Kishna and Another vs Gheesa and Others

Bapna, J.—This is a reference by the learned Munsif, Jhalrapatan, u/s 40, Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951.

Kishna and another filed a suit for redemption of certain agricultural land in the Court of Munsif, jhalrapatan, on 23-5-1950. The defendants denied the mortgagor''s title to the land as also the fact of the mortgage. On the enforcement of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, the learned Munsif transferred the suit to the Court of Assistant Collector by order dated 5-3-1951, The Assistant Collector dismissed the suit after trial on 6-11-1952, but on appeal the case was remanded for a fresh trial by the Collector.

At this stage the learned Assistant Collector was of opinion that certain issues relevant in the suit related to an enquiry about the proprietary title to land, and he, therefore, made an order remitting Issues Nos. 1, 4 and 5 for trial by the civil court u/s 36, Rajasthan Revenue Courts (Procedure and Jurisdiction) Act. The learned Munsif of Jhalrapatan, however, was of opinion that no question of proprietary title was involved in the suit, and that the suit was triable by a revenue court. He accordingly made this reference by an order dated 4-2-1954.

A suit for redemption is not among the suits enumerated in Group A or Group B of Schedule 1 to the Act, and the only reference regarding redemption is to be found in Group D, which relates to an application by a mortgagor for redemption of land and for re-delivery of possession, for which the proper court- fee is mentioned as annas -/8/-. This is item 5, and it relates to an application provided by Section 83. T. P. Act, and does not refer to a suit for redemption which right is enumerated in Section 60, T. P. Act.

That right can only be enforced by a suit, if the mortgagee is not prepared to redeem on demand or on application u/s 83, T. P. Act. It has been held by a single Judge of this Court in -- ''Shri Chand v. Daulat Ram'' 1952 RLW 495 that a suit for redemption is triable by a revenue court under item 5, Group D, Sen. 1. The distinction that Group D relates to an application and not to a suit does not seem to have been kept in view.

Again the two remedies -- one by application and the other by suit -- are two distinct rights provided separately in the Transfer of Property Act. As a suit to redeem has not been included in either Group A or Group B, that suit is not triable by a revenue court. The view taken in -- ''Shri Chand v. Daulat Ram (A)'', does not appear to be correct.

We, therefore, hold that the suit as framed is triable by a civil court. It is, therefore, not necessary to decide whether certain issues remitted by the Assistant Collector are, or are not, triable by a civil court, as the whole suit is triable by that court. The suit is, therefore, transferred for trial from the Court of Assistant Collector, Jhalawar, to the Court of Munsif, Jhalarapatan.