Rajasthan High Court - Jodhpur
Lal Singh vs Panna Lal on 22 August, 2016
Author: Arun Bhansali
Bench: Arun Bhansali
1
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
:JUDGMENT:
S.B. CIVIL MISC. APPEAL NO.1644/2012
Lal Singh Jhala
v.
Panna Lal
Date of Judgment :: 22.8.2016
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. Sandeep Shah, for the appellant/s.
Mr. R.K. Thanvi, Senior Advocate assisted by
Mr. Narendra Thanvi, for the respondent/s.
-----
BY THE COURT:
This appeal under Order XLIII, Rule 1(u) CPC is directed against the judgment dated 23.7.2012 passed by the Additional District Judge No.2, Udaipur, whereby the appeal filed by respondent-plaintiff Panna Lal has been accepted and while setting aside the order dated 6.7.2012 passed by the Civil Judge (Jr.Div.), Gogunda ('the trial court'), by which application filed by the appellant-defendant under Order VII, Rule 11 CPC was accepted, the suit has been remanded back to the trial court.
The respondent filed a suit for permanent 2 injunction, inter-alia, with the averments that the plaintiff has been using land situated on by-pass at Gogunda for commercial use wherein his godown is constructed and business of various type of stone slabs and gitti is being conducted. It was also claimed that even before purchase of the property on the said land the business of stone was being conducted; the disputed land is Araji No.3593 ad measuring 14.5 Biswa and Araji No.3596 ad measuring 14.5 Biswa whose original khatedar was Savaji, who sold his half share to Panna Lal on 20.2.1970 and handed-over the possession; Panna Lal transferred the said property to Laxmi Lal on 14.2.1972 and the same has been recorded the name of Laxmi Lal and the present Araji number is 6491 ad measuring 0.1200 Htrs., which land has been transferred to the plaintiff on 12.12.2006 by Laxmi Lal and possession has been handed-over. It was averred that the land has not been put to agriculture use at any time and the same is being put to commercial use. Whereafter, allegations were made against the appellant-defendant regarding attempt to dispossess, resulting in proceedings before the police. The said attempt was claimed to be the cause of action 3 for filing the suit and it was prayed that the defendant be restrained from interfering in the business, entering into the property and dispossess the plaintiff.
The appellant-defendant filed application under Order VII, Rule 11 CPC, inter-alia, with the plea that the plaintiff has referred to the land by its description as agriculture land, the land continuous to be agriculture land and has not been converted for non- agricultural purposes residential or commercial purposes and therefore, the suit was not maintainable. It was also claimed that the defendant had already filed a suit for declaration, correction of entries and permanent injunction before the SDO, Girwa, Udaipur regarding the land in question, which was purchased by him in the year 1988 by way of registered sale deed and claimed that he was in possession.
The application was resisted by the plaintiff by filing reply. It was claimed that the land in question is not an agriculture land, its agriculture use had ended 20 years back and the same is now commercial place, photographs have been produced indicating the area. It was submitted that the averments made in the application are false and therefore, the application be 4 dismissed.
