Rajasthan High Court - Jaipur
Khema And Ors. vs Shri Bhagwan And Ors. on 24 May, 1994
Equivalent citations: AIR1995RAJ94, 1995(3)WLC440, 1994(2)WLN322
JUDGMENT P.R. Yadav, J.
1. This second appeal has been filed under Section 100, C.P.C. by defendant appellants against the judgment and decree dated 30-6-1980 passed by learned District Judge. Bhilwara in Civil Appeal No. 91 of 1977 confirming the judgment and decree dated 22-10-1977 passed by the learned Civil Judge, Bhilwara in original Civil suit No. 34 of 1971 -- Bhagwan and Anr. v. Khema and Ors.
2. It is pertenant to mention that the learned District Judge. Bhilwara by his impugned judgment and decree had allowed the cross objections filed by plaintiff respondent Bhagwana and his mother Nani under Order 1, Rule 22, C.P.C. modifying the decree passed by the learned Civil Judge decreeing the restoration of the possession by ejecting the defendant appellants Nos. 1 to 3 and defendant respondent No. 4.
3. Civil Suit was filed by Shri Bhagwana and his mother Smt. Nani plaintiff-respondents Nos. 1 and 2 on the ground inter alia that the land in dispute is an ancestral property and they are members of the joint Hindu Family and they are governed by Matakshrs School of Hindu Law. According to the plaint allegation, plaintiff No. 1 Bhagwana is a minor coparcener while his mother plaitniff No. 2 Nani had charge over the disputed land being legally wedded wife of defendant Uda. It is also alleged in the plaint that the disputed agricultural land is ancestral acquisition in which Bhagwana plaintiff-respondent No. 1 is a coparcener and the defendant Uda had no right, title and interest to execute three sale deeds in favour of defendants 1 to 4. It is also alleged that the registered sale deed, executed by defendant respondent No. 3 Uda on 2-4-68 in favour of Khema defendant appellant No. 1 aboul Plot No. 1143 area 6 bigha 13 biswas for a consideration of Rs. 700/-; the second registered sale deed executed by defendant Uda on 15-5-68 in favour of Gokul defendant respondent No. 4 about Plot No. 101 are I Bigha 2 Bishwas for a consideration of Rs. 500/- and third registered sale deed executed dated 15-5-68 by Shri Uda in favour of Shola and Kana defendant-appellants Nos. 2 and 3 about Plots Nos. 102 and 106 area 2 Bigha 16 Biswas with a well for consideration of Rs. 2,500/-. It is further alleged that aforesaid three registered sale deeds have been executed by Uda without their permission and without any legal necessity. It is also alleged that the aforesaid sale deeds had been executed by defendant Uda without consideration which has necessitated to file present suit for cancellation of three sale deeds and also for restoration of possession.
4. After service on defendants Nos. 1 and 4 transferees as well as defendant No. 5 Uda, transferor filed ajoint written statement denying the plaint allegations. In their written statement it is asserted inter alia that the land in dispute is self-acquired agricultural land of Uda. It is also asserted that although Smt. Nani plaintiff No. 2 is legally wedded wife of Uda but later on she became a lady of easy virtue and started to live in adultery with other persons and Bhagwana is born with the union of others and as such Bhagwana is not the son of Uda and Nani ceased to be legally wedded wife of Uda and as such she is not entitled to claim maintenance from Uda.
5. On the basis of the aforesaid pleadings of the parties, necessary issues were framed by learned Civil Judge and both the parties were allowed to adduce their oral and documentary evidence in support of their respective claims.
