JUDGMENT
Boys, J.
1. In this case there were certain partition proceedings in the revenue Court the applicants being defendants Nos. 1 – 5 in the suit before us. The Plaintiff in the suit before us raised the question of proprietary title. On the 3rd of August 1921 the plaintiff was directed by the Assistant Collector to bring a civil suit. The fifth issue framed in the first Court was as to whether the civil Court had jurisdiction, objection being taken by the defendants that the Assistant Collector had framed issues and decided to try them and that he had ne power to so change his mind. The trial Court decided this issue and also all the other issues against the defendants and decreed the suit. The lower appellate Court Cussed the suit on the preliminary point that the revenue Court had no jurisdiction to change its mind and refer the matter to the civil Court
2. For the appellant here it is pointed out that the revenue Court had not gone further than framing issues and fixing the date for final disposal, and that in fact no evidence or other enquiry was made. The lower appellate Court has based its decision on the principle of the decision in the case of Jamna Prasad v. Balmukand (1904) 36 All. 225. That principle is that if the revenue Court has once referred the matter to the civil Court, it has no further power to deal with the matter at all until the matter has been decided by the civil Court. The case was decided before the amendment of the law, but that is quite immaterial to the present case. The principle of that decision clearly was that the revenue Court by having referred the mater to the civil Court has become functus officio and has no further jurisdiction to touch the case. That principle is wholly inapplicable to the present case. It cannot possible be suggested that even if the revenue Court had jurisdiction to pass the order complained against, that; jurisdiction was wanting because it was functus officio. If it had no jurisdiction, the reason must be sought elsewhere.
3. For the respondents here it is again urged that the revenue Court having once framed issues and fixed a date for final disposal could not change its mind and refer the matter to the civil Court. We do not agree. It is clear that when objections based on a plea of title are, taken in the revenue Court, it must give the matter some consideration in its own mind, as to what are the questions it will have to decide, and it must inevitably hear something of the matter before it comes to a decision as to whether it would enquire into the matter itself under Sub-clause (c) or whether it will refer it to the civil Court Under an earlier sub-clause, There appears to us to be nothing whatever in the section to prevent the Court from referring the matter to the civil Court after it has gone to the length of framing issues. After all the issues really are only a clear way of stating what is the question in dispute for determination. Further, we think that such action is not prohibited in any way by any rule of commonsense. If, after the Court has gone as far as framing issues, it becomes apparent to it that the question is of such complexity that it should not proceed to enquire into it itself, it is only commonsense that it should then refer the matter to the civil Court, and as we have said, we find nothing in Section 111 opposed to this course. For respondents it was urged that if a reference to the civil Court may be made at the stage at which it was is the present case, there is nothing to prevent the extension of the principle to permitting a revenue Court to refer the case even after it has taken evidence. We should be prepared to go as far as that. We think that the revenue Court may be trusted to make up its mind at an early stage of the proceeding. For these reasons we think that the order of the trial Court on this preliminary objection was correct, and that of the lower appellate Court was wrong.
Banerji, J.
4. I agree with my learned brother, and I only wish to add that a suit for a declaration like the one in this case, is cognizable by the civil Court, except where Section 233 K of the Land Revenue Act bars it. In this case the bar can be removed by the revenue Court by an order under Section 111, Clause (b). I am of opinion that the order of the revenue Court directing the present plaintiff to institute the suit was a removal of the bar, and, therefore, the suit was entertainable.
5. The order of the Court is that the appeal is allowed and the order of the lower appellate Court is set aside, and the casa is remanded to the lower Court for trial according to law. Appellant will get his costs.
