Rajasthan High Court - Jodhpur
Hastimal And Ors vs Mrs .Pushpa Devi And Ors on 20 November, 2020
Author: Arun Bhansali
Bench: Arun Bhansali
(1 of 7) [CR-84/2017]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision Petition No. 84/2017
1. Hastimal S/o Laxminarain, R/o Plot No. - 214, Sector-C,
Khasra No. 126, Bapu Nagar, Jhalamand, Jodhpur.
2. Sunita W/o Hastimal, R/o Plot No. - 215, Secot-C, Khasra
No. 216, Bapu Nagar, Jhalamand, Jodhpur.
3. Hiradevi W/o Bijraj, R/o Plot No. 325, Sector-A, Bapu Nagar,
Jhalamand, Jodhpur. Defendatns 01-03
----Petitioners
Versus
1. Mrs. Pushpa Devi W/o Late Bhagwati Prasad Ji, R/o Plot No.
5-398, Kamla Nehru Nagar, Iii Extension, Chandra Bhakhar,
Jodhpur. (Plantiff)
2. Jodhpur Vidhyut Vitran Nigam Limited, Through Assistant
Engineer, Aen Cb Jhalamand, Jodhpur Proforma Defndents
No.4
3. Jodhpur Development Authority Jodhpur Its Commissioner
Jodhpur, Proforma Defndents No.5.
----Respondents
For Petitioner(s) : Mr. K.C. Pitawat.
For Respondent(s) : Mr. Narendra Thanvi
Mr. Aniket Tater for Mr. Manoj Bhandari.
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 20/11/2020 This revision petition is directed against the order dated 16.1.2017 passed by the trial court, whereby, the application filed by the petitioners under Order VII Rule 11 CPC has been rejected.
The respondent No.1 - plaintiff filed a suit for mandatory injunction, for removal of encroachment, demolition of construction, mesne profit and permanent injunction. It was inter alia indicated that the suit plot was purchased by the plaintiff on 13.8.2009, however, the defendants No.1 to 3 have trespassed over the plot in question and were seeking to raise construction by (Downloaded on 20/11/2020 at 08:30:42 PM) (2 of 7) [CR-84/2017] collecting material. The respondent - Jodhpur Vidhyut Vitran Nigam Limited (JDVVNL) has given electricity connection. Based on the said averments, the relief of possession and mesne profit etc. was sought alongwith demolition of the construction raised.
The defendants - petitioners filed an application under Order VII Rule 11 CPC inter alia with the submissions that the plaintiff has sought relief pertaining to an agriculture land and as such the suit was barred under Section 207 of the Rajasthan Tenancy Act, 1955 ('the Act of 1955').
The application was contested by the plaintiff inter alia with the submissions that the land in question falls within the limits of Jodhpur Metro area, is within the jurisdiction of Jodhpur Development Authority ('JDA'), around the plot in question, entire residential colony is situated and the same is being used for residential purposes and, therefore, the application filed by the defendants deserves dismissal.
The trial court after hearing the parties came to the conclusion that as the plaintiff had indicated in the plaint that the plot was being used for residential purpose and is within the JDA limits and the defendants have taken residential electricity connection, the said aspect could only be decided after the evidence is led by the parties and based on its observations, rejected the application filed by the defendants.
Feeling aggrieved, the present revision petition has been filed, wherein, a Co-ordinate Bench of this Court by order dated 17.5.2017, ordered for issuance of notices and stayed further proceedings. Whereafter, on 26.08.2017 after hearing the parties, the petition was admitted and the same was ordered to be listed for final disposal.
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(3 of 7) [CR-84/2017] In view of the directions of the Court, the matter is taken up for final disposal.
Learned counsel for the petitioners submitted with reference to averments made in para-1 of the plaint that from a bare reading of the said para, it is apparent that the suit property was an agricultural land and once the suit pertains to an agricultural land, the same was barred under the provisions of Section 207 of the Act of 1955 and, therefore, the trial court was not justified in rejecting the application / deferring the issue for deciding after the evidence is led by the parties. It was submitted that merely on account of use of the land in question, the maintainability of the suit cannot be determined by the court as admittedly the nature of the land is agricultural.
Reliance has been placed on Lal Singh Jhala v. Panna Lal :
2016(3) DNJ (Raj.) 1461.
Learned counsel for the respondent - plaintiff vehemently opposed the submissions. It was submitted that the averments made in the plaint have to be read meaningfully, the plaintiff has clearly indicated that the land was being used for residential purpose and was within the JDA limits and, therefore, in those circumstances from reading of the plaint, it could not be said that the suit pertains to an agriculture land and, consequently, the trial court was justified in rejecting the application.
It was emphasized with reference to certain documents filed alongwith reply to the stay application that the land in question has been set apart in the name of JDA and the plots around the plaintiff's plot, have been converted by the JDA and in those circumstances, it cannot be said that the land in question continues to be an agriculture land so as to accept the plea of the (Downloaded on 20/11/2020 at 08:30:42 PM) (4 of 7) [CR-84/2017] defendants regarding the suit being barred under Section 207 of the Act of 1955.
Further submissions were made that looking to the nature of issues raised before the trial court, the trial court was justified in holding that the aspect pertaining to the maintainability of the suit based on the jurisdiction of the court could only be decided after the evidence is led by the parties and, therefore, the order impugned does not call for any interference.
Reliance has been placed on Chandra Prakash v. Amba Lal & Ors.: 2014 (2) Civil Court Cases 309 (Rajasthan) and Balkishan & Anr. v. Manoj Kumar & Ors.: 2014(2) Civil Court Cases 635 (Rajasthan).
