Rajasthan High Court - Jodhpur
Mahendra Kumar And Ors vs Smt. Maya Devi And Ors on 11 February, 2021
Author: Arun Bhansali
Bench: Arun Bhansali
(1 of 8) [CR-182/2017]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision Petition No. 182/2017
1. Mahendra Kumar S/o Shri Sahab Ram,
2. Rohitash S/o Shri Sahab Ram,
3. Surjeet S/o Shri Ram Kumar
4. Daya Ram S/o Shri Ram Kumar, Resident Of Village And
Post Office Fatuhi Tehsil And District Sri Ganganagar
----Petitioners
Versus
1. Smt. Maya Devi D/o Shri Sahab Ram W/o Shri Bhajan Lal,
Resident Of 8 Lsm, Indira Basti, Tehsil Anupgarh District
Sri Ganganagar.
2. Smt. Ram Kumar S/o Shri Sahab Ram, Resident Of Village
And Post Office Fatuhi Tehsil And District Sri Ganganagar
At Present Residing At 8 Lsm Indira Basti, Tehsil
Anupgarh District Sri Ganganagar.
3. Smt. Savitri Devi W/o Shri Ram Kumar, Resident Of
Village And Post Office Fatuhi Tehsil And District Sri
Ganganagar
4. Smt. Laxmi Devi D/o Shri Sahab Ram W/o Shri Anil
Kumar, Resident Of House No. B-98, Gali No. 4 Ward
No.3, Purani Abadi Sri Ganganagar.
----Respondents
Connected With
S.B. Civil Revision Petition No. 216/2017
1. Mahendra Kumar S/o Shri Sahab Ram,
2. Rohitash S/o Shri Sahab Ram,
3. Surjeet S/o Shri Ram Kumar
4. Daya Ram S/o Shri Ram Kumar, Resident Of Village And
Post Office Fatuhi Tehsil And District Sri Ganganagar
----Petitioners
Versus
1. Smt. Maya Devi D/o Shri Sahab Ram W/o Shri Bhajan Lal,
Resident Of 8 Lsm, Indira Basti, Tehsil Anupgarh District
Sri Ganganagar.
2. Smt. Ram Kumar S/o Shri Sahab Ram, Resident Of Village
And Post Office Fatuhi, Tehsil And District Sri Ganganagar
At Present Residing At 8 Lsm Indira Basti, Tehsil
Anupgarh District Sri Ganganagar
3. The Oriental Bank Of Commerce, Branch Office Fatuhi,
Tehsil And District Sri Ganganagar.
4. Smt. Savitri Devi W/o Shri Ram Kumar, Resident Of
Village And Post Office Fatuhi Tehsil And District Sri
Ganganagar
5. Smt. Laxmi Devi D/o Shri Sahab Ram W/o Shri Anil
Kumar, Resident Of House No. B-98, Gali No. 4 Ward
No.3, Purani Abadi Sri Ganganagar.
----Respondents
For Petitioner(s) : Mr. C.S. Kotwani
For Respondent(s) : Mr. S.L. Jain
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(2 of 8) [CR-182/2017]
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 11/02/2021 These revision petitions have been filed by the petitioners aggrieved against the orders dated 07.07.2017 passed by the trial court, whereby, the applications filed by the petitioners under Order VII Rule 11 CPC have been rejected.
The suits were filed by the plaintiffs-respondents No.1 & 2 seeking declaration in relation to the gift deed dated 18.11.2014 in Civil Original Suit No.48/2016 and Will dated 18.11.2014 in Civil Original Suit No.47/2016 executed by Sahab Ram, father of the plaintiffs and defendants No.1 to 4 were void and ineffective against the plaintiffs and that perpetual injunction against the defendants from dealing with the properties in question.
It was inter alia indicated in the suit that the suit properties were joint family properties and deceased Sahab Ram inter alia had no right to execute the gift deed and Will qua the properties in question and, therefore, the same were liable to be declared as void.
The present applications were filed by the defendants under Order VII Rule 11 CPC inter alia with the submissions that the suits were barred under provisions of Section 207 of the Rajasthan Tenancy Act, 1955 ('the Act'), inasmuch as a suit seeking declaration qua agricultural land can be filed under Section 88 of the Act and, therefore, the plaint was liable to be rejected.
The applications were contested by the plaintiffs inter alia with the submissions that the main relief can only be granted by the civil court and as such the application filed under Order VII Rule 11 CPC was liable to be rejected.
