Rajasthan High Court - Jaipur
Badrilal And Anr. vs Moda And Ors. on 1 January, 1979
Equivalent citations: AIR1979RAJ142, 1979()WLN570
JUDGMENT S.K. Mal Lodha, J.
1. This revision has been placed before us on a reference made by a learned single Judge as it raises an important question as to the jurisdiction of a civil court to try the suit for perpetual injunction in respect of right of drawing water from the well bearing a separate khasra number and further to take water in a drain on the basis of easementary right.
2. The plaintiff-non-petitioners Nos. 1 and 2 instituted a suit for permanent prohibitory injunction and damages against the petitioners (defendants Nos. 1 and 2) in the court of Munsif, Mandelgarh on Sept. 12, 1969. It was alleged by the plaintiffs that a well having separate khasra No. 168 is situate in village Khadipur, Tahsil Mandalgarh; that in that well, the plaintiff, defendant No. 4 and defendant No. 1 have 1/6, 1/2 and 1/3 share respectively; that prior to February 15, 1949, defendant No. 4 had 1/2 share and defendant No. 1 had 1/2 share and both of them used to irrigate their fields from the well every three days turn by turn; that on February 15, 1940, defendant No. 1 sold l/3rd of his 1/2 share to the plaintiffs' father Narain on a sale consideration of Rs. 50/- and thus the plaintiffs became entitled to 1/6 share in the khatedari rights of the well inclusive of the right of irrigation and taking water in the existing drain through the land of defendant No. 1. Their case further is that since Feb. 15, 1940, the plaintiffs' father Narain during his lifetime and after his death, the plaintiffs have been irrigating about two bighas of their agricultural fields by taking water in the drain through the land of defendant No. 1. It was also averred that they have been using the drain for irrigating their land in their own right from the well in question without any obstruction and interruption and this they did until the Deepawali preceding the suit. The case of the plaintiffs further is that near about October 15, 1968, when the plaintiffs, for the purpose of sowing wheat, started drawing water from the well, the defendants started quarrelling and prevented them from drawing 1/6 water from the well according to their share and further obstructed in taking the same in the drain passing through the land of defendant No, 1 without any right and, therefore, the plaintiffs could not sow wheat in 2 bighas of their land. The plaintiffs put forward a claim for Rs. 400/- on account of damages as the defendants, without any right, improperly and illegally prevented them from drawing water from the well and taking it in the drain. It was, therefore, prayed that the defendants be restrained, by means of permanent prohibitory injunction from interfering with the plaintiffs' right to draw l/6th water from the well according to their share and further from obstructing, interfering and disturbing with the right of the plaintiffs to take water in the drain on defendant No. 1's land for the purpose of irrigating their land. The defendants Nos. 3 and 4 filed a joint written-statement on August 5, 1971, It was, inter alia, pleaded by them that the suit is triable by a revenue court. On Feb. 1, 1972, an application was moved on behalf of defendants Nos. 3 and 4 that a legal objection has been raised by them to the effect that the suit is not triable by a civil court and it is cognisable by a revenue court and, therefore, arguments may be heard on this point first. On this application, arguments were heard and the learned Munsif, by his order dated April 5, 1972, dismissed the application dated February 1, 1972 filed by defendants Nos. 3 and 4 and held that the suit is triable by a civil court.
3. Aggrieved by this order dated April 5, 1972, defendants Nos. 3 and 4 have preferred this revisional application to this court. When the matter came up for hearing before Jagat Narayan, C. J., he was of the opinion that this revision application raises an important question as to whether a well situated in a holding and used for agricultural purposes is land within the meaning of Section 5 (24) of the Rajasthan Tenancy Act (No. III of 1955) (the Act hereafter) and a suit for injunction in respect of right of taking water from the well by a co-sharer only lies in the revenue court. Before him Rampal v. Rampal, 1968 Raj LW (Rev Sup) 93 (FB) (Full Bench decision of the Board of Revenue, Rajasthan) was cited. He, therefore, ordered that this case should be placed before a Full Bench for decision. This is how this revision is before us.
4. We have heard Mr. D. S. Shishodia for the petitioners and Mr. J. M. Bhandari for the non-petitioners and have read the plaint with due care and attention.
5. The plaintiffs' case is based on two counts: (i) that they are co-sharers of the well in question having 1/6 share in it and (ii) that they have acquired ease-mentary right of taking water in the drain through the land of defendant No. 1 for the purpose of irrigating their land. On these two distinct and independent grounds which are contained in paras 3 and 4 of the plaint, they have claimed two principal reliefs, namely, (1) permanent prohibitory injunction restraining the defendants not to prevent them from drawing 1/6 water from the well according to their share and (2) further perpetual injunction restraining them from obstructing and interfering with their right to take water in the drain through the land of defendant No. 1 We may unhesitatingly state at once that these reliefs are distinct and separate and out of these two, one cannot be called the main relief and the other as consequential or ancillary.