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 reproduce para-1 of the plaint, which reads as under:-
"1- ;g gS fd oknhuh us fnukad 16-085-2009 dks /kehpan iq= Jh dkuey tkfr lSu] fuoklh& IykWV la[;k 16 ^,* fo|k Hkou] jkbZdkckx tks/kiqj ls tfj;s vke eq[r;kj Hkxorh izlkn iq= Jh lkaxhnkuth] tkfr iaokj] fuoklh deyk usg: uxj] lSu dkWyksuh ds ihNs] tks/kiqj ls tjh, cspkuukek ds /kehZpan dk [kjhn"kqnk] dCtk"kqnk] jftLVªh"kqnk] [kkrsnkjh"kqnk] dCtk&dkLr dk [ksr [kljk ua- 126] jdck 02 ch?kk] d`f'k Hkwfe] okds xkao >kyke.M] iVokj {ks= >kyke.M] rg- o ftyk tks/kiqj dks [kjhn fd;k x;k FkkA mDr Hkwfe dk cspkuukek dh izfr bl okn i= ds lkFk layXu gSA bl rjg bl Hkwfe dh okfnuh fn- 13@8@2009 ls crkSj ekfyd [kkrsnkj gSA Hkweh dk mi;ksx vkoklh; vk jgk gS rFkk J.D.A. dh lhek esa gS nksuksa Hkw&[k.Mksa dh fder 98]107@&:- gSA"
(emphasis supplied) (Downloaded on 20/11/2020 at 08:30:42 PM) (5 of 7) [CR-84/2017] A perusal of the above averments in the plaint reveals that the plaintiff indicated that the suit plot was of his possession and cultivation (dCtk&dkLr), the same was an agricultural land ( d`f'k Hkwfe) and since 13.8.2009, the plaintiff was its owner tenant ( ekfyd [kkrsnkj). Further it has been indicated that the land was being used for residential purpose and is within the JDA limits.
The averments contained in the plaint as quoted above clearly depicts the land in question to be an 'agricultural land'.
Learned counsel for the plaintiff - respondent attempted to make submissions that the reference of the land being agricultural and plaintiff being in possession - cultivation pertain to its status at the time when the land was purchased and relied on the fact that in the year 2013, the same has been set apart for JDA and as the suit has been filed in the year 2015, it cannot be said that the land continues to be an agricultural land.
The reliance placed by learned counsel on the aspect of the land purportedly having been set apart for JDA, does not by itself change the nature of the plot in question, inasmuch as, the action of setting apart as indicated in the jamabandhi produced by the plaintiff, if at all would always be confined to the government land and would have no implication, insofar as, the private land is concerned, inasmuch as, the procedure as prescribed under Section 90-A of the Land Revenue Act, 1956 ('the Act of 1956') for the purpose of conversion of the land, which is agriculture in nature, has to be undergone before the same could be put to use for the purpose other than the agriculture purpose.
Learned counsel for the respondent - plaintiff fairly conceded that though the proceedings were initiated by plaintiff under (Downloaded on 20/11/2020 at 08:30:42 PM) (6 of 7) [CR-84/2017] Section 90-A of the Act of 1956, the plot in question has so far not been converted.
Further the fact that despite the so-called setting apart on 24.6.2013 in favour of the JDA, the patta produced by the respondent itself has been issued on 21.10.2013 also fortifies the fact that conversion needs to take place even if setting apart, as claimed, has taken place.
In view thereof, the fact that the land in question, even if in the plaint the same has been indicated with reference to point of time when the same was purchased by the plaintiff, its nature continues to be unaltered i.e. the same continues to be unconverted agricultural land.
In view of the averments in the plaint qua the nature of the suit land, the trial court apparently was not justified in deferring the issue till the evidence is led by the parties.
So far as the reliance placed by counsel for the respondent - plaintiff on judgment in the case of Chandra Prakash (supra) is concerned, in the said case, the land was already converted and in the case of Balkishan (supra), the nature of averments made in the plaint, did not make out a case of rejection under Order VII Rule 11 CPC, as it is well settled that the said aspect has to be determined based on the averments contained in the plaint only. As such the said judgments have no application to the facts of the present case.
This Court in the case of Lal Singh Jhala (supra) after considering various judgments and relying on judgment in the case of Premi Devi v. Deva Ram & Ors.: 2009 (1) DNJ (Raj.) 410 inter-alia came to the conclusion that the actual use of the land is (Downloaded on 20/11/2020 at 08:30:42 PM) (7 of 7) [CR-84/2017] inconsequential for determining the jurisdiction of the court and same has been to be decided based on the nature of the land.
In view of the above factual and legal position, apparently as the suit land is an agricultural land as per the plaint averments, the suit was barred under the provisions of Section 207 of the Act of 1955 and trial court was, therefore, not justified in rejecting the application filed by the petitioners - defendants.
Consequently, the revision petition filed by the petitioners is allowed. The order dated 16.1.2017 passed by the trial court is set aside. The application filed by the petitioners under Order VII Rule 11 CPC is allowed. The plaint filed by the respondent No.1 - plaintiff in Civil Original Suit No.64/2015 pending before the Court of Civil Judge (Junior Division) No.7, Jodhpur Metro, shall stand rejected.
In the circumstances of the case, exercising powers under Order VII Rule 10 CPC, the trial court shall return the plaint to the plaintiff for being presented before the competent Revenue Court.
Looking to the fact that the suit was filed by the plaintiff in the year 2015 and the same has been remained pending before this Court for over three years, it is expected of the Revenue Court to proceed with the matter with utmost expedition.
(ARUN BHANSALI),J 51-Sumit/-
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