Rajasthan High Court - Jodhpur
Ambalal vs Ram Chandra on 2 February, 2022
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 12254/2019
Ambalal S/o Narayan Lal Ji Kumawat, since deceased through his
legal representative:
1/1 Lokesh s/o Inder Lal Kumawat, r/o Pula, Tehsil Badgaon,
District Udaipur.
----Petitioner
Versus
1. Ram Chandra S/o Narayan Lal Ji Kumawat, Resident Of
Dagliyon-Ki-Magri (Pula), Girwa, Udaipur. At Present
Residing At Village And Tehsil Badgaon, District Udaipur.
2. State Of Rajasthan, Through Tehsildar, Badgaon, Udaipur.
3. Assistant Collector-Cum-Sub Divisional Officer, Girwa,
Udaipur.
4. The Board Of Revenue, Rajasthan, Ajmer.
----Respondents
For Petitioner(s) : Mr. Sanjay Nahar on VC.
For Respondent(s) : Mr. Vikram Sharma for
Mr. Sajjan Singh Rajpurohit
(on VC).
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment 02/02/2022
1. In wake of instant surge in COVID-19 cases and spread of its highly infectious Omicron variant, lawyers have been advised to refrain from coming to the Courts.
2. This writ petition has been preferred claiming the following reliefs:
"(i) the impugned Order dated 08.02.2019 (Annex.9) passed by the Board of Revenue, Ajmer allowing the (Downloaded on 09/02/2022 at 08:14:34 PM) (2 of 25) [CW-12254/2019] Revision Petition filed by the respondent no.1 may kindly be quashed and set aside.
(ii) The Order dated 26.10.2015 (Annex.7) passed by the learned Trial Court may kindly be upheld and the suit filed by the plaintiff may kindly be taken on record to its original number."
3. As the pleaded facts as well as the record of the case would reveal, the bone of contention in the present case is the recorded joint khatedari rights of the real brothers i.e. plaintiff/petitioner and defendant/respondent No.1, claimed to be accruing in relation to an agricultural land (admeasuring 0.6200 hectare) comprising Araji No.1458 situated in Village Bhuvana, Tehsil Girwa, District Udaipur (now said to be situated in Village Badgaon, District Udaipur). Such rights were also subject matter of a suit instituted before the Court of Assistant Collector (Fast Track), Girwa, Udaipur, under Sections 88, 188 & 53 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as 'Act of 1955') by the plaintiff/ petitioner seeking declaration, partition and permanent injunction.
4. The genesis of the present dispute is traceable to the decision of the plaintiff/petitioner and defendant/respondent No.1 to sell the land in question, wherein they both were having equal share, to one Ganesh Lal Mehta and Chandra Singh Mehta; but, as averred in the writ petition, the same could not have been done, on count of the fact that fragmentation of the land in question for the purpose of its sale was not legally permissible at the relevant time.
4.1 It was also averred in the writ petition that for the purpose of effecting such sale, while ruling out the possibility of any illegal fragmentation, the plaintiff/petitioner and the defendant/respondent No.1 verbally decided that the (Downloaded on 09/02/2022 at 08:14:34 PM) (3 of 25) [CW-12254/2019] plaintiff/petitioner would sell the land of his share to the aforementioned persons and the consideration that would be received out of such sale would be equally divided between them; Consequent whereupon, both the parties shall have equal share in the remaining 0.3100 hectare land (under the khatedari of defendant/respondent No.1), as mutually agreed between them. Thereafter, the sale was accordingly effected and the sale consideration was received and shared equally between the parties.
5. Learned counsel for the plaintiff/petitioner submits that the recitations of the aforementioned verbal agreement were also reflected in the subsequent agreement dated 30.01.2001 entered into between the plaintiff/petitioner and the defendant/respondent No.1 in relation to their respective equal share in the remaining land in question.
5.1 Learned counsel for the plaintiff/petitioner also submits that despite such verbal agreement and rightful equal share in the remaining land in question (admeasuring 0.3100 hectares), the defendant/respondent No.1 was given 0.1800 hectare land, whereas plaintiff/petitioner kept only 0.1300 hectare land. As per learned counsel, the extra 0.250 hectare land was given to the defendant/respondent No.1, in lieu of a house.
