Rajasthan High Court - Jodhpur
Baga Ram vs Balkishan @ Balramkishan on 16 May, 2019
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 2117/2019
Bagaram & Ors.
----Petitioners
Versus
Balkishan alias Balramkishan & Anr.
----Respondents
For Petitioner(s) : Mr. M.D. Boob
For Respondent(s) : Mr. C.R. Jakhar
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment Reserved on 09/05/2019 Pronounced on 16/05/2019
1. This writ petition under Articles 226 and 227 of the Constitution of India has been preferred claiming the following reliefs:
"vr% lk;yku dh rjQ ls izLrqr dh tk jgh fjV ;kfpdk Lohdkj dh tkosaA v/khuLFk U;k;ky; }kjk ikfjr vkns'k fnukad 16@11@17 ,oa vkns'k fnukad 7@1@19 vikLr fd;s tkosA xSj lk;yku }kjk izLrqr v/khuLFk U;k;ky; esa izLrqr izkFkZuk i= vUrxZr /kkjk 10 lifBr /kkjk 151 nhokuh izfdz;k lafgrk [kkfjt fd;k tkosA v/khuLFk U;k;ky; dks ewy okn dh Rofjr lquokbZ djus dk vkns'k ikfjr fd;k tkosA vU; vkns'k tks lk;yku ds i{k esa ikfjr fd;k tkuk vko';d gks ikfjr Qjek;k tkosA"
2. Brief facts of this case, as noticed by this Court, are that the petitioners No.2 to 10 had executed a power of attorney in favour of petitioner No.1, which was duly notarized on 12.12.2017.
3. The petitioners had challenged the registered sale deed dated 13.12.2010 executed by respondent No.1-Balkishan in (Downloaded on 28/06/2019 at 04:43:46 AM) (2 of 10) favour of respondent No.2-Govindpuri. The petitioners also sought injunction by filing a suit on 05.05.2013, which is being heard by the learned Additional District Judge No.5, Jodhpur Metropolitan.
4. The bone of contention in the present case is an impugned order passed in favour of the respondents upon an application preferred by them for keeping the proceedings stayed vide application dated 17.08.2016 under Section 10 read with Section 151 CPC.
5. The claim of the respondents was that a revenue suit bearing No.335/2011 titled as 'Baga Ram Vs. Govindpuri' was pending, and thus, since the reliefs claimed were overlapping therefore, the proceedings in the suit for cancellation of the registered sale deed may be kept in abeyance.
6. The impugned order has been passed accepting the plea of res subjudice raised by the respondents on 16.11.2017. The review petition was filed against the said order, but the same was also dismissed on 07.01.2019.
7. The revenue suit instituted under Sections 88 and 183 of the Rajasthan Tenancy Act by the respondents was dismissed on 30.08.1976 and the revenue appeal No.171/1976 was also dismissed on 22.04.1980.
8. The parcha bayan and the land record, which were entered in favour of the petitioners and was entered by an amendment on 19.12.1957 has been set aside in the revenue appeal No.16/59 on 21.02.1959.
9. The respondents laid a challenge to such khatedari entries in favour of the petitioners and the same have been consolidated in revenue suit No.161/71.
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(3 of 10)
10. The aforesaid challenge laid by the respondents was dismissed on 30.08.1976, against which an appeal was preferred bearing No.371/76, which has also been dismissed on 31.12.1977.
11. Learned counsel for the petitioners submitted that the learned courts below have failed to appreciate that the revenue suit filed under Sections 88 and 183 of the Rajasthan Tenancy Act preferred by the respondents was dismissed on 30.08.1976 and the revenue appeal was also dismissed on 22.04.1980.
12. Learned counsel for the petitioners further submitted that even after dismissal of such proceedings by the learned authorities one after another, the application for taking the civil suit preferred by the petitioner as res subjudice is unlawful and the consequential orders passed are contrary to law.
13. Learned counsel for the petitioner also submitted that once the revenue suit preferred by the respondents under Section 88 and 183 of the Rajasthan Tenancy Act has been dismissed, then the indulgence being granted by the civil court to the only application of the respondents was bad in the eye of law.
14. The recording of khatedari rights in favour of the petitioners vide order dated 19.12.1957 has also been set aside in appeal No.16/59 on 21.02.1959, and thereafter, the whole issue was consolidated in suit No.161/71.
15. Learned counsel for the petitioners further submitted that non-entry of the khatedari rights in favour of the petitioners inspite of such proceedings is wholly illegal, and therefore, the res subjudice proceedings are also bad in the eye of law.
16. Learned counsel for the petitioners also submitted that the relief has to be considered for the petitioners under Section 31 of the Specific Relief Act, which can be granted only by the civil (Downloaded on 28/06/2019 at 04:43:46 AM) (4 of 10) court and the petitioners have not sought declaration of their khatedari rights.
