Rajasthan High Court - Jaipur
Vijay Singh And Another vs Buddha Ram And Others on 12 March, 2012
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR J U D G M E N T Vijay Singh & another Vs. Buddha & others. S.B.Civil First Appeal No. 51/2011 Date of Judgement : 12.03.2012 PRESENT HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL Mr.J.P.Gupta for the appellants. Mr.G.P.Sharma for the respondents. REPORTABLE BY THE COURT:
Challenge in this appeal is to the impugned judgment and decree dated 17.1.2011 passed by Additional District Judge, Beawar (District Ajmer) in Civil Suit No.71/2010 whereby by coming to a conclusion that the suit is exclusively triable by a revenue court, he allowed the application filed under Order 7 Rule 11 CPC by the defendant-respondents and in consequence thereof dismissed the suit filed by the plaintiff-appellants.
2. Brief relevant facts for the disposal of this appeal are that the plaintiff-appellants filed a suit for cancellation of sale deed, permanent and mandatory injunction before the Court below with the averments that the land in dispute, an agricultural land, originally was in the khatedari of one Shri Lumba and his brother-Shri Ladu both son of Shri Azima and Shri Ladu died issue-less some time in the year 1958 and whole of the land devolved on defendant-respondent-Shri Buddha and Shri Mangla predecessor in title of defendant-respondents No.2 to 7 and both of them i.e. Shri Buddha and Mangla jointly sold the land in dispute by way of a registered sale deed dated 3.11.1959 to the father of appellants; Shri Nizam and after the death of Shri Nizam, it devolved on the appellants. It was alleged that whole of the land in dispute is in the khatedari of appellants and they alone are khatedar-tenant of it. It was further submitted that the respondents No.1 to 7 without any legal authority got mutation of the land in dispute in their name on 1.2.2008 by wrongly alleging that Shri Ladu died in the year 2004 and after his death one-half share of the land devolved upon them. It was further averred in the plaint that the respondents No.1 to 7 without any legal authority sold one-half share of the land in dispute by way of a registered sale deed dated 18.5.2010 to defendant-respondent No.8-Shri Suwa. It was also averred by the appellants that they are in continuous possession of the land in dispute for last fifty years and by adverse possession also they have acquired khatedari rights in it. It was prayed by the appellants that the sale deed dated 18.5.2010 may be cancelled as it is illegal, void and ineffective against their rights. It was also prayed that it may be declared that under the sale deed no rights have accrued to defendant-respondent No.8 and he has no right to get his name entered in revenue record as khatedar-tenant on the basis of the sale deed and it may also be declared that the entries made in the revenue record in the name of respondent No.1 to 7 are illegal, ineffective and void to the rights of appellants. It was further prayed that the respondents may be restrained by permanent injunction of the effect that they do not interfere in the peaceful possession of the appellants in the land and they refrain from selling or otherwise transferring the land in dispute to any other person. It was also prayed that it may be declared that the appellants are in continuous and rightful possession of land in dispute for last 50 years and the land is in their adverse possession. Alongwith the plaint some documents were also filed by the appellants.
3. The respondents filed a joint written statement and most of the averments made in the plaint were denied. They also filed some documents alongwith the written statement.
4. The respondents filed an application under Order 7 Rule 11 CPC mainly alleging therein that the suit filed by the appellants is barred by law as it is not entertainable by a Civil Court and it can be considered only by a revenue court. It was stated in the application that apart from relief of cancellation of sale deed dated 18.5.2010, the appellants have also prayed that the entries made in the revenue record in the name of respondents No.1 to 7 may be declared illegal, void and ineffective to the extent of appellants' rights and such relief can be granted only by a revenue court. A reply to the application was filed by the appellants and the learned court below after hearing the respective parties allowed that application and by passing the impugned judgment and decree dismissed the suit filed by the appellants. Feeling aggrieved, the plaintiff-appellants are before this Court by way of this appeal.
