Rajasthan High Court - Jaipur
Ram Kripal Dasji Charitable Trust vs Phool Chand And Others on 29 February, 2012
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR J U D G M E N T Ram Kripal Das Ji Vs. Phool Chand & others Charitable Trust S.B.Civil First Appeal No.330/2010 Date of Judgement : 29.02.2012 HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL Mr.Sudesh Bansal for the appellant. Mr.Dhruv Atri for Mr.H.S.Sinsinwar for the respondents.
REPORTABLE:
1. Challenge in this appeal is to the impugned judgment and decree dated 5.7.2010 passed by Additional District Judge No.2, Jaipur District Jaipur in Civil Suit No.10/2005 whereby the learned trial Court by allowing an application filed under Order 7 Ruloe 11 CPC has dismissed the suit filed by the plaintiff-appellant.
2. Brief relevant facts for the disposal of this appeal are that the plaintiff-appellant filed a suit for declaration and permanent injunction against the defendant-respondents in the Court below with the averment that the land in dispute bearing Khasra No.389/1/1 measuring 17 biswa was orally gifted/donated by the khatedars of that land namely; Shri Godu and Shri Bhura for the purpose of construction of a temple to Maharaj Shree Ram Kripal Das Ji in the year 1984 and a temple came to be constructed on that land in the year 1985 and thereafter the appellnat-trust was formed and the land in dispute with temple on it and some other land of Maharaj Shree Ram Kripal Das Ji was entrusted to the appellant. It was also averred that from the year 1994 the appellant is in possession of the land in dispute but the respondents only by the reason that in revenue record their names stand recorded as khatedar-tenant, illegally and without any legal right are interfering in the possession of the land and they intend to transfer the land in dispute to some other persons. It was also averred in the plaint that since the year 1984, the land in dispute has not been used for agriculture purpose and after the construction of a temple on it, it has come within the 'Abadi' and the appellant is entitled to seek a declaration that the land in dispute is in the ownership of it. It was prayed that the land in dispute comprising in Khasra No.389/1/1 be declared in the ownership of the appellant and defendant-respondents be restrained by way of permanent injunction not to transfer it to any other person and to refrain themselves from interfering in the possession of the appellant.
3. The respondents filed written statement and it was denied that their predecessors in title ever transferred or gifted the land in dispute to Maharaj Shree Ram Kripal Das Ji, although it was admitted by them that on a part of the land, a temple has been constructed. It is the case of the respondents that the temple was constructed with the help of the villagers.
4. The defendant-respondents filed an application under Order 7 Rule 11 CPC stating therein that no cause of action has accrued in favour of the plaintiff-appellant and it has no right to file the present suit and it was prayed that the suit may be dismissed. A written reply was filed to the application and the learned trial Court after hearing the respective parties, allowed that application and by passing the impugned judgment and decree dismissed the suit filed by the appellant. Feeling aggrieved, the plaintiff-appellant is before this Court by way of this appeal.
5. Assailing the impugned judgment and decree, the learned counsel for the appellant has raised the following grounds:-
(i) According to clause (a) of Rule 11 of Order 7 CPC, it is to be seen whether plaint discloses a cause of action or not and a plaint can be rejected only when the Court finds that the plaint does not disclose cause of action and under this provision it cannot be considered that no cause of action has accrued in favour of the plaintiff whereas in the present case, the trial Court has dismissed the suit by arriving at a conclusion that no cause of action has accrued in favour of the appellant. It was further submitted that for deciding an application under Order 7 Rule 11 CPC only the averments made in the plaint are relevant and if by a meaningful reading of the entire plaint it is revealed that the plaint discloses a cause of action, the same cannot be rejected.
(ii) The learned trial Court has dismissed the suit also on the ground that the civil Court has no jurisdiction to entertain it even no such ground was taken in the application filed under Order 7 Rule 11 CPC. According to learned counsel, in absence of such objection, the Court below suo moto was not entitled to consider the issue of jurisdiction of the Civil Court.
