MODI, J.:—This case has been referred to us by a learned single Judge by his order dated the 13th May, 1960.

2. The facts leading up to this reference are briefly these. The appellant in this Court was the plaintiff in the trial court, namely, the court of the Assistant Collector, Udai-pur. His case was that he was a Bapidar of Khasra No. 433 measuring 2 Bighas and 1 Biswa, situate opposite the Lalbagh gate at Nathdwara, by virtue of a writing dated the 10th October, 1951. Adjacent to the above-mentioned land, the defendants held the field bearing survey No. 432. The plaintiffs grievance was that in erecting a fencing around survey No. 432, the defendants had made an encroachment on a portion of the plaintiffs land covered by survey No. 433 to the extent of four Biswas. The plaintiff called upon the defendants to restore possession of this four Biswas of land encroached upon by them but without any avail. Consequently on the 15th September, 1953, the plaintiff instituted the present suit in the court of the Assistant Collector, Udaipur, for possession of the four Biswas of land belonging to survey No. 433 over which the defendants had taken unlawful possession.

3. Of the defendants, defendant No. 2 admitted the claim of the plaintiff but defendant No. I resisted the suit, his case being that the plaintiff was not a Bapidar of survey No. 433 and that the former had made no encroachment whatsoever upon the land covered by the last-mentioned survey number in any manner whatsoever and he further pleaded that it the court came to the conclusion that he was in possession of the disputed land, then he had perfected his right with respect to it by adverse possession, and consequently he prayed for the dismissal of the suit.

4. The trial court struck six issues in the case of which the first was in these terms:—

"Whether the plaintiff is the owner of the land bearing survey No.433?"

This issue was considered as involving a question of proprietary title and therefore the revenue court referred it for disposal to the civil court, which was the court of Munsiff Nathdwara. The civil court decided this issue in favour of the plaintiff and returned the record to the revenue court. Thereafter accepting the finding of the civil court on the aforesaid issue, the revenue court after a trial of the remaining issues, decided all of them in favour of the plaintiff and decreed the suit.

5. The defendants went in appeal to the learned District Judge, Udaipur. The learned District Judge held that as the plaintiff was only a Bapidar, no question of proprietary right so far as he was concerned, arose in the suit. Consequently the learned Judge allowed the appeal merely setting aside the finding of the civil court on issue No. 1 (as he says) and sent the case back to the Assistant Collector Udaipur for disposal in accordance with law. Aggrieved by this judgment, the plaintiff has come up in appeal to this Court, which was originally placed for hearing before a learned single Judge who thought fit to make this reference to a larger bench. This is how the case has been placed before us for final disposal.

6. The first question which in our opinion arises for consideration in this case is whether the finding of the learned District Judge that the plaintiffs case did not involve any question of proprietary right within the meaning of sec. 38 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 (Act No. I of 1951) hereinafter referred to as the Act of 1951) or for that matter within the meaning of sec. 239 of the Rajasthan Tenancy Act, 1955 (Act No. 3 of 1955) (hereinafter referred to as the Act of 1955) is correct. This question engaged the attention of a bench of this Court in Bherulal and another Vs. Todu and others (Civil regular first appeal No. 9 of 1953, decided on the 21st November, 1956.) The facts of that case are more or less analogous to those of the present one inasmuch as the plaintiff there was also a Bapidar of certain land in the f

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