6. Learned counsel for the plaintiff/petitioner further submits that despite such fairness on the part of the plaintiff/petitioner, followed by several requests made by him to the defendant/respondent No.1 to get their respective share in the remaining land in question recorded in the revenue records, the defendant/respondent No.1 never acceded to such requests. As per learned counsel, under these circumstances, the (Downloaded on 09/02/2022 at 08:14:34 PM) (4 of 25) [CW-12254/2019] plaintiff/petitioner instituted the suit in question under the provisions of the Act of 1955 in the year 2015; alongwith the said suit, an application under Section 212 of the Act of 1955 read with Order 39 Rules 1 & 2 of the Code of Civil Procedure (for short, 'CPC') for temporary injunction was also filed, seeking relief, as prayed for therein.
7. Learned counsel for the plaintiff/petitioner further submits that while the suit in question remained pending and the matter rested thereat, the defendant/respondent No.1 preferred an application under Order 7 Rule 11 CPC seeking dismissal of the suit in question being not maintainable as well as barred by limitation, and also for other reasons as mentioned in the said application. The sole premise of filing such application was the aforementioned agreement dated 30.01.2001.
8. Learned counsel for the plaintiff/petitioner also submits that vide order dated 26.10.2015, the learned trial court dismissed the aforementioned application preferred under Order 7 Rule 11 CPC. Learned counsel also submits that against the said order dated 26.10.2015, the defendant/respondent No.1 preferred a revision petition before the learned Board of Revenue for Rajasthan at Ajmer, which was allowed vide order dated 08.02.2019, while setting aside the order passed by the Assistant Collector; aggrieved by such determination made by the learned Board of Revenue, the present petition has been preferred, claiming the aforementioned reliefs.
9. Learned counsel for the plaintiff/petitioner submits that the application preferred by the defendant/respondent No.1 was not maintainable, as the suit in question was instituted seeking declaration and partition on the basis of an agreement dated (Downloaded on 09/02/2022 at 08:14:34 PM) (5 of 25) [CW-12254/2019] 30.01.2001 mutually entered into between the parties, and the facts surrounding such an agreement ought to be tested during the course of trial, and thus, at the preliminary stage, the suit was not liable to be rejected under Order 7 Rule 11 CPC, as rightly held by the learned trial court; more particularly, in view of the fact that the agreement dated 30.01.2001 was an agreement entered into by mutual understanding between the parties, who are admittedly the real brothers, and not the sale agreement, wherefrom any right, title or interest accrues.
10. Learned counsel for the plaintiff/petitioner also submits that the learned trial court vide the order dated 26.10.2015 has rightly held that the subject matter of the suit was an agricultural land and was filed on the basis of the mutual agreement, and thus, the revenue court was well within its jurisdiction to hear and decide the same.
11. Learned counsel for the plaintiff/petitioner also drew the attention of this Court towards the fact that earlier a suit was filed by the defendant/respondent No.1 herein in the year 1995, seeking partition and permanent injunction, which was decided vide judgment dated 24.04.2001 on the basis of compromise arrived at between the parties on 13.02.2001; however, since the compromise pertaining to Araji No.1458 (land in question) had already happened on 30.01.2001 itself, therefore, the same was not reflected in the said judgment dated 24.04.2001.
12. Learned counsel for the plaintiff/petitioner however, submits that the learned Board of Revenue, while passing the impugned order dated 08.02.2019, has even entered into the aspects of the case, which can only be adjudicated during the course of trial, which stage was yet to be crossed in the suit in question. (Downloaded on 09/02/2022 at 08:14:34 PM)
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13. Learned counsel for the plaintiff/petitioner also submits that the learned Board of Revenue, while passing the impugned order, has also not taken into consideration the fact that despite the agreement dated 30.01.2001, the defendant/respondent No.1 has failed to abide by the same. Learned counsel also submits that the learned Board of Revenue has also taken the mutual agreement dated 30.01.2001 to be a sale agreement, despite the fact that the agreement dated 30.01.2001 did not have any ingredient of an agreement to sale.
14. Contrario sensu, learned counsel for the defendant/respondent No.1 submits that irrespective of the basis of the suit in question, the said suit was for specific performance, which could have been filed before the civil court only, more particularly, in light of the fact that the suit in question was barred by limitation, as the same was filed after a delay of 14 years from the date of alleged agreement dated 30.01.2001. Thus, as per learned counsel, the revenue court was not having any jurisdiction to hear the suit in question.
15. Learned counsel for the defendant/respondent No.1 tried to thwart the alleged agreement dated 30.01.2001 on the ground of the same being forged and concocted, as the original of the same was never brought on record by the plaintiff/petitioner at any stage of the litigation.
16. Learned counsel for the defendant/respondent No.1 further submits that the suit filed by the defendant/respondent No.1, which was decided by the SDO, Girwa vide judgment dated 24.04.2001 did not contain any description of the land of khasra No.1458, as the plaintiff/petitioner had already sold his part of the (Downloaded on 09/02/2022 at 08:14:34 PM) (7 of 25) [CW-12254/2019] land to Ganesh Lal Mehta and Chandra Singh Mehta in the year 1988.
