Rajasthan High Court - Jodhpur
Smt. Geeta Devi And Ors vs Pushap Chand And Ors on 23 August, 2018
Equivalent citations: AIR 2018 (NOC) 862 (RAJ.), AIRONLINE 2018 RAJ 960
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision No. 190/2016
1. Smt. Geeta Devi W/o Late Sh. Premdas, Village- And Post
Kankani, Tehsil Luni, District Jodhpur Raj.
2. Smt. Leela @ Rekha W/o Late Sh. Ganpatdas, Village And
Post Kankani, Tehsil Luni, District Jodhpur Raj.
3. Kushal @ Kushar S/o Late Sh. Ganpatdas, Village And
Post Kankani, Tehsil Luni, District Jodhpur Raj.
4. Jeet S/o Late Sh. Ganpatdas, Village And Post Kankani,
Tehsil Luni, District Jodhpur Raj.
----Petitioners
Versus
1. Pushap Chand S/o Late Sujanmal Sancheti, D-5, Shastri
Nagar, Jodhpur Raj.
2. Mahendra Singh S/o Sh. Khim Singh, Village And Post
Kankani, Tehsil Luni, District Jodhpur Raj.
3. Gajendra Singh S/o Sh. Khim Singh, Village And Post
Kankani, Tehsil Luni, District Jodhpur Raj.
----Respondents
For Petitioner(s) : Mr. Salil Trivedi.
For Respondent(s) : Mr. R.R.Vyas.
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 23/08/2018 This revision petition under Section 115 CPC is directed against the order dated 6/10/2016 passed by the Addl. District Judge No.4, Jodhpur Metropolitan, whereby, the application filed by the petitioner under Order VII Rule 11 CPC has been rejected.
The plaintiff-respondent filed a suit for declaration and possession inter alia with the averments that agriculture land belonging to Smt. Geeta, Smt. Leela, Kushal and Jeet comprised (2 of 7) [CR-190/2016] in Khasra No.805 ad measuring 27 Bigha 14 Biswa is situated at Kankani. It was claimed that Smt. Geeta and Smt. Leela on their behalf and on behalf of minor children entered into an agreement to sale dated 1/11/2006 with the plaintiff regarding which part consideration was paid. The defendants Smt. Geeta and Smt. Leela executed a power of attorney in favour of Harshvardhan Sancheti. On 14/11/2007, after payment of balance consideration of Rs.28,70,000/- to Harshvardhan, the property was transferred to the plaintiff and sale deed in this regard was registered and possession was handed over. It was then claimed in the plaint that on 22/11/2007 the plaintiff came to know that defendants, Smt. Geeta and Smt. Leela have transferred the suit property to defendant nos. 5 and 6 i.e. Mahendra Singh and Gajendra Singh vide sale deed dated 17/11/2007. It was claimed that the transfer was void and same could not have been transferred by the defendants no.1 and 2 in favour of defendants no.5 and 6. Based on the said submissions, relief was claimed in the plaint seeking cancellation of sale deed dated 17/11/2007 and possession of the suit property.
The petitioners filed an application under Order VII Rule 11 CPC inter alia indicating that as the suit pertains to agriculture land, the same was barred under the provisions of Section 207 of the Rajasthan Tenancy Act, 1955 ('the Act of 1955') and as such the plaint was liable to be rejected.
The application was contested by the plaintiff with the submissions that the suit of the plaintiff was based on the provisions of Contract Act and the only submission made was that the property was already transferred on 14/11/2007, therefore, subsequent transfer made on 17/11/2007 was void.
(3 of 7) [CR-190/2016] After hearing the parties, the trial court came to the conclusion that as the tenancy rights have not been disputed in the suit and no declaration in this regard has been sought, only relief pertains to cancellation of registered sale deed and the relief of possession was an ancillary relief to cancellation, the application filed by the defendants under Order VII Rule 11 CPC was liable to be rejected.
It is submitted by learned counsel for the petitioners that the trial court committed grave error in rejecting the application filed by the plaintiffs. It was submitted that a bare perusal of the plaint would indicate that the only case of the plaintiff was that the sale deed dated 17/1/2007 was void and that the plaintiff was entitled to possession of the land in question in view of the transfer dated 14/11/2007 executed by the power of attorney holder of the defendants no. 1 to 4 in his favour and once the plea raised in the suit pertains to the document in question being void, the suit would be maintainable before the revenue courts only and as the plaint is barred under Section 207 of the Act of 1955, the same was liable to be rejected under provisions of Order VII Rule 11 (b) CPC.
Reliance was placed on the judgment of this Court in Hasti Cement Pvt. Ltd. vs. Sandeep Charan & Ors. : (2018) 1 RLW 826.
Learned counsel for the respondents supported the order impugned. It was submitted that the substance of the plaint only is required to be examined and once the real contest only pertains to seeking cancellation of sale deed, the suit was maintainable before the civil court.
Reliance was placed on judgment of this Court in Durgadan vs. Devidan : 1974 RLW 296.
