LODHA, J.—The first and for a most point urged by the plaintiff appellant in this case is that Civil Court had no jurisdiction to entertain the suit. The question arises in the following circumstances.—

There is a well called Rambaba Wali Kothi bearing Khasra No. 376 having an area of 5 Biswas situated in village Bhartiya Khund, Tehsil Niwai, District Tonk, of which the plaintiff claims to be a Khatedar tenant. It was alleged by him that he and the defendants are related to each other, and, therefore, during the last settlement he had permitted the defendants to take water from the above wall for 4 days in a month in order to irrigate their land, but there was a definite understanding between the parties that the plaintiff would be at liberty to stop the defendants from drawing water from the well any time he liked. The plaintiff goes on to state that in accordance with this understanding the plaintiff stopped the defendants about 7 years before the filing of the suit and the defendants did not offer any resis-tence or opposition. It is further alleged that some time in the beginning of February 1959 the defendants forcibly started taking water from the well and the plaintiff offered resistance, which gave rise to quarrels between the parties He. therefore, filled the present suit in the Court of Civil Judge, Tonk on 18-10-1959 praying that the defendants may be restrained from drawing water from the well in question to irregate their land. The suit was opposed by the defendants, who claimed a right of easement in this respect. The learned Civil Judge, Tonk recorded the evidence produced by the parties, and thereafter by his judgment dated 1810-1962 dismissed the plaintiffs suit.

2. Aggrieved by the judgment and decree by the trial court the plaintiff filed appeal in the Court of District Judge, Jaipur City who affirmed the judgment and decree by the trial court and dismissed the appeal. Hence this second appeal by the plaintiff.

3. One of the points argued on behalf of the appellant in the lower appellate court was that the suit was exclusively triable by a revenue court and it has been wrongly instituted in a civil court. The learned District Judge, however, repelled this contention and following the view taken in Shri Hiralal vs. Shri Narain (1) held that the suit had been rightly instituted in Civil Court. On merits he concerned in the findings of the trial court and held that the plaintiff had failed to prove his case.

4. Learned counsel for the appellant has urged that the suit was exclusively triable by revenue court only and consequently did not lie in the Civil Court. It is submitted that no rule of estoppel can operate against the plaintiff in such a matter. It is, therefore, urged that the judgment given by the Senior Civil Judge, Tonk was without jurisdiction and should have been set aside by the learned District Judge.

5. On the other hand, learned counsel for the respondents has urged that previously the plaintiff had filed a suit in respect of subject matter of the present suit in the Court of Assistant Collector, Tonk and on an objection as to jurisdiction having begin raised by the defendants the plaint was returned to the plaintiff for presentation to the proper court. It is argued that if the plaintiff thought that the suit was triable exclusively by a revenue court then he should have got the order of the Assistant Collector set aside, but having taken no steps in that direction and having filed the present suit in the Civil Court, it is not open to the plaintiff to raise such an objection now. In the alternative he has also argued that the present suit clearly fall within the four corners of sec. 251 of the Rajasthan Tenancy Act No III of 1955 (which will hereinafter called the Act)and according to sub-sec.(2) of this section the Civil Court was competent to try the suit.

6. For a correct appraisal of the contentions, advanced by the learned counsel for the parties, it is necessary to examine in the first instan

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