Rajasthan High Court - Jodhpur
Smt. Sua Devi vs Sharvan Ram And Ors on 25 January, 2021
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil First Appeal No. 286/2014
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(2 of 19) [CFA-286/2014]
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For Appellant(s) : Mr. Rajesh Joshi, Sr. Advocate with
Mr. N.R.Choudhary (through V.C.)
For Respondent(s) : Mr. R.K.Thanvi, Sr.Advocate with
Mr. Narendra Thanvi (through V.C.)
Mr. Vikas Balia (through V.C.)
Mr. Sanjeet Purohit (through V.C.)
HON'BLE MR. JUSTICE ARUN BHANSALI
Judgment 25/1/2021 This appeal under Section 96 CPC is directed against the judgment dated 20/10/2014 passed by the District Judge, Jodhpur (Metro), whereby, the plaint filed by the appellant has been rejected under the provisions of Order VII Rule 11 CPC.
The suit was filed by the appellant for declaration of rights, getting the sale deed declared as void, partition and permanent injunction. It was inter alia indicated in the plaint that Rawat Ram, who was resident of village Pal, Tehsil and District, Jodhpur has died, the plaintiff and defendants No.1 to 15 are legal representatives of deceased Rawat Ram; an ancestral agricultural land was situated in Khasra No. 215 ad measuring 22 Bigha 5 Biswa at village Pal, which was recorded in the name of Rawat Ram in the revenue records. Rawat Ram had three sons - Moola Ram, Gorakh Ram and Pratap Ram @ Patta Ram. After death of Rawat Ram, the land comprised in Khasra No. 215 was recorded in (Downloaded on 25/01/2021 at 09:04:34 PM) (3 of 19) [CFA-286/2014] the name of his two sons - Gorakh Ram and Pratap Ram, which was mutated on 17/5/1971.
The said mutation was challenged by Moola Ram s/o Rawat Ram by filing appeal, which appeal was allowed on 22/5/1995, whereby, the mutation dated 17/5/1971 was cancelled and the matter was remanded back to Gram Panchayat. Pursuant to the order dated 22/5/1995, on 4/6/1995 the land was mutated in the name of Moola Ram, Gorakh Ram and as Pratap Ram had died in the meanwhile, the mutation was accepted in favour of his son Mangilal and wife Smt. Manudi. It was alleged that though the plaintiff, who was daughter of deceased Pratap Ram and was his first class heir, her name was not recorded in the revenue record. It was also claimed that the plaintiff for the first time came to know about the same on 2/4/2012 when she obtained the certified copy of Jamabandi for obtaining loan. Thereafter, the plaintiff filed an appeal against the order dated 22/5/1995 before the S.D.O. on 9/4/2012, which appeal is still pending.
It was then claimed in the plaint that on obtaining documents and on an application filed by defendant nos. 16 to18 for being impleaded as party in appeal against mutation entry dated 22/5/1995, in January, 2014 for the first time it came to the notice of the plaintiff that after the death of her father Pratap Ram and before recording of the land in the name of legal representatives of Pratap Ram, Mangilal s/o Pratap Ram and Gorakh Ram had transferred one third share ad measuring 7 Bigha 7 Biswa in Khasra No. 215 on 20/4/1995 to defendant nos. 16 to 18 without any right as at that time other legal representatives of Pratap Ram i.e. plaintiff and Pratap Ram's wife -Smt. Manudi were alive.