The trial court, after hearing the parties by its order dated 6.7.2012 allowed the application and dismissed the suit inter-alia observing as under:-
"अप र /व द क व दपत क अवल कन स ह ववव ददत भव क र जसव रकर कव भव अप र /व द क न दज ह न ववकय पत उक भव क लग न दय ह न भव ग ग&'द क( &खय आब द स एक दक. . दर ह कर भव कव क य क उपय ग आ रह ह न सपष ह.। इस पक र ववव ददत स'पव1 कय ददन 'क 12.12.06 व व द पसत&वत ददन 'क 13.02.07 क कव भव ह न व दपत क अवल कन स सपष ह. वजस स'ब'ध र जसर न क शतक र अवधवनय क( ध र 207 वसववल नय य लय क कत वधक र क वरजत करत ह.। उपर क क स'दभ जनत द7रद स बन अल7 2008 (1) रब9यएलएन पज 374 र जसर न, प दव बन दवर आरएलरब9य 209 (1) आरज पज 199 क नय वयक दष 'त क पक श उपर क वववचन क आध र पर प र /पवतव द द र पसत&त प .प.अ'. आदश 7 वनय 11 स प स क सव क र दकए ज न य गय ह न स पसत&त प .प. सव क र दकय ज कर व द पन ल ल द र पसत&त व द कत वधक र क अभ व असव क र कर ख ररज दकय ज त ह.। खच प . प. पकक र न अपन अपन वहन करग।"
Feeling aggrieved, the plaintiff filed appeal. The appellate court by impugned order, came to the conclusion that the issue raised by the defendant was not legal issue and the same was mixed question of law and fact and the same could be determined after the evidence was led by the parties and therefore, the trial court was not justified in dismissing the suit. The appellate court remanded back the matter to the trial court, inter-alia, observing as under :-
"14. उपय&क वववचन क पररण सवरप र ववनम त यह तथय एव' वववध क व वEत पश ह न क क रण इस पर द नG पकक र न क( स कय ल ज कर ह वनण त दकय ज न नय यस'गत ह. और ववद न ववच रण नय य लय न त वववध क पश क आध र पर वसववल नय य लय क कत वधक र नहJ नकर ज व द क व द ख ररज दकय ह.,वह अन&वचत ह न स आकवपत आदश अप सत दकय ज न य गय ह.।"5
It is submitted by learned counsel for the appellant that the first appellate court fell in error in remanding back the matter to the trial court, inasmuch as, there was no dispute on facts before the courts below that the land in question is an agriculture land and has not been converted for non-agriculture purposes, which fact is fortified from the averments made in the plaint as well as the transfer deed in favour of the plaintiff and therefore, the appellate court fell in error in remanding back the matter to the trial court holding the same to be a mixed question of law and fact.
It was submitted that provisions of Section 207 of the Rajasthan Tenancy Act, 1955 ('Tenancy Act') prohibits cognizance of any suit or application in respect of which any relief could be obtained by means of suit or application before the revenue court and that read with Section 256 of the Tenancy Act, the jurisdiction of the civil court is completely barred. Therefore, the order impugned deserves to be set- aside.
It was submitted that merely because a land which is agriculture in nature and has not been 6 converted for non-agriculture purposes is being put to use for non-agriculture purposes, its nature would not get altered and the jurisdiction of the revenue courts would continue. Once the jurisdiction of revenue court continuous, the bar of jurisdiction of civil courts also continuous and therefore, the suit was rightly rejected by the trial court.
Reliance was placed on Rama Kant Khetan v. Sri Ram Het Gupta & Ors. : 1985 RLR 281; Jannat Firdosh and Anr. v. Alfu & Ors. : 2008(1) WLN 374 (Raj.); Premi Devi v. Deva Ram & Ors. : 2009(1) DNJ (Raj.) 410; and Ram Kripal Das Ji Charitable Trust v. Phool Chand & Ors. : 2012(3) RLW 1999 (Raj.).
Vehemently opposing the submissions made by learned counsel for the appellant, learned counsel for the respondent submitted that the suit in question filed by the plaintiff cannot be said to be barred under any provision of law; a bare reading of the plaint clearly discloses that the plaintiff had sought relief regarding business being conducted by him at the disputed place. It was submitted that merely because land in question is recorded as agriculture land though its agriculture use has already ceased long back, the jurisdiction of 7 civil court cannot be ousted and therefore, the appellate court was justified in setting aside the order passed by the trial court.
It was emphasized that the mere fact that in the transfer deed the land in question has been indicated as agriculture land, away from abadi cannot be used against the plaintiff as it is on the date of filing the suit that the status has to be seen and not otherwise.
It was further submitted that the trial court had decided the matter cursorily and the appellate court has not reversed the said finding and has only remanded back the matter directing the parties to lead evidence and thereafter, the issue of jurisdiction also could be decided and the appellant cannot have objection regarding the said aspect of the matter. It was also submitted that the order passed by the trial court even otherwise cannot be sustained, inasmuch as, even if, when the trial court came to the conclusion that the suit was triable by revenue court, the plaint could not have been rejected and the same should have been ordered to be returned or being presented to the Court of competent jurisdiction and therefore, also the judgment impugned does not call for any 8 interference.
