1 S.B. CIVIL FIRST APPEAL NO.411/07 Jannat Firdosh and anr vs. Alfu & ors. Date of Order: 5.9.2007 Hon'ble Mr. Prakash Tatia, J. Mr.A.K. Rajvanshy for the appellant. Ms. Hem Lata Choudhary for Mr. Chaitanya Gehlot for the respondent. The trial court vide order dated 9.8.2007 allowed the application filed by the respondent-defendants filed under Order 7 Rule 11,C.P.C. on the ground that the suit is not triable by the civil court and was triable by the revenue court only and dismissed the suit of the plaintiff. The learned counsel for the appellant submitted that the plaintiff though pleaded in his plaint itself that the land in question is agricultural land but the defendants encroached upon the plaintiff's agricultural land which is plaintiff's khatedari land and constructed houses and, therefore, the plaintiff is entitled to decree for possession. The learned counsel for the appellant further submitted that in nearby area, houses have been constructed by several persons. In view of the above reason, the land though recorded as agricultural land in revenue record and 2 admitted by the plaintiff to be agricultural land but in fact is surrounded by the Abadi area and the land has been put to Abadi use, therefore, the civil court can entertain the suit and can pass the decree of eviction of the trespasser. The learned counsel for the appellant relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Abdulla Bin Ali and others v. Galappa and others ( AIR 1985 SC 577) and the judgment of this Court delivered in the case of Baksha v. Gokaldan (1957 RLW 188). The facts pleaded by the plaintiff decides the forum where a suit can be filed. The Hon'ble Supreme Court also in the same judgment relied upon by the learned counsel for the appellant in the case of Abdulla Bin Ali (supra) clearly held that the allegations made in the plaint decide the forum. The jurisdiction does not depend upon the defence taken by the defendants in the written statement. Here in this case, admittedly the land in question is agricultural land and recorded as agricultural land and it is not the case of the plaintiff-appellant that the land was ever got converted into Abadi land in accordance with the law and by order of competent authority. The suit in relation to any right of Khatedari tenant for the relief even of possession from the trespasser lies in revenue court as per third Schedule of the 3 Rajasthan Tenancy Act. Any suit for declaration of the plaintiff's right as tenant lies under Section 88 and for eviction of the trespasser, the suit lies under Section 183. Section 183 of the Rajasthan Tenancy Act is specific provision for seeking decree for eviction of the trespasser. In view of the above specific provision of law made under the Rajasthan Tenancy Act read with Section 207, the civil court has no jurisdiction to hear and decide the suit of the nature specified in third Scheduled of the Rajasthan Tenancy Act. The facts of the case of Abdulla Bin Ali (supra) were entirely different. In that matter, initially the proceedings were taken in the civil courts where there was objection of the defendants that the suit is not triable by the revenue court and the revenue court reached to the conclusion that the suit is triable by the civil court. When the suit is instituted in the civil court, the defendants raised objection that suit is not triable by the civil court. In that situation, when the plaintiff's suit was dismissed, the Hon'ble Apex Court held that in that situation when the defendants themselves objected jurisdiction of the revenue court, could not have raised objection against the jurisdiction of the civil court. The Hon'ble Supreme Court, while considering the matter under the provisions 4 of law applicable to the area which may be of Karnataka State, has observed “Now a suit against the trespasser would lie only in the civil Court and not in the revenue Court.” The law in the State of Rajasthan, is entirely different and sub-section (1) of Section 207 of the Rajasthan Tenancy Act, which is as under:- “207. suits and applications cognizable by revenue court only- (1) All suits and applications of the nature specified in the Third Schedule shall be heard and determined by a revenue court. From a bare reading of Section 207(1) of the Rajasthan Tenancy Act shows that there is bar about the jurisdiction of the civil court and this is statutory bar. This jurisdiction cannot be conferred by the parties in the court which has no jurisdiction. The nature of the land can be changed only by obtaining appropriate order from the competent authority for conversion of the land from one category to another and for that purpose also, in the State of Rajasthan, there are other sets of rules framed under the Rajasthan Land Revenue Act also prescribes the procedure of the revenue courts also. Therefore, the judgment relied upon by the learned counsel for the appellant delivered in the case of Abdulla Bin Ali (supra) has no application to the facts of the case. 5 Another judgment relied upon by the learned counsel for the appellant delivered in the case of Baksha(supra) is altogether delivered in entirely different subject matter. Section 251 of the Rajasthan Tenancy Act is a summary remedy available to the Khatedar tenant of the land and this very section specifically provides that if any order is passed under Section 251 of the Rajasthan Tenancy Act, the parties may approach to the Civil court. In view of the above reason also, the said judgment has also no application to the facts of the present case. In view of the above discussion, the appeal of the appellant is dismissed. However, it is made clear that since the suit of the plaintiff has been dismissed on the ground that the civil court has no jurisdiction, therefore, the appellant will be free to file regular revenue suit for eviction of the defendants but strictly in accordance with the law and the defendants shall have all rights to defend the suit except on the question of jurisdiction of the revenue court. ( PRAKASH TATIA ),J. mlt.