whether it was necessary for the plaintiff to make a prayer for possession of the suit property. This was the subject-matter of a separate issue (No. 5 ). It cannot therefore be said that in the context in which, the observation was made in the judgment of the trial court, it should be interpreted as an unequivocal admission that the whole of the suit property was agricultural land so as to make the suit triable by a revenue court. If the defendants thought that the entire property was agricultural land, there was nothing to prevent them from pleading that this was so and raising the question of jurisdiction at the appropriate stage. Having put aside the argument regarding jurisdiction, I shall proceed to consider the other points in controversy in this appeal, but before doing so I may as well state here that Mr. Rastogi has been frank enough to concede that he is not in a position to challenge the concurrent finding of fact of the two courts below that the plaintiff is the adopted son of Manraj. I shall therefore proceed to deal with the other points on the basis that this is so. It has been argued that the finding of the learned Judge of the lower appellate court that defendant Manraj was the adopted son of Binja has been vitiated by a serious error of law, for while that court took the view that Manraj was bound by his admission in the written statement that he was the adopted son of Binja, the learned Judge did not care to bind the plaintiff to his admission that Binja had no son at all and that after the death of his widow Smt. Amri his property devolved on his daughter Smt. Ram Kanwari. The learned counsel has taken exception to the following observation in the judgment of the lower appellate court - "it is definitely alleged by Manraj defendant in his written statement that he was adopted by Beenja and had gone to the latter's family. . . . . . . . . . . . . . . . . . So there remains no doubt that Manraj was the son of Beenja and now he cannot turn round and say that he was not the son of Beenja and inherited Beenja's property only as his maternal grand-son. " According to Mr, Rastogi, the learned Judge of the lower appellate court lost sight of the statement in the plaint that Beenja had no son, and it has been argued that a serious error of law has been committed in tying only one of the parties to his admission while ignoring the admission of the other party. Developing his argument, the learned counsel has made the submission that when, according to the plaint, Binja died without a male heir and after the death of his widow Smt. Amri their daughter Smt Ram Kanwari became the owner of the property, that property ceased to be the property of the joint Hindu family and did not have the characteristics of ancestral coparcenary property which could be inherited by the coparceners. In other words, it has been argued that any property inherited by Manraj from his maternal grand-mother and mother could not be said to be ancestral property in which his adopted son plaintiff Rameshwar could acquire any interest by adoption so as to assail the gift made by Manraj in favour of his daughter Smt. Bhani. In support of this argument, the learned counsel has placed reliance on Muhammad Husain Khan vs. Babu Kishore Nandan Sahai (8 ). I have gone through the pleadings of the parties and it cannot be denied that there is force in this argument of Mr. Rastogi. The plaintiff had no doubt taken the plea in the plaint that after the death of Binja and Smt. Amri, Smt. Ram Kanwari became the owner of Smt. Amri's property. Then it was also clearly stated that Binja had no son and that was why Ram Kanwari became the owner of his property. It is also correct that the defendant clearly pleaded in the written statement that Manraj was the son of Kheta and was taken in adoption by Binja. The learned Judge of the lower appellate court was therefore clearly in error in overlooking the admission in the plaint while binding the defendant to what was stated in the written statement. The impugned finding has therefore been vitiated by a substantial error of law so that it has become necessary for me to re-examine it on the merits in second appeal. Before doing so, it may be stated, however, that both parties are anxious to get out of the admissions in their respective pleadings because while the plaintiff now realises that he cannot lay claim to the suit property if it is held to be the property of Smt. Amri and thereafter of Smt. Ram Kanwari or if it is held to have devolved on Manraj through his maternal grand-father Binja, defendant Manraj also now realises that if he is held to be the adopted son of Binja, the plaintiff, as his adopted son, will be entitled to claim that the gift-deed in favour of Smt. Bhani should be cancelled because of his interest in the ancestral coparcenary property by adoption. This is why both the parties are anxious to get rid of the admissions unwittingly made by them in their pleadings. But they are clearly unjustified in claiming that this should be allowed to be done at the cost of the other. ;