Rajasthan High Court - Jodhpur
Amu Devi And Anr vs Kheta Ram And Ors on 11 September, 2019
Author: Goverdhan Bardhar
Bench: Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil First Appeal No. 269/2017
1. Smt. Amu Devi D/o Moti Ram W/o Mangla Ram, By Caste
Jat, R/o Village Palli, Tehsil Lahowat, Dist. Jodhpur.
2. Smt. Madhu Devi D/o Moti Ram W/o Surja Ram, By Caste
Jat, R/o Village Sirmandi, Tehsil Osian, Distt. Jodhpur.
----Appellants
Versus
1. Kheta Ram S/o Moti Ram, By Caste Jat, R/o Village
Jambheswer Nagar, Tehsil Lohawat, Distt. Jodhpur.
2. Lrs Of Bhoora Ram S/o Mota Ram,
3. Lrs Of Smt. Sugani W/o Subhash Bisnoi
----Respondents
For Appellant(s) : Mr. C.R. Jakhar
For Respondent(s) : Mr.S.M. Parihar
HON'BLE MR. JUSTICE GOVERDHAN BARDHAR
Judgment 11/09/2019 The appellant plaintiffs have filed the present appeal against the judgment and decree dated 18.02.2017 whereby, the application filed by the defendant no.3 under Order 7 Rule 11 CPC has been allowed and suit of the plaintiffs has been rejected.
Brief facts of the case are that the appellant plaintiffs filed a suit for cancellation of sale deed, declaration and injunction against the respondent defendants stating therein that the land bearing Khasra No. 2840 area 23 bigha 3 biswa, Khasra NO. 2847 area 39 bigha 6 biswa total 62 bigha 9 biswa was in khatedari of their father Moti Ram. After death of Moti Ram, this land was wrongly entered in the name of Kheta Ram and Bhoora Ram. It (Downloaded on 13/09/2019 at 08:35:49 PM) (2 of 6) [CFA-269/2017] was averred that on the basis of succession, though the plaintiffs being daughters of Moti Ram are also the successors alongwith Kheta Ram and Bhoora Ram, as such the sale deed of half share of land executed by Bhoora Ram in favour of defendant no.3 Smt. Sugni is illegal and same is liable to be cancelled. It was also prayed that the plaintiffs may be declared khatedar owner of the disputed land and injunction may be passed against the defendants not to interfere in the possession of the plaintiffs.
After service of summons of the suit, an application under Order 7 Rule 11 CPC was filed on behalf of defendant no.3 to the effect that the suit for cancellation of instrument can be filed by the parties to the sale deed or the person claiming under the same. The plaintiffs claimed 1/2 - 1/2 share in the disputed land and prayer for declaration and injunction which relief can only be granted by revenue court under Section 207 of the Rajasthan Tenancy Act and Civil Court has no jurisdiction and prayed for rejection of the plaint.
The appellant also filed a revenue suit for declaration and permanent injunction in the court of Assistant Collector, Phalodi against Smt. Sugni and others. In that suit, the defendant Sugni filed an application under Order 7 Rule 11 CPC and the Assistant Collector, Phalodi allowed the application and rejected the suit vide order dated 30.09.2016 holding that the suit is barred by law. Learned trial court after hearing the arguments on application, allowed the application vide order dated 18.02.2017 and rejected the suit.
Learned counsel for the appellants argued that the learned trial court has failed to consider that the application filed by respondent defendant Smt. Sugni under Order 7 Rule 11 CPC in (Downloaded on 13/09/2019 at 08:35:49 PM) (3 of 6) [CFA-269/2017] the Revenue suit No. 15/2015 was allowed by the Assistant Collector holding the suit to be barred by law, therefore, the appellants cannot be deprived of taking recourse of law. The disputed land belongs to father of the plaintiffs and they are legal heirs of first category. It is argued that the main relief claimed in the suit is cancellation of sale deed and that relief can be granted by Civil Court, therefore, the suit cannot be rejected on this ground.