17. Learned counsel for the defendant/respondent No.1 also submits that despite the aforesaid factual and admitted aspects, the plaintiff/petitioner was sitting tied over his alleged khatedari rights in respect of the land in question, and it was only after a delay of 14 years, that he has filed the suit in question, that too, before the forum (revenue court), which was lacking jurisdiction to hear the same on count of the fact that the same was barred by limitation. Learned counsel thus, submits that the said error of law and jurisdiction was rightly rectified and made good vide the impugned order passed by the learned Board of Revenue.
18. Learned counsel for the defendant/respondent No.1 also submits that as per the provisions of CPC, the photocopy of the alleged agreement dated 30.01.2001 was inadmissible in evidence; further since the nature of the alleged agreement clearly reflects that the same cannot be made basis to acquire the khatedari rights, therefore, no suit can be filed before the revenue court, as such rights can only be determined by the civil court, which has the jurisdiction to adjudicate the suit based on the like agreement (alleged agreement dated 30.01.2001 in question), and while doing so, even the civil court cannot grant any relief to the plaintiff in such a suit, if the same is barred by limitation.
19. Learned counsel for the defendant/respondent No.1 also submits that the plaintiff/petitioner has concealed the factum of judicial and quasi judicial proceedings launched pertaining to the present dispute and the orders drawn therein, and thus, he has no right to maintain the suit in question. Moreover, as per learned counsel, the exclusion of the disputed khasra for partition was not (Downloaded on 09/02/2022 at 08:14:34 PM) (8 of 25) [CW-12254/2019] based on the agreement dated 30.01.2001, nor the said agreement was referred to exclude the disputed land, and thus, no cause of action did arise to the plaintiff/petitioner to maintain the suit in question.
20. Learned counsel for the defendant/respondent No.1 further submits that it is a settled position of law that whenever any unregistered agreement is made the basis for claiming any khatedari rights, which in the present case is the alleged agreement dated 30.01.2001, such suit is liable to be rejected under Order 7 Rule 11 CPC, even at a preliminary stage. Order 7 Rule 11 CPC reads as under:
"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 under-valued, and the plaintiff, on being required by the Court to so 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 plaintiff 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 (Downloaded on 09/02/2022 at 08:14:34 PM) (9 of 25) [CW-12254/2019] plaintiff was prevented by any cause of exceptional nature from 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."
21. To substantiate his submissions, learned counsel for the defendant/respondent No.1 relied upon the judgment rendered by a Division Bench of this Hon'ble Court in Madhupuri Vs. The Board of Revenue for Rajasthan at Ajmer, reported in 1980 RRD 646, relevant portion of which reads as under:
"4. The principal reason given by the Board of Revenue is that the suit was based on khatedari rights and the plaintiff claims title through a sale deed, which was unregistered and never came on the record and that being so, it could not pass any valid title in favour of the plaintiff or his father.
15. Since the suit is under Section 188 of the Rajasthsn Tenancy Act, the plaintiff's proves himself to be a tenant under the provisions of the Rajasthan Tenancy Act is the sine qua non of the plaintiff's right to get a decree We are, therefore, of the opinion that the plaintiff has failed to prove that he is a Khetedar and he has further failed to prove that he is a tenant of any other kind which may be recognised as tenant under the provisions of the Rajasthan Tenancy Act and, therefore, the judgment of the Board of Revenue is perfectly justified both on facts and in law."
22. Learned counsel for the defendant/respondent No.1 also relied upon the judgment rendered by this Hon'ble Court at Jaipur Bench in Late Dahnpat Kanwar & Ors. Vs. Smt. Shanti & (Downloaded on 09/02/2022 at 08:14:34 PM) (10 of 25) [CW-12254/2019] Ors., reported in 2019(4) WLN 134, relevant portion of which reads as under:
"10. The prayer clause of the suit instituted by the plaintiff- petitioner would reflect that the plaintiff- petitioner has neither prayed for any declaration nor has disclosed the cause of action. But, in fact, the suit instituted by the plaintiff-petitioner is for possession and such a prayer is not cleverly prayed. For in that case, the suit would be clearly barred by limitation.