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(3 of 8) [CR-182/2017] After hearing the parties, the trial court came to the conclusion that as the main relief sought pertains to the cancellation of the Will dated 18.11.2014 and the gift deed dated 18.11.2014, the said relief can only be granted by the civil court and as the rest of the reliefs were collateral in nature, the same cannot be granted by the revenue court and consequently, rejected the applications.
Learned counsel for the appellants made submissions that the trial court was not justified in rejecting the application under Order VII Rule 11 (d) CPC, inasmuch as, the suits admittedly pertain to agricultural land and once the declaration has been sought qua agricultural land, the revenue courts are competent to grant such relief under Section 88 of the Act and in view thereof, under provisions of Sections 207 & 256 of the Act, the suit was barred.
Reliance was placed on judgment of Hon'ble Supreme Court in case of Pyarelal v. Shubhendra Pilania (Minor) & Ors.: 2019 DNJ SC 115.
Learned counsel for the respondents made submissions that the case of the respondents-plaintiffs was specific that the suit properties were joint family property and the father of the plaintiffs -Sahab Ram, had no right to deal with the properties, whereby, he has executed Will and gift deed in relation to the entire property, as the plaintiffs also had share in the said property.
Submissions were made that it was the case of the plaintiffs that the said documents were voidable and as such the suit for getting the declaration under Section 31 of the Specific Relief Act, 1963 could only lie before the civil court. (Downloaded on 11/02/2021 at 09:20:35 PM)
(4 of 8) [CR-182/2017] Reliance was placed on Hasti Cement Pvt. Ltd. & Anr. v. Sandeep Charan & Ors.: 2018 (2) DNJ (Raj.)421.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
It would be appropriate to quote the case of the plaintiffs, which is inter alia reflected in para 7 of Civil Original Suit No.47/2016, which reads as under:-
"bl izdkj lkgcjke us mijksDr iSr`d o lgnkf;dh lEifÙk esa ls 1-200 gS- Hkwfe olh;r fnukad 18-11-2014 ds ek/;e ls izfroknhx.k dks mijksDr fooj.k ds vuqlkj fcuk vf/kdkj ns nh gSA"
Para - 9 of Civil Original Suit No.48/2016 reads as under:-
"9- ;g fd oknxzLr lEifÙk esa oknhx.k] izfr-la- 1] 2 o 6 lkgcjke firk oknhx.k N% O;fDr lgnkf;dh lEifÙk ds lnL; gS vkSj bl lgnkf;dh lEifÙk ds Lokeh FksA lkgcjke dks bl lEifÙk ds fdlh Hkkx dh olh;r djus dk vf/kdkj ugha FkkA lkgcjke ds uke ls izfroknhx.k us lkgc jke dh "ks'k cph Hkwfe dh olh;r [kkrk la[;k 72@79 ds eqjCck uEcj 49 ds fdyk uEcj 1] 10] 11] 20] 21 dks lkgcjke dh lEifÙk crkdj fnukad 18-11-2014 dks gh olh;r ds uke ls ,d izys[k izfroknhx.k la[;k 1 rk 4 ds gd esa fu'ikfnr o iathc) djok fy;k gSA bl Hkwfe dh bl olh;r dks fu'iknu o iathc) djokus dk vf/kdkj lkgcjke firk oknhx.k dks ugha FkkA bl izdkj oknhx.k dks mijksDr lEiw.kZ lEifÙk ls oafpr dj fn;k x;k gSA ;g olh;rukek fnukad 18-11- 14 Hkh ewy :i ls izHkko"kwU; izys[k gS vkSj blls Hkh izfr-la- 1 rk 4 bl lEifÙk esa dksbZ vf/kdkj izkIr ugha gqvk gSA bl olh;r dks Hkh oknhx.k fu'izHkkoh ?kksf'kr djokus o oknhx.k ds vf/kdkjh ij izHkko"kwU; ?kksf'kr djokus dk okn i`Fkd ls nk;j fd;k tk jgk gSA olh;r dh udy layXu okn gSA"(Downloaded on 11/02/2021 at 09:20:35 PM)
(5 of 8) [CR-182/2017] Besides the above, the very execution of both the documents on account of the physical condition of the executant has also been questioned.
This Court in the case of Hasti Cement (supra), while dealing with the maintainability of suits before civil court in relation to agricultural land, inter alia came to the following conclusion :-
"21. 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."
