Rajasthan High Court - Jaipur
Kishan Lal S/O Late Shri Rehman vs Smt. Shanti Devi Mishra W/O Late Shri Ram ... on 27 May, 2019
Author: Prakash Gupta
Bench: Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Revision Petition No. 123/2019
Kishan Lal S/o Late Shri Rehman, B/c Cheeta, age 48 years,
resident of Lohagal, Tehsil & District Ajmer
----Petitioner/Defendant
Versus
1. Smt. Shanti Devi Mishra w/o late Shri Ram Mohan Mishra,
aged about ...... years, resident of e-233, opp. Ramsmrati Park-
4, Shastri Nagar, Lohagarh, Ajmer.
2. Dr. Ashok Kumar Mishra S/o late Shri Ram Mohan Mishra,
aged about ...... years, resident of e-233, opp. Ramsmrati Park-
4, Shastri Nagar, Lohagarh, Ajmer.
3. Smt. Vibha Mishra w/o Shri Ashok Kumar Mishra, age
about ...... years, resident of e-233, opp. Ramsmrati Park-4,
Shastri Nagar, Lohagarh, Ajmer.
----Respondents/Plaintiff
4. Shri Suresh Pancholi S/o Shri Sher Singh Pancholi, B/c Teli, age 42 years, Resident of Moti Vihar Colony, Pushkar Road, Ajmer.
5. Shri Sanjay Sharma S/o shri Nand Kumar Ji Sharma, age 43 years, B/C Brahman, Resident of Moti Vihar Colony, Pushkar Road, Ajmer.
6. Javed Khan S/o Shri Ayub Kha, age 40 years, B/c Musalman, resident of Opp. Police Chouki, Pushkar Road, Ajmer.
----Performa Defendants
For Petitioner(s) : Mr. Rakesh Kumar
For Respondent(s) :
HON'BLE MR. JUSTICE PRAKASH GUPTA
Judgment / Order
27/05/2019
This revision petition under Section 115 CPC has been filed by the petitioner-defendant against the order passed by Civil Judge and Judicial Magistrate-1 Cadre, Ajmer, District Ajmer (hereinafter referred to as the "trial Court") whereby the "trial (Downloaded on 29/06/2019 at 04:05:57 AM) (2 of 8) [CRP-123/2019] Court" dismissed the application filed by the petitioner-defendant under Order 7 Rule 11 CPC.
Brief facts given rise to this revision petition are that the plaintiffs-respondents No.1 to 3 filed a suit for permanent injunction on the ground that plaintiffs are using a way for the last 25 years to access their property.
During the pendency of the suit, an application under Order 7 Rule 11 was filed by the petitioner-defendant for rejection of the plaint on the ground that the Civil Court had no jurisdiction to try the suit, as the land in question was an agriculture land. Thus, in terms of Section 207 of Rajasthan Tenancy Act, 1955, (hereinafter referred to as the "Act of 1955") and the 3rd scheduled appended to the said Act, only revenue Court had jurisdiction to try the suit. As such the suit is barred by law and, therefore, liable to be rejected.
The plaintiffs-respondents filed reply to the application wherein it was stated that the Civil Court has jurisdiction to try and decide the suit, as the suit involves determine the right to way based on easementary rights of the plaintiffs over the disputed land. Therefore, the application is liable to be dismissed.
After hearing both the parties, learned trial Court dismissed the application.
Hence, this revision petition.
It is submitted by the learned counsel for the petitioner-defendant that the trial Court committed serious illegality in dismissing the application. The ground on which the application was dismissed is not tenable. The trial Court has wrongly held that in view of the provisions contained in Section 251(2) of the "Act of 1955" Civil Court has jurisdiction to try the (Downloaded on 29/06/2019 at 04:05:57 AM) (3 of 8) [CRP-123/2019] present suit and as such the suit is maintainable. It is contended by the learned counsel for the petitioner that the dispute in the suit is related to a way which is already in existence. In view of Section 251(1) of the "Act of 1955" only the Tehsildar is competent to decide the dispute raised in the suit. Section 251(2) is not attracted in the present matter. The trial Court erred in holding the suit is maintainable. Learned counsel has placed reliance on Karan Singh Chouhan and Others Vs. Manu Bal Sikshan Sansthan, Soorsagar Jodhpur and others reported in 2018 (2) DNJ 676.