6. Learned Civil Judge on the basis of evidence adduced by both the parties held that the disputed agricultural land is ancestral acquisition. In respect of Plot No. 101 it is held that it was acquired by Uda by registered sale deed 28-5-66 from Mohanlal but according to learned Civil Judge Plot No. 101 which was acquired by Uda was acquired by him with the earning of other agricultural ancestral land. Since the aforesaid Plot No. 101 was acquired by him with the earning of ancestral agricultural land having common nucleus, therefore, Plot No. 101 will also be treated to be an ancestral property. The learned Civil Judge also came to this conclusion that plaintiff No. 1 Bhagwana is son of defendant Uda and Smt. Nani is the legally wedded wife of him. It is further held by learned Civil Judge that since the land in dispute was ancestral, therefore, defendant Uda had no legal authority to execute the aforesaid registered sale deeds in favour of defendant-appellants Nos. 1 to 3 along with defendant-respondent No. 4 without having permission from Bhagwana who is the co-sharer. It is also held that the aforesaid registered sale deeds have been executed by Uda without any legal necessity, therefore, the aforesaid three registered sale deeds are void and liable to be cancelled. According to learned Civil Judge, the payment of Court-fee is sufficient and the suit is not bad for misjoinder of parties or of multiferiousness for causes of action. It has also been held that Civil Court has jurisdiction to decide the present controversy between the parties. However, it is apparent from the finding recorded by the learned Civil Judge that the aforesaid three registered sale deeds were not executed without consideration. In fact, according to the learned Civil Judge the defendant-appellants Nos. 1 to 3 and respondent-defendant No. 4 had purchased the disputed land after paying consideration which is duly proved from the recital made in the aforesaid three registered sale deeds.
7. On the basis of aforesaid finding recorded by the learned Civil Judge, he decreed the suit for cancellation of the sale deeds and declared that Uda had no right to transfer the land in dispute in favour of defendant appellants Nos. 1 to 3 and defendant respondent No. 4 without permission of Bhagwana, therefore, the aforesaid three registered sale deeds executed by Uda are not binding upon the plaintiffs. He also held that Smt. Nani plaintiff No. 2 had charge over the agricultural land in dispute.
8. Aggrieved against the aforesaid judgment and decree passed by the iearned Civil Judge, the defendant appellants Nos. 1 to 3 and defendant respondents Nos. 3 and 4 filed a joint appeal before the learned District Judge, Bhilwara and plaintiff respondents 1 and 2 also filed cross appeal under Order 41, Rule 22 of C.P.C. The learned District Judge dismissed the appeal filed by defendant-appellants Nos. 1 to 3 and defendant-respondents Nos. 3 and 4 and allowed the cross objection filed by plaintiff respondents Nos. 1 and 2. It is apparent from the judgment and decree passed by learned District Judge that he modified the decree passed by learned Civil Judge restoring possession to the plaintiff-respondent No. 1 over the entire land after passing decree for ejectment against the transferee of Uda.
9. Aggrieved against the aforesaid judgment and decree passed by Courts below, the defendant-appellants have preferred this second appeal before this Court. The appeal filed by the defendant appellant was ad milted on 28-8-1980 by this Court and following substantial questions were formulated.
1. That the lower appellate Court has committed an error of law in holding that the property in dispute was ancestral property in the circumstances of the case.
2. That the lower appellate Court has erred in holding that the sale deeds of the property in dispute executed by respondent No. 1 in favour of the appellants and respondent No. 4 were without any legal necessity and in setting aside the sales.
3. That the lower appellate Court has erred in passing a decree for possession of the property in dispute as well as for cancellation of the sale deeds in the circumstances of this case.
4. That in any case no decree for cancellation of the sale deeds and possession of the property in dispute could be passed unless'a decree for refund of the sale consideration was passed in favour of the vendees which was essential for adjusting equities of the parties.
5. That the lower appellate Court has erred in holding that the suit did not suffer from misjoinder of parties and causes of action and further in not dismissing the suit on that ground.
6. That the lower appellate Court committed an error in trying the suit without deciding the question of Court-fee under Section 11 of the Rajasthan Court-fees Act and in not dismissing the suit on the ground that proper Court-fee was not paid.