11. Be that as it may, if on consideration of the pleadings of the plaint, it is found that a suit is barred by limitation, the same is liable to be rejected in exercise of powers under Order 7 Rule 11(d) CPC. At this juncture, it will be profitable to take note of the text of period of limitation prescribed under Article 56 to 59 of the Limitation Act, 1963, which reads thus:
Description of Period of Time from which
suit Limitation period begins to
run
Part III - Suits Relating to Declarations 56 To declare the Three Years When the issue forgery of an or registration instrument becomes known issued or to the plaintiff.
registered.
57 To obtain a Three Years When the
declaration that alleged adoption
an alleged becomes known
adoption is to the plaintiff.
invalid, or never,
in fact, took
place.
58. To obtain any Three Years When the right
other to sue first
declaration. accrues.
Part IV - Suits relating to Decrees and Instruments
59. To cancel or set Three years When the facts aside an entitling the instrument or plaintiff to have decree or for the the instrument rescission of a of decree contract. cancelled or set aside or the contract rescinded first (Downloaded on 09/02/2022 at 08:14:34 PM) (11 of 25) [CW-12254/2019] becomes known to him.
12. From a glance of the limitation as reflected from the statutory provisions of the Act of 1963, it is evident that the claim of the plaintiff-petitioner was clearly barred by limitation. And even the reasonable time as regards limitation would not be beyond 12 years for after 12 years, adverse possession can be pleaded. That apart, the suit is hit by Section 42 of Specfic Relief Act, as has been held in the case of Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar Vs. Chandran and ors.: (2017) 3 SCC 702, para 34, which reads thus:
"34. In the present case, the Plaintiff having been found not to be in possession and having only sought for declaratory reliefs, the suit was clearly not maintainable and has rightly been dismissed by the trial court. In this context the reference is made to the judgment of this Court reported in Ram Saran and Anr. v. Smt. Ganga Devi, wherein para 1 & 4 following was stated:
1. This is a Plaintiffs' appeal by special leave. Ram Saran and Raghubir Saran, the Plaintiffs are brothers. They jointly owned suit property with Chhabili Kuer widow of Lalita Prasad. After the death of Chhabili Kuer on February 8, 1971, Ganga Devi the Defendant in the suit came forward as the legal representative of Chhabili Kuer and got the mutation effected in her name in the place of the deceased Chhabili Kuer. In 1958, the Plaintiffs brought this suit for a declaration that they are the sole owners of the suit properties. They did not claim possession either of the entire or even any portion of the suit properties.
4. We are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act. As found (Downloaded on 09/02/2022 at 08:14:34 PM) (12 of 25) [CW-12254/2019] by the fact-finding Courts, Ganga Devi is in possession of some of the suit properties. The Plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable."
6.7 In the case of Madanuri Sri Rama Chandra Murthy (supra), this Court has observed and held as under:
7. The plaint can be rejected Under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power Under Order 7 Rule 11 Code of Civil Procedure can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power Under Order 7 Rule 11 Code of Civil Procedure. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated Under Order 7 Rule 11 Code of Civil Procedure to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the Defendant are wholly immaterial while considering the prayer of the Defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not (Downloaded on 09/02/2022 at 08:14:34 PM) (13 of 25) [CW-12254/2019] disclose cause of action, the application for rejection of plaint can be entertained and the power Under Order 7 Rule 11 Code of Civil Procedure can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.
22. Applying the principles deducible from the opinions aforesaid to the factual matrix of the case at hand, it is evident that the revenue suit proceedings were instituted by the plaintiff-petitioner after a delay of 53 years with clever drafting not seeking declaration and that would lead to the inescapable conclusion that the suit was clearly barred by limitation. Hence, the Courts below committed no illegality much less material illegality so as to call for any interference by this Court in exercise of writ jurisdiction under Article 227 of the Constitution of India."
23. Learned counsel for the defendants/respondent No.1 further relied upon the judgment rendered by this Hon'ble Court at Jaipur Bench in Dr. Abdul Wasi Vs. Abdul Kadir & Ors., reported in 2015(2) WLC 207, relevant portion whereof reads as under:
"5. The Apex Court considering other earlier judgments observed in para No.12, as under :-
"12. It is also useful to refer the judgment in T. Arivandandam v. T.V. Satyapal, wherein while considering the very same provision, i.e. Order 7 Rule 11 and the duty of the trial Court in considering such application, this Court has reminded the trial Judges with the following observation: (SCC p.470, para 5) "5. ...The learned Munsif must remember that if on a meaningful - not formal --- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise (Downloaded on 09/02/2022 at 08:14:34 PM) (14 of 25) [CW-12254/2019] his power under Order 7, Rule 11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action nip it in the bud at the first hearing by examining the party searchingly under Order 10, C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Chapter XI) and must be triggered against them."