(iii) Even if for the sake of arguments it is admitted that the Court was suo moto empowered to consider the issue of jurisdiction of Civil Court, even then looking to the averments made in the plaint and relief claimed by the appellant, it cannot be said that the Civil Court has no jurisdiction to entertain and decide the present suit. It is well settled that whether the suit is entertainable by a Civil Court or a Revenue Court, the allegations and averments made in the plaint only are to be considered. In the present case, it has been averred that the land in dispute was orally gifted by the khatedars for the purpose of construction of a temple in the year 1984 to Maharaj Shree Ram Kripal Das Ji and thereafter a temple and some buildings were constructed on it and it was entrusted to the appellant-trust. It has also been admitted by the respondents that a temple has been constructed although, they dispute the fact that it was constructed by late Maharaj Shree Ram Kripal Das Ji. According to the averments made in the plaint the land in dispute has not been used for agriculture purpose since the year 1984 and a temple and some other buildings have been constructed on it and it has been converted into Abadi land and it is situated in Abadi area of a village and therefore, only a Civil Court can have jurisdiction. In the plaint no relief regarding tenancy rights as a tenant has been claimed by the plaintiff-appellant, therefore, Section 207 of the Rajasthan Tenancy Act is not applicable to the facts of case. Jurisdiction of the Civil Court can not be said to be barred only by the reason that originally the land in dispute was an agriculture land. According to learned counsel if an agriculture land even without converted into an Abadi land is being used for non-agriculture purpose and some building has been constructed on it and ownership- rights are being claimed in it, only a Civil Court and not a Revenue Court has jurisdiction to deal with such matter. The appellant is claiming ownership-rights in the land in dispute on the basis of oral gift which is a civil right and therefore, only a Civil Court can deal with such a right.
(iv) It is well settled law that exclusion of civil court cannot be lightly inferred and the jurisdiction of the civil court cannot be ousted until the exclusion is clearly established.
(v) The suit was not liable to be dismissed even if the application filed under Order 7 Rule 11 CPC was allowed and the only course open to the trial Court was to return the plaint to the plaintiff-appellant for presentation to a proper Court after following the procedure provided under Order 7 Rule 10-A CPC. The trial Court has committed illegality in dismissing the suit without following the procedure provided under Order 7 Rule 10-A CPC.
6. In support of his submissions, the learned counsel for the appellant relied upon the cases of Madho Singh & Ors. Vs. Moni Singh (dead) by Lrs. & Ors. reported in (2004) 12 SCC 214, RSEB, Jaipur & Ors. Vs. Rambabu & State of Raj. reported in RLR 1987 (I) 173, Shyam Kumar & Ors. Vs. Budh Singh & Ors. reported in AIR 1977 (Raj.) 238, Govind Narayan Vs. Shri Baheti Dharmshala & Ors. reported in 2011 (4) WLC (Raj.) 531, Sushila & Ors. Vs. State of Rajasthan & Ors. reported in 2008 (1) WLC (Raj) 395, Phelu S/o Shri Sheopal Vs. Ramcharan S/O Matoli; Ram Prasad S/O Shri Matoli reported in 2006 WLC (Raj.) UC 490 and Sopan Sukhdeo Sable & Ors. Vs. Assistant Charity Commissioner & Ors. reported in (2004) 3 SCC 137.
7. On the other hand, the learned counsel for the respondents by supporting the impugned judgement and decree submitted that even if objection regarding entertainment of the suit by the Civil Court was not taken in the application, the Court below was competent to consider this issue suo moto and the impugned judgment and decree cannot be challenged on the ground that no such objection was taken in the application. It was also submitted that from the meaningful reading of the plaint it is clear that infact appellant is claiming khatedari rights in the land in dispute on the basis of oral gift/donation allegedly made by the predecessor of the respondents and, therefore, in the light of relevant provisions of the Rajasthan Tenancy Act only Revenue Court has jurisdiction to deal with the suit. It was also contended that merely because some temple and other buildings have been constructed, the nature of land in dispute could not change as it is an admitted fact that it stands in the revenue record as agriculture land in the name of respondents as khatedar tenants. It was further submitted that unless an agriculture land is used for a non agricultural purpose in accordance with the law, such land always remains an agriculture land even if some building has been constructed upon it. The appellant apart from declaration, is also seeking permanent injunction which can be granted by a revenue court only. So far as non disclosure of cause of action is concerned, if the averments made in the plaint are considered in a proper manner, it discloses no cause of action in favour of the appellant as there is no material on record indicating that the land in dispute was ever transferred to the appellant.