17. In support of his submissions, learned counsel for the petitioners relied upon the judgment rendered by this Hon'ble Court in Rampal Vs. Sub-Divisional Officer, Sujangarh & Ors., reported in 2016-17 (Supp.) RRT 299, relevant portion of which reads as under:-
"9. Indisputably, the question with regard to declaration of sale deed as null and void as prayed for by the plaintiff in the civil suit is dependent on determination of question as to whether the plaintiff is entitled for declaration of his khatedari right over the land in question. Suffice is to say that the relief with regard to declaration of sale deed as null and void is only ancillary and consequential relief, which can be granted by the revenue Court if it passes a decree for declaration in favour of the plaintiff to the effect that he is entitled to be declared khatedar tenant of the land in question.
13. Thus, in view of the settled position of law discussed as above, in the consideration opinion of this Court, the order impugned passed by the Court below, rejecting the application preferred by the petitioner is not sustainable in the eyes of law and deserves to be set aside and the application preferred by the petitioner under Sec. 10 CPC deserves to be allowed as prayed for.
14. Accordingly, the writ petition is allowed. The order impugned Dt. 6.9.03 passed by the Additional District Judge, Ratangarh in Civil Suit No. 16/03, is set aside. The application preferred by the petitioner under Sec. 10 CPC is allowed. The proceedings in Civil Suit No. 16/03 pending before the Court of Additional District (Downloaded on 28/06/2019 at 04:43:46 AM) (5 of 10) Judge, Ratangarh, shall remain stayed pending disposal of the Revenue Suit No. 57/01 preferred by the respondent-plaintiff pending before the Sub Divisional Officer, Sujangarh. No order as to costs."
18. Learned counsel for the petitioners has also placed reliance on the judgment rendered by this Hon'ble Court in Pratapi (Smt.) Vs. Jhamku & Ors., reported in 2013(3) DNJ (Raj.) 1112, relevant portion of which reads as under:-
"18. In the backdrop of the position of law settled by various decisions discussed as above, there cannot be any quarrel with the proposition that when in a suit ancillary relief to the main relief sought is for declaration of a sale deed of an agriculture land as void ab initio, the suit can always be entertained and tried by the Revenue Court. But then, the exclusive jurisdiction of the Revenue Court, in no manner, bars the jurisdiction of civil court in entertaining the suit for cancellation of the sale deed of agricultural land executed by any person without there being any title over the property. In other words, the suit regarding the cancellation of the sale deed even in respect of an agriculture land could be exclusively tried by the civil court."
19. Reliance has also been placed by learned counsel for the petitioners on the judgment rendered by this Hon'ble Court in Khema & Ors. Vs. Shri Bhagwan & Ors., reported in 1994(2) WLN 322, relevant portion of which reads as under:
"14. In the present second appeal as I have said earlier, the main relief is the cancellation of three (Downloaded on 28/06/2019 at 04:43:46 AM) (6 of 10) registered sale deeds mentioned above, therefore, unless the aforesaid three registered sale deeds are cancelled, no other relief can be granted by Courts. The cause of action in the present suit is the execution of the three registered sale deeds by defendant respondent No. 3 Uda. In fact, it is this cause of action which has forced the plaintiffs to file the present suit. Hence, the relief for cancellation of three registered sale deeds is the main relief which cannot be granted by Revenue Courts and other reliefs sought in the present suit are ancillary reliefs. Such intricate questions of cancellation of sale deeds are to be decided by judicially trained mind of civil Courts and cannot be left to be decided by Revenue Courts which are obviously not well acquainted to try such intricate questions of law. Under Specific Relief Act, the civil Courts are expected to pass decree directing the Sub-Registrar (Registration) to score out from the registers the existence of such sale deeds for all time to come in order to adjudicate the matter between the parties finally. Under the Specific Relief Act, Revenue Courts have not been given 'such powers for cancellation of sale deeds, therefore, both the Courts have rightly recorded a finding that the present suit being a suit for cancellation of sale deeds is exclusively triable by Civil Court and the other reliefs sought by the plaintiff are ancillary reliefs. The relief for perpetual injunction and other such reliefs are incidental to the main relief and would follow as a consequence to the finding of the Court with regard to cancellation of three sale deeds mentioned above."
20. On the other hand, learned counsel for respondent No.2 submitted that the respondents have preferred a revenue suit against the present petitioners on 27.5.2011 seeking declaration (Downloaded on 28/06/2019 at 04:43:46 AM) (7 of 10) of khatedari rights, temporary injunction and also cancellation of the registered sale deed dated 13.12.2010 before the Additional Collector, Jodhpur.
21. Learned counsel for the respondent No.2 further submitted that since the issue regarding the same land in question and declaration of khatedari rights is pending before the Additional Collector, Jodhpur, therefore, the litigation under Section 31 of the Specific Relief Act before the civil court cannot be continued.