It is clear that if the allegations are vexatious and meritless and not disclosing a clear right or material(s) to sue, it is the duty of the trial Judge to exercise his power under Order 7 Rule 11. If clever drafting has created the illusion of a cause of action as observed by Krishna Iyer J., in the above referred decision, it should be nipped in the bud at the first hearing by examining the parties under Order 10 of the Code.
7. From the afore stated proceedings, it clearly transpires that the appellant/plaintiff had filed the suits one after other, seeking almost the same relief of partition and injunction in respect of the suit property, suppressing the filing of the other suit proceedings. Such a conduct on the part of the plaintiff is nothing but misuse and abuse of process of law. As rightly relied upon the various decisions of Apex Court by the learned counsels for the respondents, any suppression of material fact by litigant, disqualifies such litigant from obtaining any relief. The Apex Court in Raj Narain Sarin (Dead) through LRs. & Ors. v. Laxmi Devi & Ors., 2002 (10) SCC 501 , upheld the order passed by the Trial Court rejecting the plaint under Order 7, Rule 11 relying upon the decision in case of T.Arvandandam v. T.V. (Downloaded on 09/02/2022 at 08:14:34 PM)
(15 of 25) [CW-12254/2019] Satyapal, (1977) 4 SCC 467 , in which it was categorically laid down that if on a meaningful reading of the plaint, it manifestly appears to be vexatious and meritless, in the sense of not disclosing a clear right to sue, the Trial Court should exercise its power under Order 7, Rule 11 of CPC taking care to see that the ground mentioned therein is fulfilled, since bogus litigation ought to be shot down at the earliest stage. This Court in case of Temple of Thakur Shri Mathuradassji, Chhota Bhandar v. Shri Kanhaiyalal & Ors., 2008(2) RLW 1390 has held to the effect that if the suit is filed by abusing the process of the Court and cannot be dismissed under Order 7, Rule 11 of CPC, then the Court is not helpless and can accordingly invoke the powers under Section 151 of CPC and can dismiss the suit under Section 151 of CPC.
11. In that view of the matter, the Court is of the opinion that the plaint of the appellant/plaintiff was liable to be rejected under the provisions contained in Order 7, Rule 11 (a) of CPC. Though it is true that the Trial Court has rejected the plaint on the ground that the suit of the plaintiff was barred under Order 9, Rule 9 and Order 2, Rule 2 , the said reasonings could not be vindicated. Neither the provisions contained in Order 9, Rule 9 , nor in Order 2, Rule 2 would be applicable to the facts of the present case, and to that extent the order passed by the Trial Court is not correct. Nonetheless, the plaint is certainly liable to be rejected under Order 7, Rule 11 (a) on the plaintiffs failing to disclose cause of action. Hence, while not agreeing with the reasons given by the Trial Court, the Court agrees to the conclusion that the plaint of the appellant/plaintiff was liable to be rejected under Order 7, Rule 11 of CPC."
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24. Learned counsel for the defendant/respondent No.1 also relied upon the judgment rendered by this Hon'ble Court in Durgadan Vs. Devidan, reported in RLW 1974 Pg.296, relevant portion of which reads as under:
"16. Now I may turn to the first contention. Section 207 of the Raj. Tenancy Act, 1955, lays down what suits & applications are exclusively triable by a revenue court. It provides:
Section 207. Suit and applications cognizable by revenue court only:
(1) All suits and applications of the nature specified in the Third Schedule shall be heard and determined by a revenue court.
(2) No court other than a revenue court shall take cognizance of any such suit or application based on a cause of action in respect of which any relief could be obtained by means of any such suit or application.
Explanation-If the cause of action is one in respect of which relief might be granted by the revenue court, it is immaterial that the relief asked for from the civil court is greater than, or additional to, or is not identical with, that which the revenue court could have granted.
17. In construing a similar provision in the statute that was in force before the Rajasthan Tenancy Act, 1955, Modi, J., observed in Chandmal v. Dawar 1954 RLW 184 as follows:
I am of opinion that in order to determine whether a suit is triable by a revenue court, or by a civil court, certain basic principles must be borne in mind. One such principle is that it should be readily inferred that the jurisdiction of the civil courts is barred unless such an inference can be raised by an express provision of law or by necessary implication. Another thing which (Downloaded on 09/02/2022 at 08:14:34 PM) (17 of 25) [CW-12254/2019] should be borne in mind is that the question of jurisdiction must be initially determined by the allegation made in the plaint Thus, whether a suit for possession of land is cognizable by a civil court or not depends entirely upon the frame of the suit and the allegations contained in the plaint. A further principle which should be kept in view is what is the substance of the suit and what is its main object, or, in other words, what is the real contest between the parties. In order to determine this the principle is well settled that one must look to the substance of the plaint and not merely to its outward form. If this is not done, it is obvious that it may be open to exclusiveness of jurisdiction. It is of course to be remembered that care should be taken not to introduce anything into the plaint which may not really be found there o: which may be foreign to its main purpose.