I have considered the submissions made by the learned counsel for the petitioner-defendant and have perused the impugned order dated 18.04.2019.
It is trite that while deciding the application under Order 7 Rule 11 only the averments made in the plaint and documents annexed thereto are to be considered.
Relevant portion of para 1 of the plaint is reproduced hereinbelow:-
" mDr Hkwfe ij vkoklh; fuekZ.k fd;s tkus gsrq fuekZ.k Lohd`fr fnukad 27-02-1997 ¼ckbZl Qjojh mUuhl lkS lRrkuosa½ dks ljiap xzke iapk;r pkfp;kokl iapk;r lfefr Jhuxj ftyk vtesj }kjk oknhx.k ds i{k esa iznku dh x;h FkhA ,oa mDr lEifRr ij oknhx.k fof/kor :i ls crkSj ekfydkuk gd vkt Hkh dkfct gSa ,oa mDr lEifRr ds if'peh fn'kk dh vksj 30QhV dk jkLrk vofLFkr gS ftlesa ls 15 QhV Lo;a oknhx.k us vius Lo;a dh mDr lEifRr@Hkwfe esa ls NksM+k x;k gS ,oa mDr lEifRr dk eq[; }kj if'pe fn'kk dh vksj fLFkr gS ,oa mDr fn'kk dh vksj fLFkr jkLrs ls gh oknhx.k viuh lEifRr esa vkus ,oa tkus gsrq mi;ksx ,oa miHkksx o"kksZa ls dj jgs gS ftldk lq[kkf/kdkj (Downloaded on 29/06/2019 at 04:05:57 AM) (4 of 8) [CRP-123/2019] oknhx.k dks izkIr gS] ,oa mDr pj.k esa of.kZr lEifRr dks okn esa vkxs py dj oknxzLr lEifRr ds uke ls lEcksf/kr fd;k tk;sxk A "
While rejecting the application the trial Court observed as under:
"15- ;g LFkkfir fof/k gS jktLo U;k;ky; dks vuU;r% mUgha ekeyksa dh lquokbZ dk vf/kdkj gS tks d`f"k Hkwfe ls lacaf/kr gks A ijarq 251¼2½ vf/kfu;e mDr LFkkfir fof/k dk ,d viokn Lo:i gS tgka d`f"k Hkwfe ds jkLrs ds laca/k esa flfoy U;k;ky; dks Jo.kkf/kdkj iznRr fd;k x;k gSA pwafd U;k;ky; }kjk mijksDr foospu ,oa fo'ys"k.k ls fookfnr d`f"k Hkwfe dks d`f"k Hkwfe gksuk ekuk x;k gS o gLrxr okn esa oknhx.k }kjk fookfnr Hkwfe ij vkokxeu gsrq iwoZ ls jkLrk vofLFkr gksuk vfHkdfFkr dj mDr jkLrs dk xr 25 o"kksZa ls mi;ksx miHkksx fd;k tkuk tkfgj fd;k gSA ,sls eas U;k;ky; ds fouez er esa /kkjk 251¼2½ vf/kfu;e esa izko/kkfur fof/k ds izdk'k esa orZeku U;k;ky; dks fookfnr jkLrs ds lEcU/k esa lquokbZ dh vf/kdkfjrk izkIr gS A 16- tgka rd izfroknh i{k ds bl rdZ dk iz'u gS fd izLrqr okni= esa oknh ,d vksj o"kZ 1995 esa fu"ikfnr fd;s x;s djkj ds vk/kkj ij fookfnr jkLrs ds fo|eku~ gksus dk vfHkopu djrk gSa ogha nwljh vksj oknh jktLo vfHkys[k esa mDr jkLrs dk vadu gksuk tkfgj dj fookfnr Hkwfe dks vke jkLrk gksuk tkfgj djrk gS rks bl lEcU/k esa U;k;ky; ds fouez erkuqlkj okLro esa ekSds ij okn i= esa of.kZr vfHkopukuqlkj dksbZ jkLrk fo|eku gS vFkok ugha ;k mDr jkLrs ds lEcU/k esa oknhx.k ds i{k esa dksbZ lq[kkpkj fo|eku~ gS vFkok ugha ;k mDr fookfnr jkLrs ds lEcU/k esa jktLo vfHkys[k esa dksbZ vadu gS ;k ugha vkfn iz'u lk{; ij voyfEcr gSa ftudk fu/kkZj.k okn ds fopkj.k ds nkSjku i{kdkjku }kjk izLrqr dh tkus okyh lk{; ds foospu ,oa fo'ys"k.k ds mijakr gh fd;k tk ldrk gSA vkns'k 7 fu;e 11 nh-iz-la- ds rgr izLrqr vkosnu i= dk fuLrkj.k djrs le; mijksDr iz'uksa ds lEcU/k esa fdlh Hkh :i esa fu'p;kRed er O;Dr fd;k tkuk fof/k lEer ugha gSA ,sls esa izfroknh i{k }kjk bl lEcU/k esa dh xbZ vkifRr bl izdze ij la/kkj.kh; ugha gS A tgka rd gLrxr okn ds lEcU/k esa /kkjk 251 ,- vf/kfu;e dks iz;ksT;rk dk iz'u gS rks bl lEcU/k esa U;k;ky; ds (Downloaded on 29/06/2019 at 04:05:57 AM) (5 of 8) [CRP-123/2019] fouez erkuqlkj oknh i{k }kjk izLrqr okn i= esa fookfnr Hkwfe ij vkokxeu gsrq xr 25 o"ksZa ls jkLrk vofLFkr gksus ds vfHkdFku fd;s gSa] orZeku okn esa dksbZ uohu jkLrk miyC/k djk;s tkus ckcr dksbZ vfHkopu@vuqrks"k vafdr ugha gS A ,sls esa U;k;ky; ds fouez er esa /kkjk 251 , vf/kfu;e orZeku okn ds rF;ksa ,oa ifjfLFkfr;ksa ij ykxw ugha gksrh gSA "
It is revealed that in the present suit plaintiffs- respondents have claimed right of way on the basis of easementary rights. Thus, the Civil Court has jurisdiction to try the present suit. The trial Court rightly interpreted Section 251(2) of the "Act of 1955" and held that in view of the said section present suit is triable by the Civil Court.
I am of the considered view that before filing the suit, an application under Section 251(1) of the Act of 1955 was not required to be filed in the first instance to the tehsildar and obtaining his summary decision. My aforesaid view is fortified by the Full Bench judgment of this Court passed in Badrilal and another Vs. Moda and others reported in AIR 1979 Rajasthan 142, which reads as under:
"13. So far as the second relief, namely, issuance of perpetual prohibitory injunction restraining the defendants from obstructing, disturbing and interfering with the plaintiff's right to take water in the drain through the land of defendant No. 1 is concerned, it is based on a right of easement as is clear from the averments made in para 4 of the plaint. Section 251 of the Act reads as under:
"251. Rights of way and other private easements:
(1) In the event of any holder of land, in actual enjoyment of a right of way or other easement or right, having without his consent, been disturbed in such enjoyment otherwise than in due course of law, the Tehsildar may, on the application of the holder of land so disturbed and after making (Downloaded on 29/06/2019 at 04:05:57 AM) (6 of 8) [CRP-123/2019] a summary inquiry into the fact of such enjoyment and disturbance order the disturbance to be removed or stopped and the applicant holder to be restored to such enjoyment, notwithstanding any other title that may be set up before the Tehsildar against such restoration.
(2) No order passed under this section shall debar any person from establishing such right or easement as he may claim by a regular suit in a competent civil court".
This section, only provides a summary procedure for determination of a private right of way and other easementary rights. This section would operate only when a private way is disturbed or obstructed.