8. I have considered the submissions made on behalf of the respective parties and also gone through the material made available for my perusal as well as the relevant legal provisions and the case law.
9. Order 7 Rule 11 of CPC reads as follows:
11.Rejection of plaint-The plaint shall be rejected in the following cases-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of Rule 9.
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.
10. In the present case, the learned lower court has relied upon clauses (a) and (d) of Rule 11.
11. Before dealing with the factual scenario, the spectrum of Order 7 Rule 11 in the legal ambit needs to be noted. The legal position in regard to Order 7 Rule 11 CPC may be summerised as below:
(i) The relevant facts which need to be looked into for deciding an application under Order 7 Rule 11 are the averments made in the plaint. The trial Court can exercise the power at any stage of the suit-before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order 7 Rule 11 of the Code, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.
(ii) The basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
(iii) The Court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code.
(iv) For deciding such an application not any particular plea has to be considered, and the whole plaint has to be read. Only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected.
(v) Rule 11 of Order 7 CPC lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of the written statement. Instead, the word shall is used, clearly implying thereby that it casts a duty on the court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the various clauses of Rule 11, even without intervention of the defendant. Even if no objection is taken by the defendant by filing an application under this provision, the court itself is empowered to reject the plaint if it finds that the case is covered within the four corners of this provision.
(vi) It is well settled that the question of jurisdiction namely whether a suit is exclusively triable by a revenue court or a Civil Court can take cognizance of it has to be decided on the allegations made in the plaint. It is also further settled that it is the substance of the plaint and the true nature of the suit that is to be seen to determine the question of jurisdiction. If in substance the relief claimed is one which the revenue court alone is entitled to give, the jurisdiction of the civil court will be ousted even though it may require the revenue court to incidentally determine some ancillary facts. In order to determine the true nature of the relief claimed in a suit, the pith and substance and not the form in which the relief may be couched has to be considered. Each case has to be examined on its own particular facts and no universal rule can be applicable to every case.
12. In the light of the well settled legal position and the averments made in the plaint filed by the plaintiff-appellant, it is to be considered whether the impugned judgment and decree passed by the Court below is liable to be set aside.
13. It is an admitted fact that the land in dispute, an agriculture land, originally belonged to predecessors in title of the defendant-respondents and even at present it stands in the revenue record as agriculture land in the name of respondents as khatedar-tenants. It is also an admitted fact that it has not been converted for a non agriculture purpose in accordance with law. It is also an admitted fact that a temple and some other buildings have been constructed on the land in dispute and before raising such constructions no permission was obtained from the competent authority. According to appellant the land was orally gifted by the khatedars for the purpose of construction of a temple in the year 1984 and a temple was constructed on it in the year 1985 and thereafter the land in dispute and some other land of Maharaj Shree Ram Kripal Das Ji was entrusted to the appellant-trust and, therefore, the appellant has acquired ownership right in it. The appellant has sought declaration to the effect that it has acquired ownership right and the respondents be restrained by way of permanent injunction not to transfer the land in dispute to any other person and to refrain themselves from interfering in the possession of the appellant. In my view the real cause of action in the present case is alleged transfer of the land by way of oral gift/donation by the predecessors in title of the respondents to late Maharaj Shree Ram Kripal Das Ji and subsequent entrustment of it to the appellant and as a result thereof acquisition of khatedari rights in it by the appellant and not the construction of a temple and some other buildings on it. Although, it is an admitted fact that a temple and some other buildings have been constructed on the land in dispute and it is not being used for agriculture purposes since long but merely by that reason the nature of the land can not be said to be changed. Mere construction of a temple or some building on an agriculture land without proper permission can not change its real nature. It is an admitted fact that the land in dispute in revenue record still stands as an agriculture land and respondents are khatedar-tenants of the same. An agriculture land can be used for a non agriculture purpose only in accordance with law.