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(4 of 19) [CFA-286/2014] After the order was passed by the Gram Panchayat, Pal on 4/6/1995 regarding including the names of Mangilal and Smt. Manudi as legal representatives of Pratap Ram, on 29/5/1995 a correction deed was got executed including the name of Smt. Manudi in the sale deed dated 20/4/1995 executed in favour of defendant nos. 16 to 18. Whereafter, in a suit filed by Moola Ram s/o Rawat Ram seeking partition, by decree dated 5/9/2002 and order of Tehsildar dated 13/11/2002, the land of Khasra No. 215 was recorded in the name of Moola Ram ad measuring 7 Bigha 8 Biswa & 7 Biswansi as Khasra no.215/1, rest of the land ad measuring 14 Bigha 16 Biswa & 13 Biswansi was jointly recorded in the name of Gorakh Ram, Mangilal and Smt. Manudi with ½ share to Gorakh Ram and ½ share to Mangilal & Smt. Manudi. Further by mutation dated 21/2/2006 out of the land comprised in Khasra No.215 ad measuring 14 Bigha 16 Biswa & 13 Biswansi, ½ of the land was recorded in favour of Gorakh Ram and rest 7 Bigha 7 Biswa was recorded in the name of defendant nos.16 to
18. The land mutated in favour of defendant nos.16 to18 was got converted for residential purposes by order dated 16/6/2006 first in favour of UIT, Jodhpur and, thereafter, Pattas were got issued in favour of defendant nos. 16 to 18 on 18/2/2007.
Based on the above averments, it was submitted that the land comprised in Khasra No. 215 ad measuring 7 Bigha 7 Biswa, which belonged to plaintiff's father Pratap Ram was legally owned by plaintiff, Mangilal and Smt.Manudi, the same is a residential / non-agricutural land now, which was sold without any right by Mangilal and Gorakh Ram to defendant nos. 16 to 18. The mutation in favour of defendant nos. 16 to 18 and Pattas issued in their names are void against the interests of the plaintiff and as (Downloaded on 25/01/2021 at 09:04:34 PM) (5 of 19) [CFA-286/2014] the plaintiff has share to the extent of 2 Bigha 9 Biswa and 19 Biswansi, she is entitled to get the same declared void against her.
Based on the above averments, the following reliefs were claimed in the plaint:
"fMØh cgd oknhuh fo:) izfroknhx.k fuEu izdkj ls ikfjr dh tkos %& ¼v½ ;g gS fd xzke iky iVokj gYdk iky Hkq&vfHkys[k fujh{kd {ks= tks/kiqj rglhy o ftyk tks/kiqj esa fLFkr [kljk uEcj 215 ¼nkS lkS iUnzg½ dh dqy Hkwfe 14 ¼pkSng½ ch?kk 16 ¼lksyg½ fcLok 13¼rsjgk½ fcLoka"kh es oknhuh dh fgLlk Hkwfe 1@6 ¼,d@N%½ o fgLls dh Hkwfe 2 ¼nkS½ ch?kk 9 ¼ukS½ fcLok 9 ¼ukS½ fcLoka"kh gksuk ?kksf'kr dh tkosA ¼c½ ;g gS fd [kljk uEcj 215 ¼nkS lkS iUnzgk½ dh Hkwfe tks xzke iky rglhy o ftyk tks/kiqj esa fLFkr gS] ml Hkwfe ds ckcr ekaxhyky o xksj[kjke }kjk izfroknh la[;k 16 ls 18 ¼lksyg ls vBkjgk½ ds i{k esa fnukad 20-4-95 ¼chl pkj iapkuos½ dks fu'ikfnr o fnukad 27-6-95 ¼lrkbZl N% iapkuos½ dks iath;u gqvk cSpkuukek ,oa Jh ekaxhyky iq= izrkijke mQZ irkjke o Jherh euqMh iRuh izrkijke mQZ irkjke }kjk fnukad 29-6-95 ¼mUurhl N% iapkuos½ dks fu'ikfnr dj iath;u djok;s x;s "kqf) i= dks oknhuh ds fgLls dh Hkwfe dh lhek rd oknhuh ds vf/kdkjksa ds fo:) csvlj] fu'izHkkoh ,oa "kwU; nLrkost ?kksf'kr fd;k tkosA ¼l½ ;g gS fd [kljk uEcj 215 ¼nkS lkS iUnzgk½ dh Hkwfe ds ckcr ekaxhyky o xksj[kjke }kjk fu'ikfnr cSpkuukek fnukad 20-4-95 ¼chl pkj iapkuos½ o ekaxhyky o Jherh euqMh dh vksj ls fu'ikfnr "kqf)i= fnukad 29-6-95 ¼mUurhl N% iapkuos½ es of.kZr Hkwfe 7 ¼lkr½ ch?kk 7 ¼lkr½ fcLok [kljk uEcj 215 ¼nkS lkS iUnzgk½ tks xzke iky easa fLFkr gS] dks d`f'k Hkwfe ls vkoklh; Hkwfe esa iz;kstukFkZ :ikUrfjr djokrs gq, izfroknh la[;k 16 ls 18 ¼lksyg ls vBkjgk½ }kjk izfroknh la[;k 19 ¼mUuhl½ ls vkoklh; Hkwfe ds iV~Vk foys[k izkIr fd;s x;s gS] ftl vkoklh; Hkwfe esa oknhuh dk fgLlk 1@3 ¼,d@rhu½ gksuk ?kksf'kr djrs gq, mDr vkoklh; Hkwfe dk oknhuh ,oa izfroknh la[;k 16 ls 18 ¼lksyg ls vBkjgk½ ds e/; ckbZ feV~l ,.M ckm.M foHkktu djokrs gq, oknhuh ds fgLls dh Hkwfe dk i`Fkd dCtk o oknhuh ds fgLls dh Hkwfe dk iV~Vk foys[k izfroknh la[;k 16 ls 19 ¼lksyg ls mUuhl½ ls oknhuh dks fnyok; tkosA ¼n½ ;g gS fd izfroknh la[;k 16 ls 18 ¼lksyg ls vBkjgk½ ds fo:) bl vk"k; dh LFkk;h fu'ks/kkKk dh fMØh ikfjr dh tkos fd izfroknhx.k oknxzLr Hkwfe ij fdlh Hkh izdkj dk fuekZ.k dk;Z ugha djsA oknxzLr Hkwfe ;k bldk dksbZ Hkh fgLlk fdlh Hkh izdkj ls fdlh vU; dks gLrkUrj.k djrs gq, dCtk lqiqnZ ugha djs ,oa (Downloaded on 25/01/2021 at 09:04:34 PM) (6 of 19) [CFA-286/2014] oknxzLr Hkwfe dk oknhuh }kjk mi;ksx o miHkksx djus esa fdlh izdkj dh dksbZ ck/kk u rks Lo;a mRiUu djs vksj u gh fdlh vU; ls djkosA ¼;½ ;g gS fd [kpkZ okn izfroknhx.k ls oknhuh dks fnyk;k tkosA ¼j½ ;g gS fd vU; dksbZ mfpr vkns"k tks izdj.k ds rF;ksa o ifjfLFkfr;ksa dks ns[krs gq, oknhuh ds gd esa gks ikfjr fd;k tkosA"
On filing of the suit on 12/8/2014, the office of District Judge reported the suit to be within jurisdiction, limitation and court fees deficient. On 14/8/2014, the District Judge recorded on the order sheet that the plaintiff wanted to make submissions regarding maintainability of the suit. After seeking time on few occasions, submissions were made on behalf of the plaintiff on 17/10/2014. The District Judge by his judgment dated 20/10/2014 without registering the suit, exercising powers under Order VII Rule 11 CPC rejected the plaint holding the same as barred under the provisions of Section 207 of the Rajasthan Tenancy Act, 1955 ('the Act, 1955') and not maintainable for lack of cause of action before the civil court.
It is submitted by learned counsel for the appellant that the trial court committed grave error in rejecting the plaint under Order VII Rule 11 CPC without even registering the same.