6. It has been stated by the plaintiffs in para 7 of the plaint that cause of action accrued to them near about October 25, 1968 (in para 5 of the plaint the date mentioned is October 15, 1968) and that it is still continuing.
7. For the purpose of seeing whether the suit is exclusively triable by a revenue court and the civil court has no jurisdiction to try the same, averments in the plaint are carefully to be looked into. All the allegations made in the plaint should be taken into consideration and not the reliefs alone claimed in the plaint for the purpose of determining the question of jurisdiction. The substance of the plaint provides a good guide to find out the true nature of the object of the suit.
8. In Ram Awalamb v. Jata Shankar, AIR 1969 All 526 (FB) it was observed that it is the cause of action which determines the jurisdiction of court and that the term "cause of action" though nowhere defined, means every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment. It was further held in that case that in each and every case the cause of action of the suit shall have to be strictly scrutinised to determine whether the suit is solely cognizable by a revenue court or is impliedly cognizable only by a revenue court or is cognizable by a civil court. The main point of consideration in all cases where on a definite cause of action two or more reliefs of be claimed is which of reliefs is the main relief and which relief or other reliefs are ancillary reliefs. Once the suit is maintainable for the main relief in the civil court then there is no bar for the civil court to grant all possible reliefs flowing from the same cause of action. The determination of the question as to which out of the several reliefs arising from the same cause of action is the mom relief will depend on the facts and circumstances of each case. The following principles laid down in this connection by the Full Bench of this Allahabad High Court are worthy of notice:
(1) Where, on the basis of a cause of action the main reilef is cognizable by a revenue court the suit would be cognizable by the revenue court only. The fact that the ancillary reliefs claimed are cognizable by civil court would be immaterial for determining the proper forum for the suit;
(2) Where, on the basis of a cause of action the main relief is cognisable by the civil court, the suit would be cognizable by the civil court only and the ancillary reliefs, which could be granted by the revenue court may also be granted by the civil court.
9. Sachar, J. in Shyamkumar v. Budhsingh 1977 Raj LW 131: (AIR 1977 Raj 238) observed (at p. 239 of AIR):
"It is well settled that the question of Jurisdiction namely, whether a suit is exclusively triable by a revenue court or a civil court can take cognizance of it, has to be decided on the allegations made in the plaint. It is also further settled that it is the substance of the plaint and the true nature of the suit that is to be seen to determine the question of jurisdiction. If in substance the relief claimed is one which the revenue courts alone are entitled to give the jurisdiction of the civil courts will be ousted even though it may require the revenue court to incidentally determine some ancillary facts".
One of us (Dwarka Prasad, J.) in Ratanlal v. Gram Panchayat Agolai, 1977 Raj LW 143: (AIR 1977 NOC 308 (Raj)), while dealing with the question of jurisdiction, observed that the question of jurisdiction has to be decided on the basis of averments made in the plaint, and that not only the relief claimed in the plaint but all the allegations made therein should be taken into consideration for the purpose of deciding the question as to whether the suit is exclusively triable by the revenue court or not. It, was further observed:
"The court must be guided by the substance of the plaint and not merely by it's form. Therefore, in order to arrive at a correct conclusion on the question of jurisdiction, the substance of the plaint must be taken into consideration to find out the true nature or the object of the suit".
From a reading of the plaint as a whole, it is abundantly clear that the plaintiffs have prayed for issuance of permanent prohibitory Injunction against the dependents on establishing that they have right to draw l/6th water from the well of their share. They have further prayed that the defendants should not obstruct, and interfere with their right to take water in the drain through the land of defendant No. 1 as they have acquired easementary right.
10. As stated above, one of the principal reliefs claimed by the plaintiffs is issuance of a permanent prohibitory injunction restraining the defendants not to prevent them from drawing 1/6 water from the well. Section 92A of the Act provides for filing a suit for injunction and it lays down that except as otherwise specifically provided elsewhere in the Act, any person may sue, in respect of all or any of his rights conferred by the Act, for an injunction in accordance with and subject to the provisions of Chapter X of the Specific Relief Act, 1877. The Specific Relief Act, 1963, is in force at present. C. M. Lodha, J., as he then was, has considered the provisions of Sections 5 (17), 5 (19), 5 (24), 92A, 188 and 251 of the Act in Ramchandra v. Lakha (1972 RRD 128). In that case, the suit was filed in the court of Civil Judge Tonk praying that the defendants may be restrained from drawing water from the well in question to irrigate their land and it was opposed by the defendants who claimed right of easement in this respect. The learned Judge held :--
"......well constructed for agricultural purposes is included in the term 'land' as defined in the Act, and also within the definition of the term 'holding' as defined in the Act".
