1. - This is defendants' revision petition filed against Order dated 4.12.2004 passed by Civil Judge (Jr. Dn.) Mahuwa (Dausa) in civil suit No. 09/2004, while rejecting his application moved Order 7, Rule 11, Civil Procedure Code, holding that suit is cognizable by civil court.

2. Defendant-petitioner & plaintiff (respondent) both are real brothers. Plaintiff filed suit before Civil Judge (Jr. Dn.) Mahuwa questioning validity of "Wills" dated 27.11.1984 and 24.7.1986, whereby testator (father of parties) executed in favour of defendant. In suit, the Wills are sought to be declared as non-est and void, and thereby holding him entitled for half share in the property in dispute being one of his successors. The Wills pertained to agricultural land as also two dwelling houses, etc. In suit, permanent injunction against defendant has also been prayed not to alienate and/or transfer suit property pendente lis.

3. Defendant got his name mutated in revenue records pertaining to agricultural land on the basis of Will allegedly executed in favour of legatee-defendant by the testator (their father). Earlier plaintiff (respondent) filed suit before revenue court (Asstt. City Magistrate, Mahuwa) for cancellation of mutation made in favour of defendant in succession and further prayed that he be held entitled to half share in agricultural land being co-successor but at that point of time, no prayer was made regarding validity of the Wills dated 27.11.1984 and 27.7.1996 which are under challenge in the instant suit. In revenue suit, the defendant pointed out in his written statement that mutation has been made on the basis of Will executed in his favour by their father and the Revenue Court has no jurisdiction to examine validity of the Wills; and thus he raised an objection that the prayer which plaintiff has made for seeking half of his share in agricultural holdings, is triable only by civil court and very remedy sought before revenue court, is without jurisdiction and has no competence to entertain such dispute. However. without examining merits of claim of either parties, revenue suit was dismissed by the A.C.M. Mahuwa vide Order dated 24.8.1995 U/O 9, Rule 8, Civil Procedure Code.

4. Thereafter instant civil suit has been filed before civil court seeking declaration and permanent injunction, referred to (supra). At that stage, defendant again moved an application U/O 7, Rule 11, Civil Procedure Code, with the prayer that civil court has no jurisdiction to entertain such suit since primary relief claimed for is in respect of declaration of khatedari rights in agricultural holdings and as such, it is only revenue courts which have jurisdiction to examine the same. After taking note of material on record and objection raised by either side, the Trial Court rejected defendant's application with costs of Rs. 300/- vide order impugned dated 4.12.2004. Hence, this revision petition.

5. Shri S.K. Gupta, Counsel for petitioner has urged that primary relief claimed for by plaintiff is for declaration of Khatedari rights in agricultural holdings and seeking mutation whereof on half share of suit land, and other reliefs claimed are ancillary, in such circumstances, civil court has no jurisdiction to examine the same as it is barred by Section 207 of Rajasthan Tenancy Act, 1955 ('Tenancy Act') so also by Order 7, Rule 11(d), Civil Procedure Code, because the dispute falls within items 3 and 5 of Schedule III of Tenancy Act. In support of his contentions, Shri Gupta placed reliance upon decisions of this court in (1) Sukhpal Singh v. State of Rajasthan, 1998 RRD 478 , (2) Bhanwar Singh v. Mst. Rammo, 1998 WLC (Raj.) UC 392 and (3) Motilal v. Jagdish Pd., 2002 (UC) WLC (Raj.) 530).

6. Contrarily Shri J.P. Goyal, Counsel for the respondent contends that suit has been filed questioning validity of impugned Wills besides seeking declaration holding it be non est and void, and further claiming half share in the suit property including agricultural