Per contra, counsel for the respondent defendant argued that the Civil Court cannot grant any relief to the plaintifs until the khatedari right of the plaintiff appellants are decided by the Revenue Court as the exclusive jurisdiction to declare the khatedari right vests in the Revenue Courts. Hence, the impugned order passed by the learned trial court is justified and does not call for any interference.
I have heard learned counsel for the parties and perused the impugned order.
The provisions of Order 7 Rule 11 of CPC reads as under:-
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;(Downloaded on 13/09/2019 at 08:35:49 PM)
(4 of 6) [CFA-269/2017]
(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 from 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." Section 207 of the Tenancy Act, 1955, bars the jurisdiction of Civil Court, in the following words:-
"207. Suits and applications cognizable by revenue court only-(1) All suits and application of the nature specified in the Third Schedule shall be heard and determined by a revenue court. (2) 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.
Explanation-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 could have granted."
(Downloaded on 13/09/2019 at 08:35:49 PM)
(5 of 6) [CFA-269/2017] A reading of Section 207 of the Act clarifies that the declaration of right of inheritance is a determination of civil or statutory right. In the opinion of this Court the Civil court may decree the relief prayed by the petitioners only if it is first determined that the petitioners are entitled to khatedari rights in the suit property. This Court finds that under the provisions of the Tenancy Act, the jurisdiction to declare khatedari rights vests exclusively with the revenue courts, and only after such determination may the civil court proceed to decree the relief as prayed. The explanation of Section 207 clarifies that if the cause of action in respect of which relief is sought can be granted only by the revenue court, then it is immaterial that the relief asked from the civil court is greater than, or in addition to or is not identical with the relief which the revenue court would have granted. Thus, the civil court may not grant relief until the khatedari rights of the petitioners have been decreed by a revenue court.
Indisputably, the defendant Smt. Sugani raised an objection before the court below, however, the court below did not consider the provisions of Order 7 Rule 10A CPC in correct perspective. Order 7 Rule 10 C.P.C. provides that subject to the provisions of Rule 10-A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted. Rule 10-A further provides that where, in any suit, after the defendant has appeared, the Court is of opinion that the plaint should be returned, it shall, before doing so, intimate its decision to the plaintiff. Sub-rule (3) of Rule 10-A provides that where an application is made by the plaintiff under Sub-rule (2), the Court shall, before returning the plaint and notwithstanding that the (Downloaded on 13/09/2019 at 08:35:49 PM) (6 of 6) [CFA-269/2017] order for return of plaint was made by it on the ground that it has no jurisdiction to try the suit.-(a) fix a date for the appearance of the parties in the Court in which the plaint is proposed to be presented, and (b) give to the plaintiff and to the defendant notice of such date for appearance.
At the stage of consideration of return of plaint under Order 7 Rule 10 CPC, the Court has to look into the plaint and averments therein. It is also necessary to read the plaint in a meaningful manner to find out the real intention behind the suit. Moreover presentation of plaint in the correct Court after its return is not a case of transfer. It is a case of lack of jurisdiction of the first Court. It is not continuation of proceedings initiated in wrong Court.
In view of above, the learned trial court has committed an error in rejecting the suit filed by the plaintiffs. Accordingly, this appeal is allowed. The impugned judgment and decree dated 18.02.2017 passed by learned Additional District Judge, Phalodi is set aside and the matter is remitted to the trial court with direction to decide the application filed under 7 rule 11 CPC afresh after hearing both the parties in the light of the provisions contained in Order 7 Rule 10 CPC. The parties are directed to remain present before the trial court on 23.10.2019.
The record of the trial court be sent back forthwith.
GOVERDHAN BARDHAR),J 82-BJSH/-
(Downloaded on 13/09/2019 at 08:35:49 PM) Powered by TCPDF (www.tcpdf.org)