It was further laid down in relation to a case where the challenge laid to the transfer was on account of the fact that the land in question was joint family property and that the transfer (Downloaded on 11/02/2021 at 09:20:35 PM) (6 of 8) [CR-182/2017] was made beyond the share of the transferor, it was further laid down as under:-
"25. In view of the above discussion, the present case needs to be examined wherein, as noticed hereinbefore, the declaration has been sought in the plaint seeking cancellation of sale deed to the extent of share of the plaintiff on account of the fact that the suit property being ancestral joint Hindu property the transfer was made without any reason, basis or necessity.
26. On the said aspect, while the judgment in the case of Sangram Singh (supra) laid down that such a sale would be void and, therefore, the suit would be triable by revenue court only, in later judgment in the case of Bhopal Singh (supra) it was laid down that such a sale would be voidable and not void. For the said proposition, reliance was placed on the judgment of Hon'ble Supreme Court in the case of Raghubanchmani (supra) and a unreported judgment in the case of Longram vs. Jaipal Singh : Civil Revision Petition No.153/1971 decided on 29/7/1971, taking different view was held as not a good law in view of the Supreme Court judgment, for the same reasons the judgment in the case of Sangram Singh (supra) also cannot be said to be a good law though the judgment in the case of Sangram Singh was not cited in the case of Bhopal Singh (supra). Relevant portion of the judgment dealing with the said aspect reads as under:
"13. In view of the decision in Raghubanchamani's case AIR 1971 SC 776, the sale-deed made by the plaintiff's father, who is defendant No. 5, in favour of the defendants Nos. 1 and 4 (petitioners) is voidable as according to the plaintiff it was without legal necessity and under Section 31(1) of the Specific Relief Act, when the plaintiff has reasonable apprehension that the sale-deed if left outstanding, may cause him serious injury, it became necessary for him to have it adjudged, void or voidable. The cancellation of the sale- deed, being the main relief in the suit, can only (Downloaded on 11/02/2021 at 09:20:35 PM) (7 of 8) [CR-182/2017] be granted by a Civil Court. Learned counsel for the petitioners cannot, in my opinion, derive any benefit from the decision in Jagansingh's case 1973 Raj LW 674. In Longram's case Civil Revn. No. 153 of 1971, D/- 29-7-1971 Raj) (supra) the learned Judge took the view that the sale by the father of undivided coparcenary property is void in the absence of the legal necessity and the prayer for cancellation of the sale-deed is not very material, and further that the suit was essentially for possession of agricultural land. The sale by the father of the plaintiff in the case before me is voidable according to the decision in Raghubanchamani's case AIR 1971 SC 776. I regret my inability to agree with the view taken in Longram's case and it is no more a good law after Raghubanchamani's case."
27. In view of the above, the law laid down in the case of Bhopal Singh (supra) holding the instrument of the present nature as voidable, suit apparently is maintainable before the civil court and in view thereof the order passed by the trial court cannot be faulted." The above law laid down in the case of Hasti Cement (supra) squarely applies to the present case, wherein, as the allegations made in the plaint make only a case of documents being voidable, only the civil court would have jurisdiction to deal with the said aspect.
Besides the above, as the execution of the documents have also been questioned regarding the fact that the same were surrounded by the suspicious circumstances on account of physical condition of the deceased Sahab Ram, the said aspect also cannot be examined by the revenue courts, which aspect have been considered by this Court in Shiv Karan v. Ram Karan: S.B. Civil Revision Petition No.111/2015, decided on 28.08.2018, wherein, it was inter alia laid down as under:-
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(8 of 8) [CR-182/2017] "As admittedly the respondent alleged that the Will in question is not genuine and is concocted, the said aspect can only be examined by a competent civil court as laid down by Hon'ble Supreme Court in the case of Suraj Bhan v. Financial Commissioner : (2007) 6 SCC 186 and Vimal Kumar Jain v. Mahaveer Prasad Jain :
Civil Revision No.18/2005, decided on 17.10.2005 at Jaipur Bench."
So far as the judgment in the case of Pyarelal (supra) is concerned, the said judgment only dealt with a case where the allegations made, made out a case of the document being void whereon it was laid down by Hon'ble Supreme Court that for seeking a relief qua the agricultural land, where the document is void, a prior declaration is required for maintaining the suit. The said judgment in the case of Pyarelal (supra) has no application to the facts of the present case.
In view of the above discussion, the orders impugned passed by the trial court cannot be faulted.
Consequently, there is no substance in the revision petitions. The same are, therefore, dismissed.
(ARUN BHANSALI),J 48-pradeep/-
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