In a later case in Asala v Narain 1963 RLW 323 he again observed as follows:
Now, it has been laid down in a number of decisions of this Court to many of which I have been a party, that the question of jurisdiction namely, whether a suit is exclusively triable by a revenue court or civil courts can take cognizance of it, has to be decided on the allegations made in the plaint taken in their essence. The guiding test according to these decisions, put in a nutshell is : what is the true nature of the suit, or what is the object as disclosed by the allegations contained in the plaint? If the answer to these questions is that the plaintiff seeks the establishment of reliefs which essentially fall within the scope of the Tenancy Act, that is, the Act of 1955, with which we are concerned here, then the conclusion as to the proper jurisdiction of such a suit is and must be that it is one which is exclusively triable by revenue court, and that the jurisdiction of the civil courts to try and dispose of such suits is wholly barred. That is the gist (Downloaded on 09/02/2022 at 08:14:34 PM) (18 of 25) [CW-12254/2019] of Section 207 of the said Act which lays down that all the suits and applications "of the nature:" specified in the Third Schedule thereof shall be heard and and determined by a revenue court, and here I would underline the phrase ''of the nature" occurring; in this section if only to emphasize that the intention of the Legislature in using the phrase definitely seems to be that suits which not only squarely fall within the four walls of the various items specified in the Third Schedule but also those which may not so fall but which may partake of the nature thereof can be heard and determined by a revenue court only. This section further enacts that no court other than a revenue court shall take cognizance of any such suit or application or of any suit or application which is based on a cause of action in respect of which any relief could be obtained by means of any such suit or application in a revenue court. Further there is an Explanation to the section which provides that where the cause of action is one in respect of which the relief can be granted by the revenue court, that the factor that the relief asked for from the civil court is greater than or additional to, or is not identical with, that which revenue court could have granted would be of no consequence.
There was yet another case decided by Modi, J, (Shankar Lal v Dhulilal, in which he reiterated the same principles.
18. Now the first principle that one has to keep in view is that it should not be readily inferred that the jurisdiction of a civil court is barred unless such an inference can be raised by an express provision of law or by necessary implication. The second principle which should be borne in mind is that the question of jurisdiction must be initially determined by the allegations made in the plaint. The third principle is as to what the substance of the suit is and as to what is (Downloaded on 09/02/2022 at 08:14:34 PM) (19 of 25) [CW-12254/2019] its main object or in other words what is the real contest between the parties.
19. If one looks to the plaint in the case in hand it appears that it is a suit for specific performance of a contract for sale though in respect of an agricultural land. It does not contain any prayer for possession of the agricultural land as such. In this context one has, therefore, to see as to whether relief of specific performance of the contract could have been given by a revenue court. What suits and applications are triable by a revenue court, are specified in the third schedule of the Rajasthan Tenancy Act, 1955. There is, however, no serial in the schedule which makes provision for a suit or application for getting the relief of specific performance of a contract for sale in respect of an agricultural land. That being so, in my view, the civil court is not debarred from entertaining the suit for specific performance of contract for sale in respect of agricultural property.
20. Learned Counsel invited attention to a recent judgment of Lodha, J., reported as Jagan Singh v.
Chotey Lal. In that case the suit was for avoiding a sale in respect of agricultural land It was alleged that the sale was void ab initio being in contravention of Section 42 of the Rajasthan Tenancy Act, 1952, as he plaintiff was a member of Scheduled Tribe, whereas the defendant vendee was not a member of Schedule Tribe. It was prayed that the sale deed be declared void ab initio and a decree for possession of the land in dispute be granted in favour of the plaintiff Lodha, J., thought that the real contest between the parties and which was also the object of the suit, was for possession of the property. Consequently, he held that the suit was triable by a revenue court only. The case is easily distinguishable as in the present suit the relief prayed for is only for the specific performance of contract and not for possession. Even if the relief for (Downloaded on 09/02/2022 at 08:14:34 PM) (20 of 25) [CW-12254/2019] possession were taken to have been implied in the relief for specific performance then too the main and substantial relief is one for specific performance so that the plaintiff could get his legal title in the property on the registration of the sale-deed in his favour.