Submissions were made that a bare look at the averments made in the plaint clearly reflects that the land in question, which belonged to Rawat Ram, was succeeded by Moola Ram, Gorakh Ram and Pratap Ram and after the death of Pratap Ram, as plaintiff along with her brother Mangilal and mother Smt. Manudi were class I heirs of Pratap Ram, they had jointly succeeded to the share of Pratap Ram in the land comprised in Khasra no. 215, however, defendant Mangilal - her brother, transferred the entire (Downloaded on 25/01/2021 at 09:04:34 PM) (7 of 19) [CFA-286/2014] share of their father to defendant nos.16 to 18 and subsequent thereto got included the name of his mother Smt. Manudi by way of correction deed. The said action of transferring the share of plaintiff also, clearly makes the transfer in question as voidable to the extent of plaintiff's share and as for the purpose of getting the said declaration, the suit was filed, the same was clearly maintainable before the civil court.
Further submissions were made that admittedly on the date of filing of the suit the land in question was already converted by order dated 18/6/2006 passed by the competent authority and Patta for residential purposes had already been issued in favour of defendant nos. 16 to 18 on 18/2/2007 and, therefore, dismissal of the suit by treating the land in question as agricultural land and suit being barred under Section 207 of the Act, 1955 is wholly baseless and, therefore, the judgment impugned deserves to be quashed and set aside.
Further submissions were made that dismissal of the suit before registering the same is also not justified in the circumstances of the case and, therefore, also the judgment impugned deserves to be quashed and set aside. Matter deserves to be remanded back to the trial court for decision on merits. Further prayer was made that in view of provisions of Section 62 of the Rajasthan Court Fees & Suits Valuation Act, 1961 ('Court Fees Act') the court fee be ordered to be refunded.
Reliance was placed on Hasti Cement Pvt. Ltd. & Anr. vs. Sandeep Charan & Ors. : 2018 (1) RLW 826, Rajendra Kumbhat & ors. vs. Smt. Devi & Ors. : 2015 (2) RLW 1530, Ramswaroop & Anr. vs. Smt. Kesar & Ors. : 2015 WLC (Raj.) (U.C.) 563, Amrit Lal & Ors. vs. Heera Ram & Anr. : 2016(3) DNJ (Raj.) 1151, (Downloaded on 25/01/2021 at 09:04:34 PM) (8 of 19) [CFA-286/2014] Khema & Ors. vs. Shri Bhagwan & Ors. : AIR 1995 Rajasthan 94, Bhanwaroo Khan vs. Azim Khan : 1992 (2) RLW 233, Bhopal Singh & Ors. vs. Bhagwat Singh : AIR 1979 Rajasthan 173, Gurucharan Singh & Ors. vs. Mst. Gurdayal Kaur & Ors. : AIR 1982 Rajasthan 91, Vishram Singh & Ors. vs. District Judge, Etawah & Ors. : AIR 1996 Allahabad 90, Smt. Pratapi vs. Jhamku & Ors. : 2013 (3) DNJ 1112, Vimal Kumar Jain vs. Mahaveer Prasad Jain : 2006 WLC (Raj.) (U.C.) 283, Smt. Bismillah vs. Janeshwar Prasad & Ors. : AIR 1990 S.C. 540 and Rajendra Bansal & Ors. vs. Bhuru (D) Thr. L.Rs. & Ors. : 2017 (1) CCC 387 (S.C.).
Vehemently opposing the submissions, learned counsel for the respondent nos. 16 to 18 supported the dismissal of the suit by the trial court at the threshold in exercise of powers under Order VII Rule 11 (d) CPC. It was submitted with reference to the plaint that the plaintiff has taken contradictory pleadings in the plaint and has claimed different share in different parts of the same plaint, no prayer for cancellation of sale deed has been made and the possession of the land has not been claimed.
In relation to the exercise of suo moto power under Order VII Rule 11 CPC, it was submitted that the civil court has jurisdiction to exercise the power suo moto even before registration of the suit and objection raised in this regard has no substance.