7. That the lower appellate Court has erred in holding that the suit was triable by a civil court.
10. During the course of arguments it is frankly admitted by the learned counsel for the appellant that none of the questions of law formulated on 28-8-1980 can said to be a substantial question of law within the ambit of amended Section 100, C.P.C. The learned counsel admitted that as a matter of fact questions Nos. I, 2. 3 and 4 are basically concluded by concurrent finding of fact which cannot be gone into under Section 100, C.P.C. However, nothing has been brought to my notice during the course of arguments that the finding of fact recorded by subordinate Courts are perverse to such an extent that a reasonable and prudent man could not arrive on such conclusions, therefore, questions Nos. I, 2, 3 and 4 cannot be said to be substantial questions involved in the present second appeal.
11. As regards the questions Nos. 5, 6 and 7, these questions speak about mere techni-calities. In my considered opinion, once the suit is decided on merits by two subordinate Courts, the appellants cannot be allowed 10 raise technical pleas in second appeal with emphasis that these technicalities should be treated to be substantial questions of law. The question of misjoinder of parties and multi-feriousness of causes of action cannot be permitted to be raised under Section 100, C.P.C. treating it to be a substantial question of law. In my opinion if the technicalities are pitted against substantial justice then the Court of law cannot allow the substantial justice either to escape or to slide on mere technicalities. The Courts of appeal are respected by the people not because of the fact that it can legalise injustice but because the Courts impart substantial justice between the parties. Hence, these questions of technicalities also cannot be treated to be substantial questions of law.
12. As regards question No. 6 about payment of Court-fees, 1 am of the opinion that the questions relating to payment of Court-fee is a matter between plaintiff and the State Government and as such State Government can said to be an aggrieved party in payment of Court-fees. If in a particular suit Court-fee is found to be insufficient, defendant cannot be allowed to question the insufficiency of Court-fee either before the trial Court or before the higher Courts. It is hereby ruled that defendant-appellants have no right to question the sufficiency of Court-fee paid by the plaintiff and it is only the State of Rajasthan who alone can be permitted to question the insufficiency of Court-fee, not the defendant-appellants. In my considered opinion, payment of Court-fee is to be treated a lis between the plaintiff and the State of Rajasthan alone and by no stretch of imagination the defendants can said to be aggrieved unless it touches the pecuniary jurisdiction of the Court. Nothing has been brought to my notice that pecuniary jurisdiction of learned Civil Judge is involved in the present second appeal, therefore, the question of sufficiency of Court-fee cannot be allowed to be raised in second appeal by the learned counsel for the defendant-appellants.
13. As regards the question No. 7, formulated on 28-8-80, it is sufficient to say that wherever a registered sale deed is sought to be cancelled, only civil court has jurisdiction and both the Courts below have rightly came to the conclusion that civil Court has jurisdiction in the present suit.
14. In the present second appeal as I have said earlier, the main relief is the cancellation of three 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 defendantrespondent 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.
15. At this stage, the learned counsel prays that the appellants in the present set of circumstances be extended the benefit of proviso of Sub-section (5) of Section 100, C.P.C. where it is clearly provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear for the reasons to be recorded on any other substantial questions of law which is not formulated by the Court if it is satisfied that the case involves such questions.
16. The learned counsel, Shri D. R. Bhandari submits that in the present second appeal, the interpretation of Section 14, Section 40, Section 41 and Section 42 of Rajasthan Tenancy Act, 1955 are clearly involved, which can be treated to be a substantial questions of law. According to the learned counsel for the appellants, assuming for the sake of arguments that the finding recorded by both the Courts below are correct, even then if the aforesaid sections of Rajasthan Tenancy Act, 1955 are pressed into service, the result would be otherwise. The learned counsel further submits that there is ho authoritative decision of this Court interpreting the aforesaid sections, and if he is not permitted to raise this new substantial ques-tions of law, the appellants will suffer an irreparable loss and injury inasmuch as the lis between the defendant-appellants and plaintiff-respondents are being finally adjudicated for all time to come and they will not be entitled to raise this question in other proceedings.