22. Learned counsel for the respondent No.2 relied upon the precedent law laid down by the Hon'ble Supreme Court in Pyarelal Vs. Shubhendra Pilania (Minor) thr. Natural Guardian (Father) Shri Pradeep Kumar Pilania & Ors., reported in 2019(1) RRT 291, relevant portion of which reads as under:
"18. The appellant has prayed that the gift deed dated 10 February, 2011 be declared void to the extent of the share claimed by the appellant and that respondent Nos. 1 to 5 be restrained from alienating the share of the appellant. The civil court may decree the relief prayed only if it is first determined that the appellant is entitled to khatedari rights in the suit property. Under the provisions of the Tenancy Act, the jurisdiction to declare khatedari rights vests exclusively with the revenue courts. Only after such determination may the civil court proceed to decree the relief as prayed. The explanation to Section 207 clarifies that if the cause of action in respect of which relief is sought can be granted only by the revenue court, then it is immaterial that the relief asked from the civil court is greater than, or in addition to or not identical with the relief which the revenue court would have granted. In view of this matter, the civil court (Downloaded on 28/06/2019 at 04:43:46 AM) (8 of 10) may not grant relief until the khatedari rights of the appellant have been decreed by a revenue court. 22 In the present case, the High Court has proceeded on the basis that the suit seeking a declaration of the gift deed relating to disputed agricultural land situated in Sikar as void and restraining Respondent Nos. 1 to 5 from transfer or sale of the agricultural land before the civil court is squarely covered by the bar to the jurisdiction of the civil court under the provisions of the Tenancy Act. The claim of the appellant to khatedari rights is pending adjudication by a revenue court which has the exclusive jurisdiction to adjudicate upon such a claim. The appellant has no right to seek relief before the civil court without first getting his khatedari rights decreed by the revenue court."
23. Learned counsel for the respondent has also placed reliance on the judgment rendered by this Hon'ble Court in Geeta Devi (Smt.) & Ors. Vs. Pushap Chand & Ors., reported in 2019(1) RLW 211 (Raj.), relevant portion of which reads as under:-
"17. As laid down in the case of Hasti Cement (supra) once the allegations made in the plaint seek to make out a case that the transaction resulting in sale deed pertaining to agriculture land, which is sought to be questioned, is void, the jurisdiction lies with (7 of 7) [CR-190/2016] the revenue court only and the jurisdiction of the civil court would be barred under Section 207 of the Act.
18. In the present case, as noticed hereinbefore, as the allegations make out a case of sale deed dated 17/11/2007 being void, the suit as filed by the plaintiff could only be maintained before the revenue court and same was barred under Section (Downloaded on 28/06/2019 at 04:43:46 AM) (9 of 10) 207 of the Act. The trial court clearly fell in error in rejecting the application filed by the petitioners.
19. Consequently, the revision petition is allowed. The order dated 6/10/2016 passed by Addl.
District Judge No.4, Jodhpur Metropolitan is quashed and set aside. The application filed by the petitioner under Order VII Rule 11 CPC is allowed and it is held that the plaint filed in the present case is barred by law. However, exercising powers under Order VII Rule 10 CPC, the trial court is ordered to return the plaint to the plaintiff for being presented before the appropriate revenue court.
No orders as to costs."
24. After hearing learned counsel for the parties as well as perusing the record of the case alongwith the precedent law cited at the Bar, this Court is of the opinion that it is not in dispute that a suit for declaration of khatedari rights filed by the respondents on 27.05.2011 against the petitioners is pending before the Additional Collector, Jodhpur and the khatedari rights of the land in question are being adjudicated.
25. This Court finds that the civil court may decree the relief prayed by the petitioners only if it is first determined that the petitioners are entitled to khatedari rights in the suit property. This Court also finds that under the provisions of the Tenancy Act, the jurisdiction to declare khatedari rights vests exclusively with the revenue courts, and only after such determination may the civil court proceed to decree the relief as prayed. The explanation of Section 207 clarifies that if the cause of action in respect of which relief is sought can be granted only by the revenue court, then it is immaterial that the relief asked from the civil court is (Downloaded on 28/06/2019 at 04:43:46 AM) (10 of 10) greater than, or in addition to or is not identical with the relief which the revenue court would have granted. Thus, the civil court may not grant relief until the khatedari rights of the petitioners have been decreed by a revenue court.
26. The precedent law laid down by the Hon'ble Supreme Court in Shubhendra Pilania (supra) as cited by learned counsel for the respondents is clearly applicable, whereas the judgments cited by learned counsel for the petitioners are not applicable to the facts and circumstances of the present case.
27. In light of the aforesaid observations, the present writ petition is dismissed. However, it is made clear that though the issue raised has to be decided by the civil court, but only after once the khatedari rights are determined by the revenue court. Therefore, the stay of suit subjudice is not going to affect the rights of either of the parties. Once the khatedari rights are determined by the revenue court, it shall be open for the petitioners to agitate their suit. It is further made clear that the relief with respect to declaration of the sale deed as null and void can be granted by the revenue court, as laid down in the aforementioned precedent law. Stay Application No.2053/2019 also stands dismissed accordingly.
(DR. PUSHPENDRA SINGH BHATI),J Skant/-
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