Further submissions were made that cancellation of sale deed as sought, would only be consequential to the declaration of khatedari rights of the plaintiff by the competent revenue court and till such time such rights are declared, the present suit even otherwise was not maintainable and as the proceedings have (Downloaded on 25/01/2021 at 09:04:34 PM) (9 of 19) [CFA-286/2014] already been initiated before the revenue court, the dismissal of the suit as barred under the provisions of Section 207 of the Act, 1955 is justified.
Further pleas were attempted to be raised by way of written submissions that proceedings under Section 90-B of the Rajasthan Land Revenue Act, 1956 ('the Act, 1956') were undertaken by the respondents, wherein, despite publication of notices in this regard, no objection was raised, which clearly reflects that the plaintiff had no right in the suit property. It was emphasized that requisite court fee has not been paid and despite creation of third party rights in the land in question, no relief qua them has been sought.
Another plea was raised that the respondents no. 16 to 18 are bonafide purchasers of the land in question, the proceedings have been initiated with laches without any explanation. Allegations have been made questioning the bonafides of the plaintiff in filing the suit and questions have also been raised regarding her rights under the provisions of Hindu Succession Act, 1956.
Further submissions were made highlighting the conduct of the appellant in the present proceedings also to allege that the appellant is not entitled to any relief. It was prayed that the appeal be dismissed.
Reliance was placed on Hasti Cement Pvt. Ltd. vs. Sandeep Charan & Ors. : AIR 2018 Rajasthan 143, Vijay Singh & Anr. vs. Buddha Ram & Ors. : S.B.Civil First Appeal No. 51/2011 decided on 12/3/2012, Rukmani vs. Bhola & Ors. : 2012 (2) WLC (Raj.) 797, Maria Margarida Sequeira Fernandes & Ors. vs. Erosmo Jack De Sequeira : (2012) 5 SCC 370, Suhrid Singh vs. Randhir Singh :
(2012) 12 SCC 112, Saleem Bhai & Ors. vs. State of Maharastra & (Downloaded on 25/01/2021 at 09:04:34 PM) (10 of 19) [CFA-286/2014] Ors. : (2003) 1 SCC 557, Popat & Kotecha Property vs. State Bank of India Staff Association : (2005) 7 SCC 510 and Church of Christ Charitable Trust & Educational Society vs. Ponniamman Educational Trust : (2012) 8 SCC 706.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record of appeal as well as the record of trial court.
At the outset, it may be observed that though, as noticed hereinbefore, the respondents have attempted to raise several additional issues by way of written submissions filed after conclusion of hearing seeking to justify the dismissal of the suit by the trial court before registering the same, as apparently the said aspects, in absence of notice to the defendants, were neither before the trial court nor the same have been considered in the judgment impugned, raising of such issues at this stage before this Court seeking to support the judgment impugned cannot be countenanced.
As noticed hereinbefore, the trial court at the stage of registration of suit itself, suo moto raised issue regarding the suit being barred under the provisions of Section 207 of the Act, 1955 and went on to conclude that the plaint was liable to be rejected as the same was barred by law. Though the power exercised appears quite drastic and unusual, as normally after the report is made by the office in relation to jurisdiction etc., the summons in a suit are routinely issued, however, it cannot be said that the exercise of power under Order VII Rule 11 CPC by the trial court suo moto before registration of the plaint, was in any manner beyond its jurisdiction.
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(11 of 19) [CFA-286/2014] Hon'ble Supreme Court in Church of Christ Charitable Trust (supra) inter alia laid down as under:
"It is clear from the above that where the plaint does not disclose a cause of action, the relief claimed is undervalued and not corrected within the time allowed by the Court, insufficiently stamped and not rectified within the time fixed by the Court, barred by any law, failed to enclose the required copies and the plaintiff fail to comply with the provisions of Rule 9, the Court has no other option except to reject the same. A reading of the above provision also makes it clear that power under Order VII Rule 11 of the Code can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial."
(emphasis supplied) In view of the law laid down above, the plea raised by the appellant seeking to question such exercise of power under Order VII Rule 11 CPC before registration of the plaint cannot be sustained.