Reliance was placed on Kan Mal & Anr. v. Shri Jagmal Singh & Anr. : 2003(2) RRT 1157; Smt. Nenu Devi & Ors. v. Prem Prakash : S.B. Civil Writ Petition No.1873/2012 - decided on 12.3.2012; Smt. Sarifabibi Mohmed Ibrahim & Ors. v. Commissioner of Income- tax, Gujarat : AIR 1993 SC 2585; and Nalianikant Ramadas, Gujjar v. Tulasibai by LRs & Ors. : AIR 1997 SC 404.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record alongwith various judgments cited by learned counsel for the parties.
At the outset, it may be noticed that the appellant in his plaint, being aware of the issue pertaining to the fact that the land in question was agriculture land made various averments with an intention to emphasise the jurisdiction of the civil court preempting a potential objection in this regard from the defendant, inasmuch as, though the identification of the land was clearly indicated with reference to the old and new Araji numbers, it was repeatedly indicated that the disputed land was being used for commercial purposes, the land was never used for agriculture purposes, the 9 same has all along being used for commercial purposes. However, the said aspect as indicated in the plaint, which was filed on 13.2.2007 is in total contrast to the contents of the transfer deed dated 12.12.2006 executed two months before filing of the suit between the transferor and the plaintiff wherein it was indicated that the land of the ownership and khatedari of transferor was situated at the indicated Araji number and the land was 1 km. away from the main abadi and 200 mtrs. away from NH-76, which is being used for agriculture purposes.
Further in the transfer deed it is also indicated that the transferee i.e. a plaintiff would be free to get the land converted from agriculture to non-agriculture.
The 'land' and 'abadi land', have always been understood to be having different natures. The land has been defined under the Tenancy Act as under:-
"Section 5(24) : "Land" shall mean land which is let or held for agricultural purposes or for purposes subservient thereto or as grove land or for pasturage including land occupied by houses or enclosures situated on a holding, or land covered with water which may be used for the purpose of irrigation or growing singhara or other similar produce but excluding abadi land; it shall include benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth;"
The above definition provides that the land which 10 is let or held for agriculture purposes or for purposes subservient thereto or as grove land or for pasturage including land occupied by houses or enclosures situated on a holding has been defined as land excluding abadi land.
Similarly, under Section 103 of the Rajasthan Land Revenue Act, 1956 ('Land Revenue Act'), land and abadi land have been defined for the purposes of Chapter VI. The said Chapter VI of the Land Revenue Act deals with the Land, right to minerals, mines, quarries, liability to pay revenue or rent, use of agricultural land for non-agricultural purposes, unauthorised occupation of land etc. Therein, the definition of land and abadi land has been indicated as under:-
"Sec. 103. Land and abadi defined for purposes of Chapter VI. - For the purposes of this Chapter, unless the subject or context otherwise requires :
(a)- "land" means land belonging to all or any of the following categories -
(i) land as defined in clause (24) of section 5 of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955), ...... ...... ...... ...... ...... ...... ...... ......
(b)- "abadi" or "abadi area" or "abadi land" means the populated area of a village, town or city, and includes the site of such village, town or city, land reserved and set apart under section 92 for the development of abadi therein and land held therein for building purposes whether a building has been constructed thereon or not."11
The above definition indicates land as defined in clause 24 of Section 5 of the Tenancy Act (quoted herein-before) and abadi land has been defined as populated area of a village, town or city including the site of such village, town or city and land reserved and set apart under Section 92 for the development or abadi therein.
A bare look at the above two definitions, which have been indicated in two provisions relating to the Acts which deals with the land and abadi land, clearly reveals that till such time that the 'land' is not converted into 'abadi land', the same continuous to be land i.e. agriculture land with consequences as provided under both the Acts.
So far as maintainability of a suit before the Revenue Courts is concerned, Section 207 of the Tenancy Act provides for the suits and applications cognizable by the Revenue Courts and that no other court would take cognizance of such suits, the provisions read as under:-
"Sec. 207. Suits and applications cognizable by revenue court only - (1) All suits and applications 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 12 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 have granted."