17. I have given my thoughtful consideration to the aforesaid arguments advanced by the learned counsel for the appellants and I am fully satisfied that if new plea sought to be raised by him is not allowed then appellants will not be able to raise these points in any subsequent suit inasmuch as raising of these new pleas will be barred by the principle of constructive res judicata.
18-19. Ordinarily, a question of law which is not dependent upon examination of evidence and requires no fresh investigation of facts can be allowed to be raised as a new substantial questions of law at the time of hearing. The learned counsel for the plaintiff respondent could not be able to bring to my notice that the question which is sought to be argued as a new substantial question of law at the time of hearing by the learned counsel for the appellant is not a debatable question and the present debatable question has never been raised earlier before this Court, therefore, 1 permit the learned counsel to raise the aforesaid new substantial question of law which was not formulated by this Court on 28-8-1980. In order to appreciate the argument raised by the learned counsel by the appellants, the relevant Sections 14, 40, 41 and 42 of Rajasthan Tenancy Act, 1955 are reproduced below in extenso.
14. Classes of tenants -- For the purposes of this Act, there shall be the following classes of tenants, namely :--
(a) Khatedar tenants.
(aa) Maliks and,
(b) Tenants of Khudkasht, and
(c) Ghair Khatedar tenants.
XXX XX XXX XX
40. Succession to tenants-
When a tenant dies intestate, his interest in his holding shall devolve in accordance with the personal law to which he was subject at the time of his death.
XXX XX XXX XX
41. Transferability of Khatedar's interest--The interest of a Khatedar's tenant shall be transferable otherwise by way of sub-lease; subject to the conditions specified in Sections 42 and 43.
XXX XX XXX XX
42. General restrictions on sale, gift and bequest-
The sale, gift or bequest by a Khatedar tenant of his interest in the whole or part of his holding shall be void, if
(a) it is riot of a survey number except when the area of the survey number so sold, gifted or bequeathed is in excess of the minimum area prescribed for the purpose of Sub-section (1) of Section 53, in which" case also the area not transferred shall not be fragment:
Provided that this restriction shall not apply if the area so transferred becomes merged into a contiguous survey number :
Provided further that this restriction shall not apply if the sale, gift or bequest is of the entire interest of a tenant in the survey number.
xxx xx xxx xx From the interpretation of the aforesaid Sections of the Rajasthan Tenancy Act, 1955 it is easily deducible that according to the finding recorded by both the Courts below, the defendant Uda, transferor is a Khatedar within the meaning of Section I4(a) of the aforesaid Act. Secondly, from a bare perusal of Section 40 of the aforesaid Act it leads towards an irresistible conclusion that when a tenant dies intestate, his interest in his holding shall devolve in accordance with the personal law to which he was subject at the time of his death. The aforesaid Section 40 of the Rajasthan Tenancy Act is also attracted in the present second appeal in view of the concurrent finding recorded by both the Courts below, that the land in dispute is ancestral agricultural land, therefore, according to Hindu Personal Law Bhagwana plaintiff-respondent No. 1 is entitled to become co-sharer the moment he was born in the family of Uda defendant-respondent No. 3. The interpretation of Section 41 of the Rajasthan Tenancy Act quoted above goes a long way to prove that the interest of Khatedar tenant Uda is transferable otherwise than by way of sub-lease subject to conditions specified in Sections 42 and 43. Therefore, it goes without saying that defendant-respondent No. 3 Uda being Khatedar tenant has transferable rights to execute the aforesaid three sale deeds mentioned in preceding paragraphs. A perusal of Section 42 of the Rajasthan Tenancy Act quoted above which is relevant for adjudicating the present second appeal prescribed under second proviso to this section that this section shall not apply if the sale is of entire interest of the tenant in the survey number. In the present second appeal, it is not disputed by the learned counsel for the plaintiff-respondents that defendant-respondent No. 3 Uda had executed the aforesaid sale deed* in favour of the defendant-appellants and defendant-respondent No. 4, of his entire interest in the aforesaid survey number.