The trial court, as noticed hereinbefore, after noticing the contents of the plaint observed that the civil court has no jurisdiction to deal with the issues pertaining to declaration of khaterdari rights of agricultural land, partition and permanent injunction, which jurisdiction lies with the revenue courts. The trial court also observed that the cancellation of sale deed was dependent on declaration of khatedari rights in favour of the plaintiff and as the proceedings are pending before the revenue court in this regard, it cannot be said that any right has accrued to the plaintiff to maintain the present proceedings.
While dealing with the submissions made that as the land in question stands converted from agricultural to residential in the year 2006, the suit for cancellation of sale deed could only be maintained before the civil court, the trial court observed as under:
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"7- oknh ds dFkukuqlkj izfroknh la- 16 ls 18 }kjk [kjhnh
xbZ Hkwfe vkoklh; iz;kstukFkZ laifjofrZr gks pqdh gSa] ysfdu Lohd`r :i ls oknxzLr Hkwfe igys d`f'k Hkwfe jgh gSA Hkw&jktLo vf/kfu;e dh /kkjk 90 ds vUrxZr d`f'k Hkwfe dks vkoklh; Hkwfe esa ifjofrZr djus dh fu/kkZfjr izfØ;k gS ftlds rgr izkf/kd`r vf/kdkjh ds vkns"k ls O;fFkr gksus dh n"kk esa vihy dk izko/kku gS vFkkZr ;fn oknh mDr vkns"k ls O;fFkr gS rks mlds }kjk l{ke U;k;ky; esa vihy nk;j dh tk ldrh gS ckdh l{ke izkf/kd`r vf/kdkjh }kjk Hkw&jktLo vf/kfu;e ds rgr ikfjr fd, x, vkns"k dks fujLr ;k vikLr djus dk vf/kdkj bl U;k;ky; dks ugha gSA 8- ;fn oknh l{ke jktLo U;k;ky; esa oknxzLr tehu dh [kkrsnkj ?kksf'kr gks tkrh gS rks bl vk/kkj ij mlds }kjk oknxzLr tehu ds laifjorZru ds vkns"k dks fujLr djkus dh dk;Zokgh dh tk ldrh gS ckdh mlds iwoZ bl U;k;ky; }kjk ,slk fd;k tkuk laHko ugha gS vkSj flQZ vkoklh; Hkwfe esa laifjorZu ds dkj.k gh bl U;k;ky; dks {ks=kf/kdkj gkfly ugha gks ikrk gSA"
The case of the plaintiff in the entire plaint has been that the land in question belonged to Rawat Ram, who had three sons including plaintiff's father Pratap Ram and that in one third share of her father in the land belonging to Rawat Ram, the plaintiff had 1/3 share along with her brother and mother being the three successors to her father Pratap Ram. The averments made in the plaint only need to be looked into while adjudicating the issue pertaining to the same being barred by law under Order VII Rule 11 (d) CPC, is the settled proposition of law. As such, going by the averments contained in the plaint, the plaintiff prima facie would have a share in the property which devolved on her father.
Further averments made in the plaint pertained to transfer of entire land, in which plaintiff's father had right, by brother of the plaintiff and subsequently mother having been included by way of correction deed in the sale deed, without involving the plaintiff also is not in dispute. From the averments made in the plaint, it is (Downloaded on 25/01/2021 at 09:04:34 PM) (13 of 19) [CFA-286/2014] also not in dispute that the land which is subject matter of the impugned sale deed stood converted from agriculture to residential purposes in the year 2006 and the plaintiff had claimed cancellation of sale deed dated 20/4/1995, which was rectified on 29/6/1995 to the extent of her share.