Under the above provision, all the suits and applications of the nature specified in third schedule can be heard and determined by the revenue courts. The third schedule provides for suit for injunction under Section 92A and perpetual injunction under Section 188 of the Tenancy Act. Section 92A specifically provides for filing the suit for injunction in accordance with and subject to the provisions of Chapter X of the Specific Relief Act, 1877 (now Act of 1963).
From the above, it is apparent that a suit qua injunction, pertaining to agriculture land is maintainable before the revenue court and consequently, under Section 207(2) of the Tenancy Act, the jurisdiction of civil courts would be barred.
This Court in the case of Rama Kant Khetan (supra) observed that the suit pertaining to unconverted agriculture land cannot be maintained before the civil court. In case of Jannat Firdosh (supra), this Court while deciding the appeal from an order passed by the trial court, whereby the plaint was 13 rejected under Order VII, Rule 11 CPC on the ground that the suit was not triable by the civil court and was triable by the revenue court only, observed as under :-
"5. From a bare reading of Section 207(1) of the Rajasthan Tenancy Act shows that there is bar about the jurisdiction of the civil Court and this is statutory bar. This jurisdiction cannot be conferred by the parties in the Court which has no jurisdiction. The nature of the land can be changed only by obtaining appropriate order from the competent authority for conversion of the land from one category to another and for that purpose also, in the State of Rajasthan, there are other sets of rules framed under the Rajasthan Land Revenue Act also prescribes the procedure of the revenue Courts also. Therefore, the judgment relied upon by the learned counsel for the appellant delivered in the case of Abdulla Bin Ali (supra) has no application to the facts of the case."
Similarly, in the case of Premi Devi (supra), wherein almost issue identical to the present case was before the Court, it was held as under:-
"3. According to learned counsel for the appellant though the land is recorded as agricultural but it is surrounded by the Abadi land has come within the Municipal area of Jodhpur and further more is that the land in question was never cultivated, therefore, the civil Court has jurisdiction to entertain the suit relating to the land in question.
7. In view of the above reasons, the aforesaid judgments have no application to the facts of the case. The law in Rajasthan is very clear and it excludes the agricultural land from the jurisdiction of the civil Court and there are law by which the agricultural land can be converted into Abadi land and mere fact that the agricultural land holder himself put the land for non-agricultural purpose is not sufficient for conversion of land from agricultural land to Abadi land. In Rajasthan, as per law, no agricultural land holder (Khatedar Tenant) can convert the agricultural land to Abadi land without permission of State. The taxation law may have deeming clauses for taxing the transaction and valuing the property, but same cannot be accepted while determining the jurisdiction of the civil Court qua the jurisdiction of revenue Court.14
8. Learned counsel for the appellant also submitted that the defendant never contended that the land was cultivated, therefore it is not agricultural land. The argument is of no consequence in view of the fact that the nature of land is not dependent upon the fact that whether it is cultivated or not. When it is admitted case that land was not converted to Abadi from agricultural land and it is recorded as agricultural land in the revenue record, there is no merit in this appeal."
In the case of Ram Kripal Das Ji Charitable Trust (supra), again in similar circumstances, this Court after noticing various provisions, judgments and provisions of Section 90A of the Land Revenue Act, inter-alia, observed as under:-
"Although, it is an admitted fact that a temple and some other buildings have been constructed on the land in dispute and it is not being used for agriculture purposes since long but merely by that reason the nature of the land can not be said to be changed. Mere construction of a temple or some building on an agriculture land without proper permission can not change its real nature. It is an admitted fact that the land in dispute in revenue record still stands as an agriculture land and respondents are khatedar-tenants of the same. An agriculture land can be used for a non agriculture purpose only in accordance with law.