20. The main ihrust ol' the argument of the learned counsel for the plaintiff-respondents Nos. 1 and 2 is that one co-sharer or co-tenant cannot execute a registered sale deed of the land held by other co-tenant without the consent of other co-sharer or co-tenants and if Uda defendant-respondent No. 3 did so, the possession of purchasers i.e. defendant-appellants and defendant-respondent No. 4 would be that of trespasser. Therefore, both the Courts have rightly decreed the suit filed by plaintiff-respondents Nos. I and 2. The aforesaid argument advanced by Shri B. N. Kalla counsel for the plaintiff-respondents Nos. 1 and 2 is not acceptable to me inasmuch as there is no statutory provision according to which the co-sharer and co-tenant must act together. In sum, no statutory provisions have been brought to my notice by the counsel for the plaintiff-respondents Nos. 1 and 2 which mandates that a person holding a share in agricultural land must get the permission of other co-sharer to execute a sale deed of his share. In my opinion, the share owned by a person who is a co-sharer or co-tenant belongs to him alone and his other co-sharer cannot said to have interest in it. The interest in the agricultural land is common but the interest in each share is individual. When the co-sharers and co-tenants are not concerned with each other's share nor they have any right, title and interest in the share of the other co-sharers, there can be no question of one co-sharer obtaining permission for transferring his share,
21. It is well to remember that a co-sharer cannot transfer a particular piece of land claiming the same respecting to his share. I am not impressed with the argument that a co-sharer or a co-tenant cannot be permitted to transfer his entire interest in agricultural land, unless there is division of holding by metes and bounds. In my humble opinion, it is not necessary and it cannot be said to be a condition precedent for executing a sale deed by a co-sharer or a co-tenant to the extent of his share. As a matter of fact, if a share in agricultural land is transferred by a co-sharer the buyer of such co-tenant or co-sharer steps into the shoes of their sellers and becomes a co-tenant. Therefore, if there is any friction or controversy between the buyer and the remaining co-sharer or co-tenants, they can always resort to initiate the proceedings for division of the agricultural land. I am fortified in taking the aforesaid view from the interpretation of Section 41 of Rajasthan Tenancy Act, 1955 which provides that interest of a Khatedar tenant shall be transferable otherwise than by way of sub-lease subject to the conditions as prescribed in Sections 42 and 43. Admittedly, defendant-respondent Uda, transferor has not executed any sub-lease in favour of the defendant-appellants and defendant-respondent No. 4 but he had executed three registered sale deeds of his entire share, therefore, it cannot be said to be illegal by any stretch of imagination. In my humble opinion, Section 41 itself makes it clear that an undivided interest of a Khatedar tenant is transferable subject to restriction on the same as contained in Section 42 of the Act and the sale is void if it is not of the survey number except when the area of survey is in excess of the minimum area prescribed for the purpose by Sections 41 and 42.
22. However, to this restriction also there is proviso second which provides that the restriction contained in Section 42(a) shal! not apply if the same is of the entire interest of a tenant in the survey number.
23. A joint reading of Section 41 and Section 42(a) will clearly leads to same irresistible conclusion that a co-tenant or co-sharer can transfer his entire interest even in a survey number. Thus, I am of the opinion that defendant-respondent No. 3 Uda had full authority to execute the aforesaid three sale deeds in favour of the defendant-appellants and defendant-respondent No. 4 to the extent of his share but it is true that the defendant-respondent-defendant No. 3 Uda had no authority to execute sale deed to the extent of the share of the plaintiff-respondent No. I in the suit lands. Thus, the three sale deeds executed by respondent No. 3 Uda about the disputed agricultural land to the extent of his share were not void as held by two subordinate Courts. As a matter of fact, the three sale deeds executed by Uda would be valid to the extent of his share even if concurrent finding of fact of the Courts below are accepted to be true to the effect that the land in dispute is ancestral acquisition and personal law is applicable.
