Rajasthan High Court - Jodhpur
Ram Narayan vs Mangi Lal & Ors on 2 January, 2014
Author: Arun Bhansali
Bench: Arun Bhansali
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:ORDER:
S.B. CIVIL REVISION PETITION NO.25/2012
Ram Narayan
vs.
Mangi Lal & Ors.
Date of Order :: 2.1.2014
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Ms. Charu Rai for Dr. Sachin Acharya, for the petitioner/s.
Mr. Sanjay Nahar, for the respondent/s.
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BY THE COURT:
This revision petition is directed against the order dated 16.1.2012 passed by the trial court, whereby the application filed by the petitioner under Order VII, Rule 11 (d) CPC has been rejected.
The facts in brief may be noticed thus : the respondent No.1 Mangi Lal filed a suit for permanent injunction and declaration in relation to a bore-well, water pump and electricity connection claiming 1/8th share in the said well, motor and electricity connection situated at Araji No.2968. It was inter-alia claimed in the plaint that the land in question originally belonged to Ram Narayan, Satya Narayan and their brothers Surya Prakash and Om Prakash. Out of the said land, Om Prakash sold the land to Smt.Hangami Devi and Surya Prakash sold 1/8th portion to the plaintiff and 1/8th portion to the defendant No.6 Bhanwar Lal. The bore-well etc. are situated in 2 land belonging to Smt. Hangami Devi and an agreement dated 2.7.2009 was executed by said Smt. Hangami Devi in favour of Ram Narayan, Satya Narayan, Om Prakash and Surya Prakash, it was indicated that the said bore-well etc. were joint property of all the four and that as she has purchased rights of Om Prakash, all other three persons shall continue to have the right qua the said bore-well etc. The 1/8th portion was purchased by the plaintiff on 3.12.2010. It was, inter-alia, alleged in the plaint that as the respondents are seeking to interfere in the enjoyment of the said bore-well etc., it has become necessary to seek inclusion of his name in the electricity connection with the Ajmer Vidhyut Vitran Nigam Limited and for that purpose, the suit was filed.
On filing of the suit, the petitioner herein filed an application under Order VII, Rule 11(d) CPC, inter-alia, claiming that in view of the provisions of Section 207 of the Rajasthan Tenancy Act, 1955 ('the Act'). The said suit was barred by law and as such, the same deserves rejection.
The application was opposed by the plaintiff and it was, inter-alia, submitted that besides other rights, the plaintiff has easementary right qua the said bore-well etc. After hearing the parties, the trial court came to the conclusion that where the suit is wholly and solely based on easementary rights, only the civil court has jurisdiction to hear the suit and consequently rejected the application.
It is submitted by learned counsel for the petitioner that a bare look at the provisions of Section 5(19) of the Act - 3
"improvement" and Section 5(24) of the Act - "land" as denied by the Tenancy Act, it is apparent that the Well is included in the definition of improvement and land and, therefore, the suit in relation thereto was maintainable before the revenue court only.
Reference was also made to Sr. 5, 8 & 8-A of the schedule appended to the Act, which provides for suit, application and appeal under the Act. It was further submitted that nowhere in the plaint, there is any whisper about easementary right and consequently, the judgment impugned deserves to be set-aside and the application deserves to be accepted.
Reliance was placed on the judgment of this Court in Ramchandra vs. Lakha & Ors. : 1971 WLN (Part -I) 97, Ashok Chouhan vs. Smt. Amri Bai & Anr. : 2010(2) DNJ (Raj.) 776, Mohar Singh vs. Wazir Chand : 1969 RLW 347.
Per contra, learned counsel for the respondent-plaintiff submitted that the suit is essentially meant for enforcement of the agreement dated 2.7.2009 executed by Smt. Hangami in favour of Ram Narayan, Satya Narayan, Om Prakash and Surya Prakash and therefore, it is the civil court alone which has the jurisdiction to deal with the said matter and the trial court was justified in rejecting the application under Order VII, Rule 11 CPC. It was further submitted that no prejudice is being caused to the petitioner in case the suit is tried by the civil court and on that count also the revision petition deserves to be dismissed.
I have considered the rival submissions.
A bare reading of the plaint as placed on record clearly indicates that the plaintiff is seeking a declaration regarding 1/8th 4 share in the bore-well, water pump and electricity connection and a consequential injunction against the defendants from interfering in his use and against the electricity company from disconnecting the electricity connection.
The averments contained in the plaint as noticed hereinbefore clearly indicate that the plaintiff is seeking enforcement of his rights based on his capacity as successor-in- interest of Surya Prakash having purchased his 1/2th share i.e. 1/8th of the entire land holding on the strength of the sale deed executed by said Surya Prakash in his favour and the agreement dated 2.7.2009 executed by Smt. Hangami Bai in favour of the four brothers i.e. Ram Narayan, Satya Narayan, Om Prakash and Surya Prakash only.
In view of the law laid down by this Court in the case of Ramchandra (supra), the definition of term "improvement" with reference to a tenant's holding clearly includes a Well. Admittedly, in the present case, the Well has been constructed for agriculture purposes and is being used for the said purpose. Further the other aspects i.e. water pump and electricity connection are also connected with the said Well and a right is being sought qua the said bore-well and facilities connected therewith, therefore, it is apparent that the relief is being sought qua land as defined under Section 5(24) of the Act.
In terms of Section 207 of the Tenancy Act and the 3rd schedule appended to the said Act, the suit for declaration of the plaintiff's right as a tenant, suit for declaration of any other right, and the suit for injunction are all maintainable before the 5 revenue courts and in view thereof, the jurisdiction of civil court qua the said suit stands barred.
The plea raised by learned counsel for the plaintiff that as the plaintiff is seeking to enforce his rights under the agreement dated 2.7.2009, therefore, the suit is maintainable before the civil court has no warrant in law, inasmuch as, it cannot be said that if a right qua agriculture land / improvement arises based on agreement between the tenants/ co-tenants of the land in question, the jurisdiction of revenue court is taken away. The enforcement of right by the plaintiff based on the title in his favour and the agreement executed by Smt. Hangami Bai does not prevent him from such relief from the revenue court.
The finding of the trial court based on alleged easementary right said to have been claimed by the plaintiff in the reply to application under Order VII, Rule 11 CPC is wholly de hors the plaint wherein there is no averment about so-called easementary right and therefore, on that count also the order passed by the trial court cannot be sustained.
In view of the above discussion, the revision petition is allowed. The plaint filed by the plaintiff being barred under Section 207 of the Tenancy Act is rejected and exercising powers under Order VII, Rule 10 CPC, the same is ordered to be returned to the plaintiff for being filed before the appropriate forum.
No costs.
(ARUN BHANSALI), J.
rm/-