Rajasthan High Court - Jodhpur
Bal Krishan & Anr vs Manoj Kumar & Ors on 7 January, 2014
Equivalent citations: AIR 2014 (NOC) 343 (RAJ.)
Author: Arun Bhansali
Bench: Arun Bhansali
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:ORDER:
S.B. CIVIL REVISION PETITION NO.196/2012
Bal Kishan & Anr.
vs.
Manoj Kumar & Ors.
Date of Order :: 07.01.2014
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. G.R. Goyal, for the petitioners.
Mr. N.L. Joshi, for the respondents.
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BY THE COURT:
This revision petition is directed against the order dated 04.09.2012 passed by the Additional Civil Judge (Junior Division) No.3, Bikaner ('the trial court'), whereby, the application filed by the petitioners under Order VII, Rule 11 (a) and (d) CPC has been dismissed.
The facts in brief may be noticed thus: the respondent- plaintiffs filed a suit seeking declaration and injunction regarding land said to be comprised in Khasra No.1135, which according to the plaintiffs was being used by them for the purpose of cremation and there were also temple & samadhies on the said land.
Based on the averments contained in the plaint, it was submitted that the said land was sought to be trespassed by the 2 petitioners and, therefore, they be restrained from occupying the said land and from stopping the plaintiffs form using the land as cremation place and not to demolish the temple etc. An application under Order VII, Rule 11 CPC was filed by the petitioners, inter alia, with the averments that the land in question was an agriculture land and, therefore, the suit was barred under Section 207 of the Rajasthan Tenancy Act, 1955. It was further claimed that the suit has been filed by suppressing material facts and same does not disclose any cause of action. The application was opposed by the plaintiffs.
The trial court after hearing the parties, found that the casue of action was disclosed in the plaint and came to the conclusion that as the declaration was being sought regarding cremation ground and temple only Civil Court has the jurisdiction and, consequently, rejected the application.
It is submitted by learned counsel for the petitioner that from the plaint averments, it is, apparent that the plaintiffs have no cause of action and the land in question is an agriculture land and, therefore, the Civil Court has no jurisdiction to try the said suit. It was submitted that written statement has already been filed, issues framed and from the record, it is, apparent that the plaintiffs have no case and, therefore, the trial court was not justified in rejecting the application under Order VII, Rule 11 CPC.
I have considered the submissions made and perused the record.
From the bare reading of the plaint, it cannot be said that 3 the plaint does not disclose a cause of action inasmuch as, the plaintiffs have come out with the averments that the land in question is being put to use as cremation ground and temple and, there are certain samadhies also on the said land, which is sought to be occupied by the defendants and the temple and samadhies are likely to be demolished and they have right to use the land for cremation purposes, which would be interfered and as such, the suit was filed seeking declaration and injunction. As such, it cannot be said that the plaint does not disclose a cause of action.
So far as the fact as to whether the land in question is an agriculture land and/or the same can be termed as abadi land, so as to maintain the suit before the Civil Court, in the present case at the stage of consideration of the application under Order VII, Rule 11 CPC, the said aspect based on the bare averments made in the plaint cannot be considered as the case of the plaintiffs is that the land is being put to use as cremation ground and temple exist.
The trial court has already framed issue No.4 regarding maintainability of the suit. In the present case, the fact as to whether the land in question is an agriculture land or abadi land is a question of fact and has to be decided after the evidence is led by the parties on the issue.
However, looking to the fact that the said aspect pertains to the jurisdiction of the Court, it would be appropriate that the said issue No.4 is decided as a preliminary issue after taking evidence, in case deemed appropriate by the trial court. 4
In the facts and circumstances of the case, it is directed that issue No.4 be decided by the trial court as expeditiously as possible preferably within a period of six weeks from the date the record is received by the said Court alongwith a copy of this order.
Record be sent back to the trial court forthwith. Consequently, with the above observations and directions, the order passed by the trial court does not call for any interference and the revision petition is, therefore, dismissed.
The stay petition is also dismissed.
(ARUN BHANSALI), J.
PKS-105