Rajasthan High Court - Jodhpur
Shiv Karan @ Sheya Karan vs Ram Karan And Ors on 28 August, 2018
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision No. 111/2015
Shiv Karan @ Sheyo Karan s/o Shri Mani Ram, by caste Vishnoi,
aged about 66 years, resident of Village Malsar, Tehsil
Raisinghnagar, District Sri Ganganagar.
----Petitioner
Versus
1. Ram Karan S/o Shri Mani Ram, by caste Vishnoi, resident of
Chak 19, N.P. Tehsil Raisinghnagar, District Sri Ganganagar.
2. Bhajan Lal S/o Shri Mani Ram, by caste Vishnoi, resident of
Village Malsar, Tehsil Raisinghnagar, District Sri Ganganagar.
3. Shiv Kumar S/o Shri Harup, by caste Vishnoi, resident of Ward
No. 9, Raisinghnagar, District Sri Ganganagar.
4. Ram Kumar S/o Shri Harup, by caste Vishnoi, resident of
Chak 19 N.P., Tehsil Raisinghnagar, District Sri Ganganagar.
5. Ved Prakash S/o Shri Harup, by caste Vishnoi, resident of
Chak 19 N.P., Tehsil Raisinghnagar, District Sri Ganganagar.
----Respondents
For Petitioner(s) : Mr. N.L. Joshi
For Respondent(s) : Mr. Avinash Bhati
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 28/08/2018 This revision petition is directed against order dated 30.01.2015 passed by Civil Judge, Raisinghnagar, whereby, the application filed by the petitioner under Order VII, Rule 11 CPC has been rejected.
The respondent-plaintiff filed a suit seeking declaration regarding Will dated 28.03.1989 claiming the same to be null and void and thereafter seeking recording of the agricultural land in the name of all the legal representatives of deceased Mani Ram.
(2 of 3) [CR-111/2015] The petitioner filed an application under Order VII, Rule 11 CPC, inter alia, on the ground that the suit was barred under provisions of Section 207 of the Rajasthan Tenancy Act, 1955 ('the Act') as the suit pertained to the agricultural land. Further submissions have been made that the effect of the Will can be examined by the Revenue Court and in case it is found that the Will has been executed beyond competence, the same can always be held to be ineffective.
The application was contested by the plaintiff. After hearing the parties, the trial court came to the conclusion that the validity and genuineness of the Will can only be decided by a competent Civil Court and, consequently, rejected the application filed by the petitioner.
It is submitted by learned counsel for the petitioner that the trial court fell in error in rejecting the application filed by the petitioner. It was submitted that admittedly the dispute pertained to the agricultural land and even if the plea raised pertained to the Will executed by Mani Ram, as cancellation of the Will was not sought in the plaint, the suit was maintainable before the Revenue Court and in view of express provisions of Section 207 of the Act the suit was barred and, therefore, the trial court committed error in rejecting the application.
Learned counsel for the respondents supported the order impugned. It was submitted that the plaintiff had specifically questioned the genuineness of the Will as is evident from the plaint and the issue could only be determined by the Civil Court and, therefore, the trial court was justified in rejecting the application.
(3 of 3) [CR-111/2015] I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
A bare look at the plaint reveals that it was the specific case of the plaintiff that the Will was not executed by Mani Ram, the same did not bear the thumb impression of Mani Ram and that defendant - Shiv Karan had concocted the Will and wanted to get the revenue land mutated in his name.
The submission made by learned counsel for the petitioner that as cancellation has not been sought, the suit itself with regard to the Will is incompetent, has no substance, inasmuch as, once the plea raised is that the Will is forged, there is no question of seeking cancellation of the document. It is only where the execution of a document is admitted and the competence is questioned, the cancellation can be sought, which is not the case.
As admittedly the respondent alleged that the Will in question is not genuine and is concocted, the said aspect can only be examined by a competent civil court as laid down by Hon'ble Supreme Court in the case of Suraj Bhan v. Financial Commissioner : (2007) 6 SCC 186 and Vimal Kumar Jain v. Mahaveer Prasad Jain : Civil Revision No. 18/2005, decided on 17.10.2005 at Jaipur Bench.
In view of the above facts and legal position, the order passed by the trial court cannot be faulted. There is no substance in the revision petition and the same is, therefore, dismissed.
(ARUN BHANSALI),J A.K. Chouhan/-53 Powered by TCPDF (www.tcpdf.org)