In that case, the well in question had separate khasra No. and its area was also mentioned and the plaintiff claimed himself to be khatedar tenant. After considering the relevant cases, the learned Judge reached the conclusion that the suit did not lie in a civil court but was entertainable by a revenue court, and, thereafter, he directed that the plaint be returned to the plaintiff for presentation before the revenue court.
11. In Rampal's case (1968 Raj LW (Rev. Supp)) 93) (FB), the following question was referred to the Larger Bench by the Division Bench of the Board of Revenue:--
"Whether a well if it has been given a separate khasra number and is distinct from a tenant's holding would be covered within the definition of a 'holding' under Section 5 (17) of the Rajasthan Tenancy Act, 1955, as in this case, and, therefore, whether a suit for declaration and permanent injunction in respect of rights in it would be triable in the Revenue Court?"
By majority (Shri Gajendrasingh Member, contra), the answer to the above-mentioned question was given in the following terms:
"A well if it has been given a separate khasra number or is distinct from a tenant's holding, would be covered within the definition of a 'holding' under Section 5 (17) of the Rajasthan Tenancy Act, 1955, and, therefore, a suit for declaration and permanent injunction in respect of rights which arise out of matters covered by the Rajasthan Tenancy Act mentioned in Schedule Third would be triable in a Revenue Court. A suit for declaration which is based purely on an easement right would be triable by a civil court".
In Balwantsingh v. Jagannath, 1978 RRD 33 the provisions of Sections 5 (17), 5 (19), 5 (24), 92A and 207 again came up for consideration before the Board of Revenue. In that case the plaintiff claimed that his lands particulars of which were given in the plaint, were being irrigated from well No. 165/45 and irrigation charges at the rate of one rupee per bigha were being paid to the defendants, that this had been the practice for the past 30 years or so but on October 5, 1966, the defendants refused to allow him to get the irrigation facilities and hence the suit for injunction was filed. On the basis of the decision of this Court in Ramchandra's case and the Full Bench decision of the Board of Revenue in Rampal's case 1968 Raj LW (Rev Supp) 93 (FB) it was held that the plaintiff wanted water on the basis of the revenue record and not because of any easement, and that the revenue court must maintain the sanctity of revenue record unless they are altered in a lawful manner. The suit, was, therefore, held to be triable by a revenue court.
12. We respectfully agree with the view taken in Ramchandra's case. We are further of the opinion that the view taken in Rampal's case and Balwant-singh's case by the Board of Revenue is correct. There is, therefore, no doubt that so far as first principal relief, namely, right of drawing l/6th water from the well in dispute is concerned, it can be granted by a revenue court.
13. So far as the second relief, namely, issuance of perpetual prohibitory injunction restraining the defendants from obstructing, disturbing and interfering with the plaintiff's right to take water in the drain through the land of defendant No. 1 is concerned, it is based on a right of easement as is clear from the averments made in para 4 of the plaint. Section 251 of the Act reads as under:
"251. Rights of way and other private easements:
(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".
This section, only provides a summary procedure for determination of a private right of way and other easementary rights. This section would operate only when a private way is disturbed or obstructed.
14. It was held in Baksha v. Gokaldan (1957 Raj LW 188) that remedy referred to in Section 251, is a summary one, and does not debar a suit in a competent civil court. Learned Judge observed:
"sub-section (2) of Section 251, therefore, overrides Section 207 and if an unsuccessful party can ultimately go to a civil court, there is no reason why the plaintiffs should not also in the first instance go to a civil court".
Chhangani, J., as he than was, also examined the provisions of Section 251 of the Act in Nenu Ram v. Smt. Jaswanti & Co. (1960 Raj LW 376).
15. We are tempted to quote the following observations of the learned Judge:
"The provisions of the Rajasthan Tenancy Act, generally speaking, purport to create suits for rights to be conferred by that Act as exclusively triable by a revenue court, but do not seek to embrace suits for the enforcement of rights arising under other laws, such as the Pre-emption Act or the Easements Act. Sub-section (2) further clarifies that position. According to this subsection, an order of Tehsilar under Sub-section (1) shall not debar a person from establishing such rights and easements as he may claim by a regular suit in a competent civil court. The use of the expression "No......shall debar......" is suggestive of the fact that a right to file a suit in the civil court, in the first instance, stands automatically recognised and a previous application to the Tehsildar and obtaining his summary decision is not a condition precedent to the filing of a civil suit.
