Honble SHARMA, J. – The question for consideration in this appeal is as to whether the suit for partition and injunction with regard to an immovable property entered into revenue record as `Abadi & Banjad land, is maintainable in the civil court?

(2). This question has arisen in the circumstance set out herein below.

(3). A suit for partition and injunction was instituted by the plaintiff appellant (for short plaintiff) against the defendant respondents (for short defendants) in the Court of District Judge, Jaipur City Jaipur with regard to an immovable property bearing Khasra Nos. 225, 227 and 225/425 measuring 2 bigha 1 biswa situated in Village Madrampura near Commercial Complex Baldeo Plaza. In the plaint it has been averred by the plaintiff that the said property was jointly held by the parties and they have constructed their residential units over it. Alongwith the plaint a schedule describing the details of the property, has been appended. In the year 1968-69 proceedings of acquisition of said land were initiated by erstwhile Urban Improvement Board and in the year 1976 the said proceedings were completed and compensation was settled but subsequently an agreement had been entered into between the parties and the State Government under which a land measuring 330x9 ft. was agreed to be left for way at the disposal of UIT and the entire proceedings were dropped and for that a notification under section 48 of the Rajasthan Land Acquisition Act was issued and published in State gazette. In the award passed on conclusion of land acquisition proceedings the shares as settled by Collector was as under :

Bherulal - 1/4th

Sualal & Bansilal 1/4th

Hiralal 1/4th

Sri Moha 1/4th

In the plaint it has been pleaded that parties and their predecessors have constructed their residential houses and started presiding. Open land describe din Schedule `ka has been partitioned. Residential buildings of the parties have been shown in different colours in the schedule. All the inhabitants have their own electricity and water connection and they have been assessed for the Land and Building Tax also. The dispute between the parties is in existence for the last many years. The defendant No.1 with the consent of the parties was authorised to solve dispute but was unsuccessful. The plaintiff had withdrawn his consent and took shelter of court for partition of the property. The suit was contested by the defendants by filing separate written statements.

(4). In the written statement submitted by the defendant No.2 and No.3 a objection had been taken to the effect that since the suit related to agricultural land, it was not triable by the civil court but could only be tried by the revenue court. The land in dispute was described as `Banjad and as such could be referred as agricultural land as no order for its conversion was placed on record. The suit therefore was triable by the revenue court.

(5). When the matter came up before the trial court for the arguments on the application for temporary injunction which was filed along with the plaint the trial court observed that since the dispute regarding the jurisdiction of the court was involved, it was necessary to decide the issue relating to jurisdiction prior to adjudicate the application for issuance of temporary injunction. Thereafter conferring jurisdiction under Order 39 rule 4 CPC the trial court granted permission to make construction with certain specific direction to defendant No.1 in his dwelling portion. Against the said order, a Misc. Appeal was preferred before this Court. Vide order dated 29.1.1996, this court in S.B. Civil Misc. Appeal No. 722 of 1995 directed the trial court to decide issue relating to jurisdiction within twenty days.

(6). In pursuance to the said directions, the trial court framed following issue on 13.2.1996.

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(whether this court has jurisdiction to hear the present suit?)

(7). The trial court vide impugned order da

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