Rajasthan High Court - Jaipur
Jagdish Narain Pareek vs Kamlesh Jain And Ors on 2 June, 2017
Author: Prakash Gupta
Bench: Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Revision No. 225 / 2007
Jagdish Narain Pareek aged years, son of Late Shri
Mahadeo Prashad Pareek, Brahmin by caste, resident of Main
Market, Near STD, Brahampuri, Jaipur.
----Defendant-Petitioner
Versus
1. Kamlesh Jain son of Shri Ghan Shyam Lal Chaudhary, aged
56 years, resident of S-4-A, Kabir Marg, Bani Park, Jaipur.
----Plaintiff-Respondents
2. Shri Vikram Golecha, Golecha Garden, Agra Road, Jaipur, Director, M/s Siyaram Estate Private Limited.
3. M/s Siyaram Estate Private Limited through authorised representative, Shri Bhanwar Singh yadav, Golecha Garden, Agra Road, Jaipur.
4. Smt. Shanti Devi Sharma wife of Shri Shiv Dayal Sharma, resident of D-224, Tulsi Marg, Bani Park, Jaipur.
Defendant-(Respondent).
_____________________________________________________ For Petitioner(s) : Mr. Ravi Bhojak For Respondent No.1 : Mr. Kamlesh Jain _____________________________________________________ HON'BLE MR. JUSTICE PRAKASH GUPTA Judgment 02/06/2017
1. This revision petition is directed against the order dated 03.10.2007 passed by the learned Addl. District Judge (Fast Track No.2), Jaipur District, Jaipur rejecting an application under Order 7 Rule 11 filed by the defendants in Civil Suit No.200/2007 Kamlesh Jain Vs. Vikram Golechha & Others.
2. The brief facts relevant for the present purpose are that the aforesaid suit was filed by the plaintiff Shri Kamlesh Jain with the (2 of 9) [CR-225/2007] averments that he had purchased a piece of agricultural land admeasuring 13 Bighas from Smt. Moti Devi w/o Shri Mohan Lal Jain and Smt. Urmila w/o Shri Bhanwar Lal Chittora in 1978 through a registered sale deed dated 07.06.1978. These two ladies had purchased the aforesaid land from Shri Jagdish Narayan Pareek s/o Shri Mahadev Prasad Pareek in 1975 through a registered sale deed dated 08.08.1975. He has been in possession of the said land since 1978 and has also been paying land revenue since then but he could not be able to mutate his name in the revenue authorities. On 25.02.2006, Shri Jagdish Narayan Pareek dishonestly and with intent to cause fraud resold the aforesaid 13 Bigha land to one Smt. Shanti Devi Sharma w/o Shri Shiv Dayal Sharma and executed a fictitious sale deed on 01.03.2006. Smt. Santi Devi Sharma further sold the said land to M/s Siyaram Estate Pvt. Ltd. Jaipur on 28.05.2006 and on the basis of these fraudulent and fictitious sale deeds, revenue authority has also mutated the land in the revenue records in the name of M/s Siyaran Estate Pvt. Ltd. In this factual background, he sought the following three reliefs:-
(i) a declaration be granted in his favour to the effect that he is the owner of the said 13 Bigha land and all the three sale deeds dated 01.03.2006, 29.05.2006 and 12/14.09.2006 executed subsequently by Shri Jagdish Narayan Pareek and Smt. Moti Devi Sharma are null and void as against his interest in the said land;
(ii) the defendants No.1 to 4 be restrained through a permanent injunction from interfering in the use and enjoyment of the aforesaid land and creating any third party interest in the (3 of 9) [CR-225/2007] whole parcel of the and admeasuring 12.51 hectare of which the said 13 Bigha land is a part;
(iii) direction may be issued to cancel any changes made in the revenue records made at the behest of the defendants during the years 2006 and 2007.
3. In response to the aforesaid suit, two separate applications- one by defendant No.1 and 2 and another by defendant No.3 and 4- were filed under Order 7 Rule 11 CPC contending that as per section 207 of the Rajasthan Tenancy Act, 1955, the suit is maintainable only in the revenue court and the jurisdiction of the civil suit is barred, therefore the suit is liable to be rejected.