5. Assailing the impugned judgment and decree, learned counsel for the appellants submitted that as per averments made in the plaint the whole of the land in dispute was sold by the respondent-Buddha and deceased Mangla by means of a registered sale deed dated 3.11.1959 to the father of appellants late Shri Nizam and by force of this sale-deed late Shri Nizam became sole khatedar-tenant of the land in dispute and after the death of Shri Nizam, both the appellants became joint khatedar-tenant of it. According to learned counsel for the appellants name but the respondents No.1 to 7 without any legal authority got their name entered into revenue record and thereafter taking undue benefit of the wrong entries and without any legal right sold one-half share of the land in dispute to respondent No.8-Shri Suwa by way of sale deed dated 18.5.2010, which being without any legal authority is liable to be cancelled. Learned counsel for the appellants further submitted that the main relief claimed by the appellants is regarding cancellation of sale deed dated 18.5.2010 and all other reliefs are only consequential/ancillary to the main relief and as only a Civil Court is competent to cancell such a sale deed, the suit was rightly filed in the Court below but the learned trial Court without considering the matter in a right perspective dismissed the same by finding that it is not entertainable by a Civil Court. Learned counsel also submitted that the question whether a suit is triable by a Civil Court or by a Revenue Court is to be determined only on the basis of averments made in the plaint and not on the basis of averments made by the defendant either in the written statement or in application filed under Order 7 Rule 11 CPC. Learned counsel further submitted that as a result of sale deed dated 3.11.1959, father of the appellants became khatedar-tenant of whole of the land in dispute and after his death as both the appellants jointly became khatedar-tenant of it, it was not necessary for them to file a suit for declaration of khatedari rights under the provisions of Rajasthan Tenancy Act in a revenue court. According to learned counsel for the appellants provisions of Section 207 of the Rajasthan Tenancy Act are applicable only when any of the suit or application as mentioned in Schedule-III appended to the Act is filed and relief claimed in the suit is of such a nature which can be granted only by a revenue court. In support of his submissions, learned counsel for the appellants relied upon the cases of Bhanwaroo Khan Vs. Azim Khan reported in 1993 (1) WLC 491 and Smt. Bismillah Vs. Janeshwar Prasad and Ors. reported in AIR 1990 (SC) 540.
6. On the contrary, learned counsel for the respondents by supporting the impugned judgment and decree, submitted that admittedly the appellants are not party to the sale deed dated 18.5.2010 and, therefore, they are not entitled to seek relief of cancellation of that sale deed as it is well settled that only a party to a deed can seek relief of cancellation of such a deed. It was also submitted that it is clear from the sale deed dated 18.5.2010 that the respondents No.1 to 7 have sold only one-half undivided share in the land in dispute to respondent No.8 and at the time of sale, one-half share of the land was in the name of the respondents No.1 to 7 in the revenue record and before that it was in the name of Shri Ladu and after his death his half share devolved on the respondents No.1 to 7 and their names were entered in the relevant revenue record. Learned counsel further submitted that after the death of Shri Ladu, respondents No.1 to 7 being his successors became khatedar-tenant of half share of the land in dispute and they were entitled to sell that portion to any person including respondent No.8-Shri Suwa. According to learned counsel for the respondents as in the relevant revenue record, one half undivided share of the land in dispute remained entered in the name of Shri Ladu and after his death, it was entered in the name of respondents and, therefore, unless these entries in revenue record are declared illegal and ineffective against the rights of appellants by a competent revenue court, the sale deed dated 18.5.2010 cannot be canceled. According to learned counsel the main relief sought in the present suit is infact declaration of khatedari rights in whole of the land in dispute on the basis of alleged sale deed dated 5.3.1959 and as such rights can be conferred only by a revenue court, the suit is not entertainable by a Civil Court and the learned Court below has rightly dismissed the same finding that the Civil Court does not have jurisdiction to consider the suit filed by the appellants. The learned counsel for the respondents relied upon the case of Jaswant Singh etc. Vs. Board of Revenue & ors. reported in 1984 RLR 791 (Rajasthan High Court).
7. I have considered the submissions made on behalf of the respective parties and also gone through the record made available for my perusal as well as the relevant legal provisions and the case law.
8. Order 7 Rule 11 CPC reads as follows:
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 undervalued, and the plaintiff, on being required by the Court to 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 plaint 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 plaintiff was prevented by any cause of an exceptional nature for 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.
9. In the present case, the learned lower court and the respondents have relied upon clause (d) of Rule 11.
10. Before dealing with the factual scenario, the spectrum of Order 7 Rule 11 in the legal ambit needs to be noted. The legal position in regard to Order 7 Rule 11 CPC may be summerised as below:
(i) The relevant facts which need to be looked into for deciding an application under Order 7 Rule 11 are the averments made in the plaint. The trial Court can exercise the power at any stage of the suit-before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purpose of deciding an application under clause (d) of Order 7 Rule 11 of the Code, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.