14. It was held in Baksha v. Gokaldan (1957 Raj LW 188) that remedy referred to in Section 251, is a summary one, and does not debar a suit in a competent civil court. Learned Judge observed:
"sub-section (2) of Section 251, therefore, overrides Section 207 and if an unsuccessful party can ultimately go to a civil court, there is no reason why the plaintiffs should not also in the first instance go to a civil court".
Chhangani, J., as he than was, also examined the provisions of Section 251 of the Act in Nenu Ram v. Smt. Jaswanti & Co.
(1960 Raj LW 376).
15. We are tempted to quote the following observations of the learned Judge:
"The provisions of the Rajasthan Tenancy Act, generally speaking, purport to create suits for rights to be conferred by that Act as exclusively triable by a revenue court, but do not seek to embrace suits for the enforcement of rights arising under other laws, such as the Pre-emption Act or the Easements Act. Sub-section (2) further clarifies that position. According to this subsection, an order of Tehsilar under Sub- section (1) shall not debar a person from establishing such rights and easements as he may claim by a regular suit in a competent civil court. The use of the expression "No......shall debar......" is suggestive of the fact that a right to file a suit in the civil court, in the first instance, stands automatically recognised and a previous application to the Tehsildar and obtaining his summary decision is not a condition precedent to the filing of a civil suit.
(emphasis supplied) The relief on the basis of a right of easement can only be granted by a civil court and not (Downloaded on 29/06/2019 at 04:05:57 AM) (7 of 8) [CRP-123/2019] by a revenue court. Section 207 of the Act lays down that only those suits and applications of the nature specified in the Third Schedule shall be heard and determined by a revenue court. Therefore, for the purpose of granting the relief on the basis of an easementary right the proper forum is that of a civil court.
16. It is, therefore, clear that out of the two main reliefs referred to above, one can be granted by a revenue court and the other can be granted by a civil court. In view of the two main reliefs asked for by the plaintiffs, in our opinion, it is a suit dealing with composite matters. Section 242 of the Act makes provisions for dealing with such composite matters. It runs as under:
"Section 242. Procedure when plea of tenancy rights raised in civil courts: (1) If, in any suit relating to agricultural land instituted in a civil court, any question regarding tenancy right arises and such question has not previously been determined by a revenue court of competent jurisdiction, the civil court shall frame an issue on the plea of tenancy and submit the record to the appropriate revenue court for the decision of that issue only.
Explanation :-- A plea of tenancy which is clearly untenable and intended solely to oust the jurisdiction of the civil Court shall not be deemed to raise a plea of tenancy.
(2) The Revenue Court, after reframing the issue, if necessary, shall decide such issue only, and return the record together with the finding thereon, to the Civil Court which submitted it.
(3) The Civil Court shall then proceed to decide the suit, accepting the finding of the Revenue Court on the issue referred to it. (4) The finding of the Revenue Court on the issue referred to it shall, for the purposes of appeal, be deemed to be a part of the finding of the Civil Court." In this case, the plaintiffs have joined more than one causes of action in the suit, namely, (i) pertaining to draw l/6th water from the well and (ii) relating to take water in the existing drain through the land of defendant No. 1 on the basis of right of easement. We have already held that one cause of action is such that it is not triable by a Revenue Court. It is, therefore, clear that that portion of claim made in the plaint is triable by a Civil Court and the other portion is triable by a Revenue Court. In these circumstances, we are of the (Downloaded on 29/06/2019 at 04:05:57 AM) (8 of 8) [CRP-123/2019] opinion that the suit could rightly be taken cognizance of by a Civil Court and what would be necessary is to refer the issue regarding the claim to draw l/6th water from the well which relates to the tenancy rights, to the Revenue Court, if at all it is found necessary to do so."
In view of the above discussion, the impugned order passed by the Court below do not suffer from any material irregularity or error of jurisdiction and as such the same do not call for any interference. Hence, the revision Petition is dismissed.
(PRAKASH GUPTA),J Mohit Rohila /44 (Downloaded on 29/06/2019 at 04:05:57 AM) Powered by TCPDF (www.tcpdf.org)