The issue regarding maintainability of suit seeking cancellation of sale deed in relation to agricultural land and/or same being barred under the provisions of 207 of the Act, 1955, has been subject matter of various judgments. This Court in the case of Hasti Cement (supra), which judgment has been relied on by both the sides, inter alia laid down as under:
"From what has been noticed hereinbefore, it can be safely concluded that if the allegation in the plaint/substance of the allegations in the plaint allege the instrument to be void and no cancellation is required and without seeking such cancellation the relief of declaration pertaining to tenancy rights with regard to the agricultural land in question can be obtained by the plaintiff, only the revenue courts would have jurisdiction to deal with the subject matter of the suit and consequently the jurisdiction of civil courts would be barred. However, if the allegations made in the plaint make out a case of document being voidable, relief of cancellation of such a voidable document can only be granted by civil court and irrespective of the fact that the instrument pertains to agricultural land, the suit would not be barred under Section 207 of the Tenancy Act. Therefore, the trial court in each case, where a issue in this regard is raised, based on the stage of the suit i.e. either based on the plaint averments or the evidence available on record would have to come to a conclusion as to whether the facts as alleged, if established or as established in a case where evidence has been led makes the instrument void or voidable and decide accordingly."
The various judgments cited by learned counsel for the parties have either already been taken into consideration in the case of Hasti Cement (supra) and/or the same are in consonance with the law laid down in the said case.
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(14 of 19) [CFA-286/2014] The plaintiff has repeatedly indicated/claimed in her plaint that the impugned sale deed to the extent of her share is required to be declared as void on account of same having been executed by her brother and subsequently name of her mother having been added, beyond their rights.
It is not even the case of the respondents that the allegations made in the plaint, if found correct, would make the transfer void.
Hon'ble Supreme Court in Dhurandhar Prasad Singh vs. Jai Prakash University : (2001) 6 SCC 534 inter alia laid down as under:
"22. Thus the expressions "void and voidable" have been subject matter of consideration on innumerable occasions by courts. The expression "void" has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g., may be transaction against a minor without being represented by a next friend. Such a transaction is good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable."
(emphasis supplied) (Downloaded on 25/01/2021 at 09:04:34 PM) (15 of 19) [CFA-286/2014] As such, looking to the nature of transaction, plaint averments and stand of the respondents in relation to the documents/transaction in question and the fact that the legal effect of the sale deed cannot be taken away without setting aside the same, as laid down in the case of Dhurandhar Prasad Singh (supra), the document would be voidable only and as such, only the civil court would have the jurisdiction in the matter.
Besides the above aspect, the judgments cited by both the sides have not dealt with the aspect about maintainability of a suit, which though seeks cancellation of sale deed which pertained to an agriculture land by claiming right in the said land, however, on the date of filing of the suit the same has already been converted from agriculture to non-agriculture purposes, residential in the present case.
Though recently Hon'ble Supreme Court in Pyarelal vs. Shubhendra Pilania : (2019) 3 SCC 692 exhaustively dealt with maintainability of the suit before civil courts with reference to Section 207 of the Act, 1955. However, in the said case the subject matter of the suit was admittedly agricultural property, which is apparent from the following observations:
"20. It is admitted that the suit property is agricultural property and the appellant has filed a suit before the Revenue Court for the declaration of his khatedari rights."
As such the said judgment also does not provide any guidance on the issue invovled.
Provisions of Section 207 of the Act, 1955 reads as under:
"207. Suits and applications cognizable by revenue court only-- (1) All suits and application of the nature (Downloaded on 25/01/2021 at 09:04:34 PM) (16 of 19) [CFA-286/2014] 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 or of any 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."
The provision confers jurisdiction on revenue courts qua suits and application of the nature specified in the Third Schedule attached to the Act, 1955. The Third Schedule inter alia prescribes suit, application or appeal of various descriptions which can be filed under the Act, 1955 in relation to agricultural lands.
The jurisdiction of the court/authority has to be determined based on the status of the subject matter as it exists on the date of filing of the suit, as in case the determination is to be made based on nature of land as per the document in question, the very fact that the entire land in question already stands converted to non-agriculture purposes and as noticed, from a bare reading of provisions of Section 207 of the Act, 1955 it is apparent that the jurisdiction of the revenue courts is confined to dealing with the suits pertaining to agriculture land, the same would amount to conferring jurisdiction on revenue court, qua a subject matter i.e. converted land, which it does not have.