It is an admitted fact that in the present case no permission of the State Government or any of the competent authority was obtained before temple and other buildings were constructed on the land in dispute, therefore, in my view the nature of the land is still that of an agricultural land and the real question to be decided in the present suit is whether by way of alleged oral gift khatedari rights have accrued to Maharaj Shree Ram Kripal Das Ji and subsequently to the appellant and whether a decree of declaration to that effect can be passed and respondents can be restrained by permanent injunction. In my view unless a clear finding to that effect is given, the relief claimed by the appellant cannot be granted. Under the provisions of Rajasthan Tenancy Act, declaration and permanent injunction regarding an agricultural land can be granted only by a revenue court. It cannot be disputed that a suit for declaration of tenancy rights 15 regarding an agricultural land has to be filed under Section 88 whereas a suit for permanent injunction has to be filed under Section 188 of the Rajasthan Tenancy Act. Section 207 of the Rajasthan Tenancy Act provides that all suits of the nature specified in the III Schedule of the Act shall be heard and determined by a revenue court and no court other than a revenue court shall take cognizance of any such suit. A suit for declaration finds place in Item No.5 whereas suit for permanent injunction finds place in Item No.23 C of the III Schedule. It is thus, very much clear that the present suit was clearly barred by law as Section 207 of the Rajasthan Tenancy Act bars such a suit from being taken cognizance and considered by a court other than a revenue court. The learned trial Court has rightly arrived at a conclusion that the suit is not entertainable by a civil Court."
In the case of Kan Mal (supra), by following the judgment in the case of Sarifabibi Mohmed Ibrahim (supra), it was observed that merely because the land has been recorded as an agriculture land in the revenue record does not oust the jurisdiction of the civil court and mere inclusion of an agriculture land situated in a revenue state of a village in the urban area by any notification of the statutory authority would not oust the jurisdiction of the revenue court and the jurisdiction is based on the determination as on the date of filing the suit based on whether the land had been put to an agriculture use.
The judgment in the case of Sarifabibi has been distinguished by this Court in the case of Premi Devi (supra) by observing that matter under consideration 16 was for taxation law under the Income Tax Act, 1961.
A look at the judgment in the case of Sarifabibi (supra) would reveal that the matter pertains to the Income Tax Act and based on the definition of agricultural land under the provisions of the Income Tax. The said determination essentially pertained to issue of capital gains and was not in relation to the jurisdiction of the Civil Court.
Further the judgment in the case of Nalanikant Ramadas (supra) relied on by learned counsel for the respondent also is of no use as the same pertained to the provisions of Bombay Rents, Hotel and Lodging House Rates Control act wherein the definition of premises provided that any land not being used for agricultural purposes was included in the definition of the premises and in those circumstances the user of the land was relevant, whereas in the present case, user is irrelevant in so far as provision of Section 207 of the Tenancy Act is concerned.
The judgment in the case of Smt. Nenu Devi (supra), is merely factual and in fact, the Court has gone on to observe that "even if the dispute pertained to land in question is prima facie within the domain the 17 Revenue Court, the jurisdiction of Civil Court is not ousted in the circumstances narrated above."
In view of the categorical law laid down by this Court in the case of Jannat Firdosh (supra), relied on in the case of Premi Devi (supra) and in the case of Ram Kripal Das Ji Charitable Trust (supra), with minor aberration in the case of Kan Mal (supra) based on judgment of Hon'ble Supreme Court in the case of Smt. Sarifabibi (supra) which judgment, as discussed does not pertain to the present subject matter and in the case of Smt. Nenu Devi (supra) which judgment is self contradictory, it is well settled that pertaining to an unconverted agriculture land, the suit would lie before the Revenue Court only and the Civil Court's jurisdiction would be barred under the provisions of section 207 of the Tenancy Act.
In view of the above discussion, though the trial court was justified in accepting the application filed by the appellant under Order VII, Rule 11 CPC, the first appellate court fell in error in reversing the said order passed by the trial court. There is substance in the submissions made by learned counsel for the respondent that on reaching a conclusion about 18 exclusion of jurisdiction of the Civil Court, the trial court should not have rejected the plaint and should have ordered for return of the plaint to the plaintiff for being presented to the Court of competent jurisdiction by exercising powers under Order VII, Rule 10 CPC.
In view of the above, the appeal filed by the appellant is allowed. The judgment dated 23.7.2012 passed by the Additional District Judge No.2, Udaipur is set-aside. The judgment dated 6.7.2012 passed by the Civil Judge (Jr.Div.), Gogunda is restored with the modification that instead of the suit being dismissed, the plaint is ordered to be returned back to the plaintiff for presenting the same before the Court of competent jurisdiction.
(ARUN BHANSALI), J.
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