14. It may be useful here to consider Section-90A of the Rajasthan Land Revenue Act, 1956 which is as below:
90-A. Use of agriculture land for non-agricultural purpose-(1) No person holding any land for the purpose of agriculture, and no transferee of such land or any part thereof, shall use the same or any part thereof, by the construction of buildings thereon or otherwise for any other purpose except with the written permission of the State Government obtained in the manner hereinafter laid down and otherwise that in accordance with the terms and conditions of such permission.
(2) Any such person desiring to use such land or any part thereof for any purpose other than that of agriculture shall apply for the requisite permission in the prescribed manner and to the prescribed officer or authority and every such application shall contain the prescribed particulars.
(3) The State Government shall, after making or causing to be made due inquiry in the prescribed manner, either refuse the permission applied for or grant the same subject to the prescribed terms and conditions.
(4) When any such land or part thereof is permitted to be used for any purpose other than that of agriculture, the person to whom such permission is granted shall be liable to pay to the State Government in respect thereof-
(a) an urban assessment levied at such rate and in accordance with such manner is may be laid down in rules to be made in this behalf by the State Government; or
(b) such amount by way of premium as may be prescribed by the State Government; or
(c) both.
(5) If any such land is so used-
(a) without the written permission of the State Government being first obtained, or
(b) otherwise than in accordance with the terms and conditions of such permission, or
(c) after such permission having been refused under sub-section(3), or
(d) without making any of the payments referred to sub-section (4), the person originally, holding the land as aforesaid for the purpose of agriculture as well as all subsequent transferees, if any, shall be deemed to be a trespasser or trespassers, as the case may, and shall be liable to ejectment from such land in accordance with Section 91 as if he or they had occupied or continued to occupy such land without lawful authority and to every such proceeding the provisions to Section 212 of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955) shall apply as if such land were in danger or being wasted, damaged or alienated:
Provided that State Government may, in lieu of having such person and the subsequent transferees so ejected from the land in question, allow him or them, as the case may be, to retain such land, use the same for any purpose other than that of agriculture on payment to the State Government, in addition to the urban assessment and premium payable under sub-section (4) of such fine by way of penalty as may be prescribed.
This provision thus, provides that an agricultural land or any part thereof cannot be used by any person by construction of buildings thereon except with the written permission of the State Government obtained in the prescribed manner and otherwise than in accordance with the terms and conditions of such permission. It also provides that if such land is used for a non agriculture purpose without the required permission of the State Government or otherwise than in accordance with the terms and conditions of such permission, such person shall be deemed to be trespasser and shall be liable to ejectment from such land in accordance with Section 91 of the Rajasthan Land Revenue Act as if he had occupied or continued to occupy such land without lawful authority. It is an admitted fact that in the present case no permission of the State Government or any of the competent authority was obtained before temple and other buildings were constructed on the land in dispute, therefore, in my view the nature of the land is still that of an agricultural land and the real question to be decided in the present suit is whether by way of alleged oral gift khatedari rights have accrued to Maharaj Shree Ram Kripal Das Ji and subsequently to the appellant and whether a decree of declaration to that effect can be passed and respondents can be restrained by permanent injunction. In my view unless a clear finding to that effect is given, the relief claimed by the appellant cannot be granted. Under the provisions of Rajasthan Tenancy Act, declaration and permanent injunction regarding an agricultural land can be granted only by a revenue court. It cannot be disputed that a suit for declaration of tenancy rights regarding an agricultural land has to be filed under Section 88 whereas a suit for permanent injunction has to be filed under Section 188 of the Rajasthan Tenancy Act. Section 207 of the Rajasthan Tenancy Act provides that all suits of the nature specified in the III Schedule of the Act shall be heard and determined by a revenue court and no court other than a revenue court shall take cognizance of any such suit. A suit for declaration finds place in Item No.5 whereas suit for permanent injunction finds place in Item No.23 C of the III Schedule. It is thus, very much clear that the present suit was clearly barred by law as Section 207 of the Rajasthan Tenancy Act bars such a suit from being taken cognizance and considered by a court other than a revenue court. The learned trial Court has rightly arrived at a conclusion that the suit is not entertainable by a civil Court.