24. In view of the foregoing discussions, | the only relief that can be granted to the plaintiff-respondent No. 1 in the case can be that of a declaration that the sale deeds of disputed agricultural land filed by the plaintiffs against the defendants are void and ineffective as against the plaintiff-respondent No. 1 to the extent of his share and the plaintiff-respondent No. 1 would be at liberty to sue for division of holding by metes and bounds under Rajasthan Tenancy Act, 1955.
25. Consequently, I allow the instant second appeal partly and the decree passed by both the Courts below are modified in this manner that it is declared that the aforesaid sale deeds executed by defendant-respondent No. 3, Uda in favour of defendant-appellants Nos. I to 3 and defendant-respondent 4 about the disputed agricultural land are void to the extent of the share of plaintiff-respondent No. 1 Bhagwana and the sale deeds executed by defendant-respondent No. 3 Uda without permission of plaintiff-respondent No. 1 is valid to the extent of his share. It shall be left open to plaintiff-respondent No. 1 to sue the defendant-appellants Nos. 1 to 3 and defendant-respondent No. 4 for division of holding by metes and bounds under Rajasthan Tenancy Act, 1955 in accordance with law. The suit of the plaintiff for ejectment and restoration of possession is hereby dismissed and the decree passed by learned District Judge is hereby modified. Let a decree be prepared accordingly.
26. However, in the peculiar circumstances of the case, both the parties will bear their own costs throughout.
27. Before parting with the judgment. I would like to observe that various tenancy laws are in existence in State of Rajasthan which required to be consolidated in order to avoid multiplicity of litigation by poor peasantry of the State. It is well to remember that the people of the Rajasthan are to be ruled and their affairs are to be managed by their elected representatives yet the Courts being constitutional functionaries cannot be treated to be silent spectator of inconvenience suffered by the poor peasantry of Rajasthan who are socially, educationally and economically in disadvantaged position.
28. Even the Rajasthan Tenancy Act, 1955 is required to be reframed by the State Legislature to suit the social necessity and social opinion of coming 21st Century. The provisions of Rajasthan Tenancy Act, 1955 are required to be moulded and shaped to meet the needs and opinion of today. In modern time, the applicability of personal law to the agricultural land under Section 40 of the Rajasthan Tenancy Act is out-dated. In fact, the State Legislature if thinks so, may amend the Rajasthan Tenancy Act giving a separate line of succession applicable to Hindus, Muslims and Christians etc. residing within the State. I hope and trust that State Legislature will think over the anomaly created by Section 40 of the Rajasthan Tenancy Act, 1955 whereby extending the concept of personal law daughters are heirs and entitled to succession under the Tenancy Act. The fact that such daughters even after marriage continue to remain co-tenant with other heirs of their parental side. The applicability of Section 40 of the Rajasthan Tenancy Act extending applicability of personal law is to be read with the Hindu Succession Act, 1955 passed by Parliament according to which if after marriage a daughter becomes widow, she is again entitled to inherit as a widow, therefore, there are two successions available to daughters here in Rajasthan, due to which poor farmers are burdened by various litigations in various forums prescribed in various enactments. In other States unmarried daughters are entitled to inherit agricultural land but soon after their marriage the agricultural land inherited by them revert back to the heirs of last male tenant. In other States a separate line of succession is given under the tenancy law and applicability of personal law is treated to be foreign for agricultural land. In separate line of succession, State Legislature under tenancy law may provide preferential heirs keeping in view the nearness of blood relation of the deceased tenure-holders.
Aforesaid gap disclosed in preceding paragraphs of my judgment, remedy lies in amending and consolidating Rajasthan Tenancy Act, 1955 by State Legislature moulding and shaping the Land Reforms to meet the needs and opinion of today.