The relief on the basis of a right of easement can only be granted by a civil court and not by a revenue court. Section 207 of the Act lays down that only those suits and applications of the nature specified in the Third Schedule shall be heard and determined by a revenue court. Therefore, for the purpose of granting the relief on the basis of an easementary right the proper forum is that of a civil court.
16. It is, therefore, clear that out of the two main reliefs referred to above, one can be granted by a revenue court and the other can be granted by a civil court. In view of the two main reliefs asked for by the plaintiffs, in our opinion, it is a suit dealing with composite matters. Section 242 of the Act makes provisions for dealing with such composite matters. It runs as under:
"Section 242. Procedure when plea of tenancy rights raised in civil courts: (1) If, in any suit relating to agricultural land instituted in a civil court, any question regarding tenancy right arises and such question has not previously been determined by a revenue court of competent jurisdiction, the civil court shall frame an issue on the plea of tenancy and submit the record to the appropriate revenue court for the decision of that issue only.
Explanation :-- A plea of tenancy which is clearly untenable and intended solely to oust the jurisdiction of the civil Court shall not be deemed to raise a plea of tenancy.
(2) The Revenue Court, after reframing the issue, if necessary, shall decide such issue only, and return the record together with the finding thereon, to the Civil Court which submitted it.
(3) The Civil Court shall then proceed to decide the suit, accepting the finding of the Revenue Court on the issue referred to it.
(4) The finding of the Revenue Court on the issue referred to it shall, for the purposes of appeal, be deemed to be a part of the finding of the Civil Court." In this case, the plaintiffs have joined more than one causes of action in the suit, namely, (i) pertaining to draw l/6th water from the well and (ii) relating to take water in the existing drain through the land of defendant No. 1 on the basis of right of easement. We have already held that one cause of action is such that it is not triable by a Revenue Court. It is, therefore, clear that that portion of claim made in the plaint is triable by a Civil Court and the other portion is triable by a Revenue Court. In these circumstances, we are of the opinion that the suit could rightly be taken cognizance of by a Civil Court and what would be necessary is to refer the issue regarding the claim to draw l/6th water from the well which relates to the tenancy rights, to the Revenue Court, if at all it is found necessary to do so.
17. Kansingh, J., as he then was, considered the provisions of Section 242 in Hardayal v. Jaggasingh, AIR 1969 Raj 89. After explaining the decision reported in Gulla v. Doliya, 1953 Raj LW 332, the learned Judge observed (at p. 91 of AIR):
"It is true that a Civil Court will not be competent to go into the question whether the plaintiff had or had not acquired the Khatedari rights claimed by him in the land or to grant him any relief by way of declaration in respect of such rights, yet on that basis alone it cannot be postulated that the suit shall not be triable by a Civil Court."
In Hardayal's case, the decision of this Court reported in Hamirsingh v. Peethsingh, ILR (1951) 1 Raj 81 was also noticed and it was pointed out that in that case the attention was not invited to the provisions of Section 39 of 1950 Act, which was analogous to Section 242 of the Act. We respectfully agree with the view taken in Hardayal's case and hold that the suit, though inter alia pertains to a right to draw l/6th water from the well bearing Khasra No. 168 which is included in the term land' and 'holding' defined in the Act, yet as relief on the basis of the right of easement has also been claimed, which, as stated above, is also one of the main reliefs and not a consequential or ancillary one based on a separate and independent cause of action, is triable by a Civil Court. The question regarding right to draw l/6th water from the well, is one relating to the tenancy right and if it has not previously been determined by a Revenue Court of competent jurisdiction, the Civil Court will have to frame an issue on this plea and submit the record to the appropriate Revenue Court for the decision of that issue only, in other words, it will be necessary to refer only the issue relating to claim about the right to draw l/6th water from the well to the Revenue Court, otherwise the suit remains with the Civil Court. Section 242 of the Act, in our opinion, covers the situation arising in the suit.
18. We are, therefore, firmly of the opinion that the suit has been rightly instituted in the Civil Court and is triable by it. It will be for the Civil Court to see at the appropriate stage, if necessary, whether the question regarding the claim of the plaintiff in respect of drawing l/6th water from the well should be referred to the Revenue Court.
19. The learned Munsif was, therefore, right in holding that the suit is triable by a Civil Court.
20. In these circumstances, the order under revision calls for no interference and the revision, which has been referred to us, must be dismissed.
21. The revision is, accordingly, dismissed. In the circumstances of the case, we, however, direct that the parties shall bear their own costs of this revision.