The trial court, as quoted hereinbefore, when confronted with the said aspect pertaining to conversion of land into residential, merely referred to the fact that the order of conversion could be challenged by way of appeal and that the civil court had no jurisdiction to cancel the order of conversion. The observation made by the trial court while dealing with the said aspect about maintainability of the suit in a case where the land stood (Downloaded on 25/01/2021 at 09:04:34 PM) (17 of 19) [CFA-286/2014] converted on the date of filing of the suit is wholly besides the point inasmuch as the submissions made did not pertain to challenge to the conversion, the same pertained to the effect of conversion on the jurisdiction of the court and as such, the observations made and finding recorded by the trial court in this regard cannot be sustained.
In view of the above discussions, as per the plaint averments, the entire land which was comprised in the sale deed under challenge stood converted from agriculture to residential purposes way back in the year 2006 and the suit was filed in the year 2014 it cannot be said that the jurisdiction of civil court qua the said land was barred under the provisions of Section 207 of the Act, 1955 and as such rejection of the plaint by the trial court as barred by law cannot be sustained and matter deserves to be remanded back to the trial court.
As noticed hereinbefore, several aspects have been sought to be raised by the respondents, besides the jurisdiction of the court being barred under Section 207 of the Act, 1955, pertaining to maintainability of the suit, however, as the said aspects were not before the trial court inasmuch as the trial court exercised power under Order VII Rule 11 (d) CPC before registering the plaint, it would always be open for the respondent-defendants to take all the defences and raise all the issues, not already decided, once they appear before the trial court.
During the pendency of the present appeal, by order dated 6/5/2015, the respondent nos. 16 to 18 were restrained from alienating the suit property, which order was modified on 21/9/2015 inter alia directing as under:
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(18 of 19) [CFA-286/2014] ".....The said order is modified accordingly and it is directed that any further development or alienation of the suit property upon this land of 7 Bigha 7 Biswa of land by the respondents No. 16 to 18 shall remain subject to the final decision of the suit itself.
The stay application is accordingly disposed of with this modification."
The above order was clarified by order dated 9/12/2015 that the order dated 21/9/2015 could not have been intended to subject the entire land of 7 Bigha 7 Biswa and only the undeveloped one third portion of the land would be governed by it.
As the directions were given till final decision of the suit itself, in the circumstances of the case, till the trial court decides the application filed by the plaintiff under Order XXXIX Rule 1 & 2 CPC, the said order dated 21/9/2015 as clarified by order dated 9/12/2015, shall remain in force.
Under the provisions of Section 62 of the Court Fees Act, where the plaint has been rejected by lower court is ordered to be received or where a suit is remanded in appeal for fresh decision by the lower court, the Court making the order or remanding the appeal may direct the refund to the appellant of the full amount of fee paid on the memorandum of appeal.
It is made clear that any observations made hereinbefore shall not be taken as expression of opinion by this Court on the merits of any contention raised in the plaint.
In view of the above discussion, the appeal filed by the appellant is allowed. The judgment impugned dated 20/10/2014 is set aside. The matter is remanded back to the trial court. The parties present before this Court shall appear before the trial court (Downloaded on 25/01/2021 at 09:04:34 PM) (19 of 19) [CFA-286/2014] on 8/2/2021, whereafter, the trial court shall proceed with the suit in accordance with law.
Respondents - defendants would be free to raise all the issues before the trial court.
The interim order dated 21/9/2015 passed by this Court as clarified by order dated 9/12/2015 shall remain in force till the trial court decides application under Order XXXIX Rule 1 & 2 CPC.
The court fees paid by the appellant on memorandum of appeal shall be refunded back to the appellant and the certificate in this regard shall be issued by the office.
No order as to costs.
(ARUN BHANSALI),J baweja/-
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