4. After hearing the rival contentions, the learned court below concluded that in this matter prima facie the court has to see whether the sale deed dated 07.06.1978 is in existence and it has validly been executed and whether or not the plaintiff has got right in the disputed property through this instrument. In these circumstances wherein the question of existence and execution of a sale deed is involved, the civil court has jurisdiction and therefore, it cannot be said that revenue court has jurisdiction. On the aforesaid reasoning the learned court below rejected the application. Hence, this revision petition.
5. It is contended on behalf of the defendant-petitioner that the Plaintiff-respondent No.1 has filed the suit apparently for the declaration of his title over agriculture land and for direction for correction of entries in the revenue record and not for cancellation of the sale deeds executed in favour of defendant No.1, 2 and 3.
(4 of 9) [CR-225/2007] The relief sought in the suit are cognizable by the revenue courts and under section 207 read with third schedule of the Rajasthan Tenancy Act, 1955, jurisdiction of civil court is barred for the sit regarding agricultural land in the which relief of declaration, injunction and for correction of entries in revenue record are sought. The learned counsel for the defendant- petitioner cited following judgments in support of his contention:
Mohan Lal v. Ratna AIR 1971 Raj 164, Bhanwar Sing v. Mst. Rammo 1998 WLC 392 (Raj), Ram Kripal Das ji Charitable Trust v. Phool Chand 2012 (3) WLC (Raj) 516; Vijay Singh v. Buddha 2012 (3) WLC (Raj.) 673; Ram Narayan v. Mangi Lal 2014 WLC (Raj.) UC 291; Chandra Deep Single v. Mamta Bisht 2016 (2) CCC 98 (Uttarakhand; Moti Lal v. Jagdish Prasad 2000 WLC (Raj.) UC 530 and Sisir Kana Guha v. Ayakar Grihanirman Samabaya Samity Ltd. & Anr., AIR 2002 Cal.247.
6. The Plaintiff-Respondent No.1 appeared in person and supported the order of the learned court below. He contended that the question of title can only be decided by a civil court and declaration as sought by him can only be passed by the civil court. He submitted following judgments in support of his contentions:
Suba Singh v. Mahendra Singh (1974) 1 SCC 418; Shyam Kumar v. Budh Singh 1977 WLN 51; Jaswant Singh v. Board of Revenue 1984 WLN 608; RSEB Jaipur v. Ram Babu 1987 RLR 173; CA No.1918 of 2007 Amar Nath v. Kewla Devi (SC) and CA No.776 of 2012 Horil v. Keshav (SC).
(5 of 9) [CR-225/2007]
7. I have considered rival submissions made by the learned counsel for the parties and also gone through the record and the judgments cited by the parties.
8. In Vijay Singh v. Buddha (supra), the legal position with regard to Order 7 Rule 11 has been summarized as under:-
(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 basis 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 (6 of 9) [CR-225/2007] 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.
(7 of 9) [CR-225/2007]
9. The legal position with respect to section 207 of the Rajasthan Tenancy Act, 1955 has also been summarized in Paragraph 11 of the aforesaid judgment as under:
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 scrutinized 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 (8 of 9) [CR-225/2007] 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.
10. In the case at hand, a bare perusal of the plaint filed by the Plaintiff- Respondent No.1 would show that the plaintiff has claimed three reliefs viz. (1) declaration of his title in the disputed agricultural land admeasuring 13 Bigha, (ii) grant of a perpetual injunction prohibiting any interference in the use and enjoyment of his rights in the said land and (iii) correction of entries in land records. All these reliefs have been enumerated in Schedule III of the Rajasthan Tenancy Act, 1955- particularly in Paragraphs 5, 23C and 35 of the said Schedule. Therefore, in my considered opinion, the suit is barred by section 207 of the Rajasthan Tenancy Act, 1955 read with Schedule III thereof and is liable to be rejected under Order 7 Rule 11 CPC.
11. The learned court below misdirected it as much as the learned court below stressed on the question of existence or otherwise of the evidence that would entitle the Plaintiff for the relief claimed by him instead of the relief claimed in the plaint which was germane for deciding the application under Order 7 Rule 11 CPC.
12. Consequently, revision is allowed. The impugned order dated 03.10.2007 is set aside. Suit No.200 of 2007 is liable to be (9 of 9) [CR-225/2007] rejected as the jurisdiction of the Civil Court is barred by section 207 of the Rajasthan Tenancy Act, 1955 and is so directed. Let the copy of this order be sent forthwith to the learned court below. No order as to cost.
(PRAKASH GUPTA), J.
Sanjay