(ii) The basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
(iii) It is well settled that the question of jurisdiction namely whether a suit is exclusively triable by a revenue court or a Civil Court can take cognizance of it has to be decided on the basis of allegations made in the plaint. It is also further settled that it is the substance of the plaint and the true nature of the suit that is to be seen to determine the question of jurisdiction. If in substance the relief claimed is one which the revenue court alone is entitled to give, the jurisdiction of the civil court will be ousted even though it may require the revenue court to incidentally determine some ancillary facts. In order to determine the true nature of the relief claimed in a suit, the pith and substance and not the form in which the relief may be couched has to be considered. Each case has to be examined on its own particular facts and no universal rule can be applicable to every case. If the aforesaid principles are not kept in view it may be open to a party to evade the liability as to exclusiveness of Jurisdiction. But care should be taken not to introduce anything in the plaint which may not be found there or which may be foreign to its purpose. A plaint should be construed as it is and not as it ought to be.
(iv) The exclusion of jurisdiction of a civil court cannot be lightly inferred and the jurisdiction of the civil court cannot be ousted until the exclusion is clearly established. Under Section 9 of the CPC, a civil court can entertain a suit of a civil nature except a suit of which cognizance is either expressly or impliedly barred. A statute ousting the jurisdiction of the civil court must be strictly construed.
(v) Apart from averments made in the plaint, documents filed by the plaintiff alongwith the plaint can also be looked into. Documents filed by the defendant, which are undisputed or cannot be disputed can also be looked into to decide an application filed under Order 7 Rule 11 CPC.
11. Section 207 of the Rajasthan Tenancy Act provides that all suits and applications of the nature specified in Schedule-III shall be heard and determined by a Revenue Court and further it has been provided that 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 explanation appended to Section 207 of the Act provides that 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 may possibly grant. The term 'cause of action' though no where defined is now very well understood. It means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It follows that in each and every case the cause of action for filing of the suit shall have to be strictly scrutinised in order to determine whether the suit is exclusively cognizable by a revenue court or is impliedly cognizable only by a revenue court or is cognizable by a Civil Court. If more than one reliefs are claimed in the suit, then the jurisdiction of the civil or revenue courts to entertain the suit shall be determined on the basis as to what is the real or substantial or main relief claimed in the suit. If the main relief is cognizable by a revenue court, the suit would be cognizable by the revenue court only and the fact that the ancillary reliefs are cognizable by the civil court would be immaterial for the determination of the proper forum for filing the suit. On the other hand, if the main relief is cognizable by a civil court, the suit would be cognizable by civil court only and ancillary reliefs are immaterial.
12. Now coming to the facts of the present case, from perusal of averments made in the plaint and the documents available on record following facts clearly emerge:-
(i) The land in dispute, an agriculture land, originally was in the khatedari of one Shri Lumba and Shri Ladu each of them having one-half share in it. Some time in the year 1958 Shri Ladu died issueless and the whole of the land devolved on respondent-Shri Buddha and predecessor in title of respondents, Shri Mangla and both of them sold whole of the land in dispute by means of a registered sale deed dated 3.11.1959 to father of appellants-Shri Nizam and possession of the land was also delivered to him. It is pertinent to note that in the sale-deed dated 3.11.1959, this fact was not mentioned that Shri Ladu has died issuelss and his one-half share in the land has also devolved on Shri Buddha and Shri Mangla and they are entitled to sell one-half share of Shri Ladu also.
(ii) It is not clear whether on the basis of sale deed dated 3.11.1959 the whole of the land so sold or a part of it was ever entered in the name of late Shri Nizam in relevant revenue record as copy of such record has not been placed on file and there is also no averment in the plaint regarding it.
(iii) Father of appellants-Shri Nizam died on 5.8.1975 and after that the land in dispute devolved on the appellants.
(iv) In the Jamabandi (a revenue record) of Samvat Year 2022 to 2025, one-half share of the land in dispute stands in the name of Shri Nizam whereas remaining one-half of the land stands in the name of Shri Ladu.
(v) In the Jamabandi of Samvat Year 2042 to 2045 one-half share of the land in dispute stands in the name of appellants whereas remaining one-half stands in the name of Shri Ladu. Similar is the position in the Jamabandies of the Samvat Years 2046 to 2049, 2050 to 2053 and 2054 to 2057.
(vi) In the Jamabandi of the Samvat Year 2058 to 2061, one-half share of the land in dispute stands in the khatedari of appellants whereas remaining one-half of the land initially stood in the khatedari of Shri Ladu and as a consequence of mutation order dated 1.2.2008 names of respondents No.1 to 7 were entered in place of Shri Ladu on the basis that on the death of Shri Ladu by inheritance respondents No.1 to 7 became khatedar-tenant in his place.
(vii) The respondents No.1 to 7 claiming to be khatedar-tenant of undivided one-half share of the land in dispute sold the same to respondent No.8-Shri Suwa by means of a registered sale deed dated 18.5.2010 (sale deed in dispute) in consideration of Rs.70,000/-.