21. Learned Counsel also contended that the document was in every sense a sale-deed and could not be construed to be a contract of sale. He pointed out that it even contains a recital that possession had been delivered to the plaintiff and that all rights that belong to the vendor have passed on to the plaintiff vendee. Learned Counsel invited my attention to K. Santhakumari v. Suseela Devi : AIR1961AP424 and two cases of the Privy Council referred to there in, viz., Dayal Singh v. Indar Singh : AIR 1926 PC 94 and J.R.R. Skinner v. R.H. Skinner AIR 1929 PC 369. In that case it was observed:
In construing an instrument in order to decide whether it is an agreement to sell or a contract for sale the cumulative effect of all the recital contained therein and the relevant facts have to be taken into account. The mere offer to execute and register a sale deed at a later date does not take away the effect of a clear recital transferring the title and interest of the vendor to the vendee or change the character of a document from a sale to an agreement to sell. The mere use of the word agreement is not conclusive also. Observations were made with a view to deciding bow stamp duty was leviable on the document; whether on the footing that it was a contract or agreement of sale or sale itself, namely, document of conveyance. Stamp Act, is a fiscal statute and for seeing what stamp duty is leviable on a particular document or instrument one has to go by its tenor, but when its validity has to be examined as sale within the meaning of Section 54 of the Transfer of Property Act, it will have to be seen whether it was registered or not. It is only when a (Downloaded on 09/02/2022 at 08:14:34 PM) (21 of 25) [CW-12254/2019] document of sale in respect of a property exceeding of Rs. 100/- in value is registered that it becomes a sale within the meaning of Section 64 of the Transfer of Property Act. Even for a sale-deed which is yet to be registered, the stamp duty will be realisable taking it to be a sale-deed. Whether in low it will constitute a sale within the meaning of Section 54 of the Transfer of Property Act, will have to been seen in the light of whether the document is a registered one or not. Therefore, this case is of no help to the learned Counsel.
22. The Privy Council cases were considered by a Division Bench of this Court id a case reported as Sampatraj v. Pokar 1955 RLW 232. It was observed therein:
We should like to point out that so far as Skinner's case referred to above is concerned, their Lordships held the view that the document in that case was a sale deed and on that question preferred the opinion of the Subordinate Judge who had held that it was a sale deed to that of the High Court which on appeal bad differed from the conclusion of the Subordinate Judge and had held that it was an agreement for sale rather than a sale-deed. In that view it was held that the document fell within the provisions. of Section 17 of the Registration Act and, therefore, was compulsorily registrable. Though that was the main finding upon which their Lordships based their decision, they further pointed out that even an agreement for sale of immovable property would be a transaction affecting the property within the meaning of Section 49 of the Registration Act and would, if carried out, bring about a change in ownership. Reference was then made to Section 17(2)(v) which exempts from registration a document which does not itself create an interest in an immovable property but merely creates a right to obtaining another document which will do so. As the (Downloaded on 09/02/2022 at 08:14:34 PM) (22 of 25) [CW-12254/2019] view of their Lordships, however, was that the document in that case itself created an interest in an immovable property, it was held that to allow such document to be used as the foundation of the suit for specific performance was little more than an evasion of the Act. With utmost respect, we may point out that the last clause of Section 54 of the Transfer of Property Act, which we have already quoted above, was not brought to their Lordships' notice and there is no discussion in Skinner's case as to the implications thereof. It appears to us that it abolishes the English Doctrine that a contract for sale transfers an equitable estate to the purchaser. A contract for sale, where the Transfer of Property Act is in force, would, therefore, merely amount to being a document creating a right to obtain another document and would not require registration according to Section 17(2)(v) It appears to us that even before the enactment of the Transfer of Property Act, the legislature when enacting the Registration Act of 1877, did not regard an instrument for sale as itself creating an interest in land. See Clause (v) of Section 17(2) of the Act of 1908 which corresponds to Clause
(h) of Section 17 of the Act of 1877. Reference may be made in support of this view to Chunni Lal Panna Lal v.