15. Now, it is to be seen whether the plaint does not disclose a cause of action as contemplated by clause (a) of Rule 11 of Order 7 CPC. For that purpose also the plaint as a whole is to be considered. If the Court finds that a meaningful and not formal reading of the plaint, it is manifestly vexatious and meritless in the sense of not disclosing a real right to sue, it should exercise the power under Order 7 Rule 11 of the Code. In the present case, even according to appellant the land in dispute was transferred by way of an oral gift. It is to be seen whether rights in an agriculture land can be transferred by an oral gift. The answer comes only an emphatic No. Although, interest of a khatedar tenant in an agriculture land can be transferred by way of a gift also but it can be made only in accordance with the releval legal provisions. According to Section 123 of the Transfer of Property Act, a gift of immovable property can be effected by a registered instrument signed by or on behalf of the donor and attested by atleast two witnesses. Section 17 of the Indian Registration Act also provides that gift of immovable property can be effected only by a registered instrument. It is well settled that rights in immovable property cannot be transferred by an oral gift. Therefore, in the present matter in absence of a registered gift-deed attested by atleast two witnesses, no title/right to Maharaj Shree Ram Kripal Das Ji stood transferred only by way of the alleged oral gift-deed made by the original khatedars of the land in dispute and as no title/rights stood transferred to Maharaj Shree Ram Kripal Das Ji, he was not entitled to further transfer the same in any manner to any person including the plaintiff-appellant. Although, gift to idol/deity even of immovable property may be made orally but in the present case the contention is that the oral gift was made personally to Maharaj Shree Ram Kripal Das Ji in the year 1984 and thereafter, in the year 1985 the temple was constructed. Therefore, even averments made in the plaint do not disclose cause of action in favour of the plaintiff-appellant. When rights in the land did not validly pass to the appellant, it has no right to sue. In the present case, the plaint is manifestly vexatious and meritless. Even if the averments of oral gift and subsequent entrustment of the land in dispute to the appellant are believed to be true, even then the appellant can not succeed at all in absence of valid transfer. I am of the considered view that such suit has to be nipped in the bud at the earliest opportunity. Provisions of Order 7 Rule 11 CPC are designed and aimed at preventing vexatious and frivolous litigation. Therefore, the plaint is liable to be rejected on this account also and the trial court has rightly done so.
16. So far as the submission of the learned counsel for the appellant regarding return of plaint to the plaintiff-appellant for filing it in a proper court instead of rejection of it or dismissal of the suit itself is concerned, in my opinion that position could have been only when the plaint was liable to be rejected under clause (d) as barred by law being triable by a revenue court but in the present case it has also been found that the plaint is liable to be rejected under clause (a) also as it does not disclose a cause of action, therefore, this submission of learned counsel for the appellant is also not tenable.
17. It is well settled that if a case comes within the purview of Order 7 Rule 11 CPC only the plaint is liable to be rejected and the suit itself cannot be dismissed on that account but in the present case, the learned trial Court has wrongly dismissed the suit itself. Therefore, the impugned judgment and decree is liable to be modified accordingly.
18. Consequently, the impugned judgment and decree dated 5.7.2010 passed by Additional District Judge No.2, Jaipur District in Civil Suit No.10/2005 is modified in the manner that the plaint filed by the plaintiff-appellant is rejected under the provisions of Order 7 Rule 11 CPC and this appeal being devoid of any merit is, hereby, dismissed without any order as to costs.
Stay application also stands dismissed and disposed of.
(PRASHANT KUMAR AGARWAL), J teekam All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Teekam Khanchandani Private Secretary