13. It is thus clear that although whole of the land in dispute was sold by respondent Shri Buddha and late Shri Mangla by way of registered sale deed dated 3.11.1959 to the father of appellants but even then one-half share of the land always stood entered in the name of Shri Ladu (one of the original khatedar-tenant) in relevant record and subsequently it was entered in the name of respondents No.1 to 7. In these back ground facts it is to be considered what is the cause of action and what is the main or substantial or real relief in the present suit.
14. As whole of the land in dispute was never entered in the name of father of appellants in the relevant revenue record and after his death even in the name of appellants and name of Shri Ladu always remained entered in the record and only one-half share of the land was entered in the name of Shri Nizam and thereafter in the name of appellants, I am of the considered view that unless the appellants obtain a decree of declaration to the effect that by means of sale deed dated 3.11.1959 khatedari rights in whole of the land accrued initially in favour of late Shri Nizam and after his death in their favour and name of Shri Ladu remained wrongly entered in the revenue record and thereafter name of respondents No.1 to 7 was also wrongly entered, the sale deed dated 18.5.2010 executed by respondents No.1 to 7 in favour of respondent No.8 to the extent of one-half share of Shri Ladu, can not be held to be without any authority and void, ineffective and inoperative to the rights of appellants and liable to be canceled. It is an admitted fact that Shri Ladu also was khatedar-tenant of one-half share of the land in dispute, therefore, it is for the appellants to prove that he died issue-less in the year 1958 and his share of the land also devolved on respondent Shri Buddha and late Shri Mangla and they were entitled to sale one-half share of Shri Ladu also to the father of appellants. The appellants can have a right to get the sale deed dated 18.5.2010 canceled only if it is found by a competent court that initially their father Shri Nizam was khatedar-tenant and after his death appellants became khatedar tenant of whole of the land in dispute. It is therefore, more than clear that the main or substantial or real relief claimed by the appellants is that they may be declared khatedar-tenant of whole of the land. As the land in dispute is an agricultural land, such declaration can be granted only by a revenue court. Section 88 of the Rajasthan Tenancy Act provides for filing of a suit for declaration by a person claiming to be a tenant in respect of his right as a tenant or for declaration of his share in the joint tenancy. The suit covered by Section 88 of the Act is included at Item No.5 in the IIIrd Schedule appended to the Tenancy Act. Thus, in respect of a matter covered by the aforesaid item in the IIIrd Schedule the revenue court alone has exclusive jurisdiction to entertain a suit for declaration of the plaintiffs' right as a tenant of agricultural land. According to provisions of Section 207 of the Act, the jurisdiction of the revenue court to try a suit of the nature specified in Item No.5 relating to agricultural tenancy would be based on the cause of action for filing such suit. In the facts of the case the relef regarding cancellation of sale deed dated 18.5.2010 at the most can be said to be an ancillary/consequential relief to the main relief of declaration of khatedari rights. In the light of the well settled legal position, it cannot be disputed that if the main relief can be granted only by a revenue court, it can grant ancillary/consequential relief also. In my opinion, if the competent revenue court comes to a conclusion that the appellants are entitled to be declared khatedari-tenant of whole of the land in dispute, it can also held that the sale deed dated 18.5.2010 is without any legal authority and void, ineffective and inoperative to the rights of the appellants and it is liable to be cancelled.
15. Apart from claiming khatedari rights on the basis of sale deed dated 3.11.1959, appellants have also averred that they have acquired khatedari rights in whole of the land in dispute by way of adverse possession as they are in continuous possession of it for last 50 years. It is thus, clear that in the alternative, the appellants are claiming khatedari rights on the basis of adverse possession also. I am of the considered view that if khatedari rights can legally be accrued in an agricultural land by adverse possession, such declaration can be made only by a revenue court and not by a civil court.
16. It is well settled that if a case comes within the purview of Order 7 Rule 11 CPC only the plaint is liable to be rejected and the suit itself cannot be dismissed on that account but in the present case, the learned Court below has wrongly dismissed the suit itself. Therefore, the impugned judgment and decree is liable to be modified accordingly.
17. Consequently, the impugned judgment and decree dated 17.1.2011 passed by Additional District Judge, Beawar in Civil Suit No. 71/2010 is modified in the manner that the plaint filed by the plaintiff-appellants is rejected under the provisions of Order 7 Rule 11 CPC and this appeal being devoid of any merit is, hereby, dismissed without any order as to costs.
Stay application also stands dismissed and disposed of.
(PRASHANT KUMAR AGARWAL), J teekam All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Teekam Khanchandani Private Secretary