Bomaji Mancher Modi AIR RLW 313, Shree Gopal Mullik v. Ram Churn Nuskur (1917) WLN 654, Pertab Chunder Ghose v. Mahendra Purkait 1954 RLW 184 and Hurnandan Singh v. Jawad Ali 1963 RLW 323. This state of law, however, did not find favour with their Lordships of the Privy Council in Dayal Singh's case 1963 RLW
313. That was a suit for specific performance of a contract to sell and it was held by their Lordships that where the buyer had paid earnest money and so far from refusing to accept delivery was pressing for specific performance, the agreement in itself created an interest and did not allow of the application of Section 17(2)(v), and was therefore, compulsorily registrable (Downloaded on 09/02/2022 at 08:14:34 PM) (23 of 25) [CW-12254/2019] and not having been registered was inadmissible in evidence under Section 49. This view is also supported by the dictum of their Lordship in Skinner's case already cited above. We would most respectfully point, however, that in neither of these cases there is a reference to the last clause of Section 54 of the Transfer of Property Act which provides that a contract for the sale of immovable property does not of itself create any interest in or charge on such property. Skinner's case was cited in various High Courts in India, e.g., before the Allahabad High Court in Sohan Lal v. Atal Nath, before the Madras High Court in Jagannadha v. Lakshmi Narayan : AIR1961AP424 and in Patna High Court in Abdul Latif v. Debi Mahton : AIR 1926 PC 94, and it was explained that a mere contract for the sale of immovable property, which did not create any interest in such immovable property, did not require registration. Thus in Sohanlal v. Atal Nath, Sulaiman C.J. observed that:
If a document on the face of it purports to create an interest in immovable property then it cannot be used in evidence for the purpose of showing any transaction affecting such interest. We do not think that their Lordships meant to lay down that even where a document does not purport to create an interest in immovable property it falls under Section 17 and is therefore altogether inadmissible under Section 49 for either purpose. Nor do we think their Lordships have laid down in their judgment that a mere contract for sale of immovable property purports to create interest in such property and falls within Section 17, Registration Act, so as to be compulsorily registrable. We think that the view of this Court that a mere contract for the sale of an immovable property and require registration has not been overruled by this pronouncement of their Lordships.
Thus according to the Division Bench case which is (Downloaded on 09/02/2022 at 08:14:34 PM) (24 of 25) [CW-12254/2019] binding on me, no right, title or interest in the property could be conveyed by a document if it is not in accord with Section 54 of the Transfer of Property Act. In the circumstances the document cannot be construed to be a sale for the purposes of Section 54 of the Transfer of Property Act, but would be only a contract for sale within its meaning. In R. Reddy v. Addl. Custodian, Evacuee Property : [1966]3SCR214 , cited by Learned Counsel for the respondent their Lordships of the Supreme Court, inter alia, observed that no registered sale deed was executed in the case and, therefore, the property did not pass from Abdul Aziz Khan (vendor in that case) to the appellant (vendee) even upto the time when Abdul Aziz Khan became an evacuee. Their Lordship went on to say that even though Section 53A of the Transfer of Property Act would come to the aid of the appellant in defence, yet he cannot file the suit to establish himself as owner of the property. Therefore, this contention too has no force."
25. Heard learned counsel for the parties as well as perused the record of the case, alongwith the precedent laws cited above.
26. This Court finds that the suit land in question is an agricultural land, and in case any dispute pertaining to such land arises, then the revenue court, as per the law, is well within its jurisdiction to adjudicate and decide the same.
27. The agreement dated 31.01.2001 between the plaintiff/petitioner and the defendant/respondent No.1 was a compromise agreement, and not a sale agreement; and the suit based upon compromise agreement can be lawfully heard and decided by the revenue court. As regards the delay part of the suit in question, which was based upon the agreement dated 31.01.2001 is concerned, such question can only be determined (Downloaded on 09/02/2022 at 08:14:34 PM) (25 of 25) [CW-12254/2019] during the course of trial, after consideration of the relevant facts and evidence to be led by the parties before the revenue court.
28. The aforementioned material and legal aspects have not been taken into consideration by the learned Board of Revenue, while allowing the revision petition preferred by the defendant/respondent No.1 against a well reasoned order passed by the Assistant Collector, dismissing the application preferred by the defendant/respondent No.1 under Order 7 Rule 11 CPC; rather the learned Board of Revenue has entered into the issues, which are subject matter of trial and can only be decided after consideration of the relevant facts and evidence led by the parties during such proceedings.
29. This Court is thus of the firm opinion that the learned Board of Revenue was not justified in setting aside the well considered order passed by the Assistant Collector on the application under Order 7 Rule 11 CPC preferred by the defendant/respondent No.1.
30. Thus, in light of the aforesaid observations, the present petition is allowed, and accordingly, while quashing and setting aside the order dated 08.02.2019 passed by the learned Board of Revenue, the order dated 26.10.2015 passed by the Assistant Collector (Fast Track) Girwa, Udaipur is upheld; the suit in question is directed to be taken on record to its original number.
All pending applications stand disposed of accordingly.
(DR.PUSHPENDRA SINGH BHATI),J.
2-SKant/-
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