(4 of 7) [CR-190/2016] I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
It would be appropriate to quote the submissions made in the plaint and relief as claimed, which read as under:
Submissions:
";g cspkuukek fnukad 17-11-2008 dks fu"ikfnr fd;k x;k gS 'kwU; gS fnukad 14-11-2008 dks oknh mijksDr d`f"k Hkwfe ckcr lHkh [kkrsnkjh jkbVl VkbZVy] baVjsLV o ekfydkuk vf/kdkj tfj;s jftLVMZ cspkuukek izkIr dj pqdk gS vr% fnukad 17-11-2007 dks fd;k x;k cspkuukek 'kwU; o voS/k gSaA vr% ;g cspkuukek voS/; o 'kwU; ?kksf"kr djkus dk oknh eqLrgd gSA"
Reliefs:
"vr% okn izLrqr dj fuosnu gS fd okn ds okn dks Lohdkj Qjek;k tkdj fMØh cgd oknh cjf[kykQ izfroknhx.k bl vk'k; dh ikfjr QjekbZ tkosa fd %& v& ;g gS fd izfroknh la- 1,d ls 4 pkj ds }kjk fookfnr d`f"kHkwfe dk cspkuukek fnukad 17-11-2007 izfroknh la- 5ikWp o 6 N% ds i{k esa fu"ikfjr o iathd`r nLrkost dks voS/k 'kwU; o oknh ds fo:) csvlj ?kksf"kr fd;k tkosaA c& ;g gS fd oknxzLr d`f"kHkwfe dk dCtk izfroknh la-5 ikWp o 6 N% ls oknh dks fnyk;k tkosaA l& ;g gS fd vU; nknjlh tks oknhx.k ds i{k gks fnykbZ tkosa ,oa [kpkZ eqdnek fnyk;k tkosaA"
A bare reading of the above would indicate that case of the plaintiff is that the sale deed dated 17/11/2007 (wrongly indicated as 17/11/2008) was void and the plaintiff was entitled to get the sale deed declared as null and void, whereafter, in the relief clause besides seeking declaration regarding sale deed being void, possession of the land in question has also been sought.
The law regarding maintainability of the suit for cancellation of document pertaining to agriculture land has been laid down by this Court in the case of Hasti Cement (supra), wherein, after (5 of 7) [CR-190/2016] considering large number of judgments on the issue it was inter alia laid down as under:
"From what has been noticed hereinbefore, it can be safely concluded that if the allegation in the plaint/substance of the allegations in the plaint allege the instrument to be void and no cancellation is required and without seeking such cancellation the relief of declaration pertaining to tenancy rights with regard to the agricultural land in question can be obtained by the plaintiff, only the revenue courts would have jurisdiction to deal with the subject matter of the suit and consequently the jurisdiction of civil courts would be barred. However, if the allegations made in the plaint make out a case of document being voidable, relief of cancellation of such a voidable document can only be granted by civil court and irrespective of the fact that the instrument pertains to agricultural land, the suit would not be barred under Section 207 of the Tenancy Act. Therefore, the trial court in each case, where a issue in this regard is raised, based on the stage of the suit i.e. either based on the plaint averments or the evidence available on record would have to come to a conclusion as to whether the facts as alleged, if established or as established in a case where evidence has been led makes the instrument void or voidable and decide accordingly."
Further in Sunil Bhandari & Anr. vs. Shakuntala Kumari & Ors. : S.B.Civil Revision No. 268/2013 decided on 2/7/2018, the aspect pertaining to void and voidable transaction was considered and after noticing the principles laid down by Hon'ble Supreme Court in Govt. of Orissa vs. Ashok Transport Agency & Ors. :
(2002) 9 SCC 28 and Rajasthan State Industrial Development & Investment Corporation vs. Subhash Sindhi Cooperative Housing Society, Jaipur & Ors. : (2013) 5 SCC 427 it was reiterated that only in case where transaction challenged is voidable, suit would be maintainable before the civil court.
In the present case, plaint allegations pertain to the fact that based on power of attorney given by defendants-owners of the suit land, the land in question was transferred by the power of attorney holder to the plaintiff, though the facts indicate that the (6 of 7) [CR-190/2016] power of attorney holder is son of plaintiff only and that after transfer on 14/11/2007, subsequently on 17/11/2007 the defendants executed another sale deed in favour of defendants no.5 and 6 and, therefore, the sale deed was void.
Sale of property is dealt with under Section 54 of the Transfer of Property Act, 1882, which defines the word 'Sale' which means transfer of ownership by one person to another. Sale is transfer of rights, title and interest in the property which are possessed by the transferor to another person namely transferee. In case of transfer by sale, the transferor does not retain any part of interest or right in the suit property and the transfer is complete and effective upon the completion of registration of sale deed. Once the transferor has divested himself of his ownership of the property, then he retains no control or right over the said property.
As per the plaint allegations, which have to be taken as correct for the purpose of deciding the application under Order VII Rule 11 CPC, the property stood transferred in favour of plaintiff on 14/11/2007 by registered sale deed by the power of attorney holder of defendants and, therefore, defendants no. 1 to 4 were divested of the ownership/right in the suit property and nothing remained thereafter with them to transfer on 17/11/2007 when they executed another sale deed in favour of defendants no. 5 and 6, which transfer, in case the transfer dated 14/11/2007 is a valid transfer, is wholly void and ineffective.
As laid down in the case of Hasti Cement (supra) once the allegations made in the plaint seek to make out a case that the transaction resulting in sale deed pertaining to agriculture land, which is sought to be questioned, is void, the jurisdiction lies with (7 of 7) [CR-190/2016] the revenue court only and the jurisdiction of the civil court would be barred under Section 207 of the Act.
In the present case, as noticed hereinbefore, as the allegations make out a case of sale deed dated 17/11/2007 being void, the suit as filed by the plaintiff could only be maintained before the revenue court and same was barred under Section 207 of the Act. The trial court clearly fell in error in rejecting the application filed by the petitioners.
Consequently, the revision petition is allowed. The order dated 6/10/2016 passed by Addl. District Judge No.4, Jodhpur Metropolitan is quashed and set aside. The application filed by the petitioner under Order VII Rule 11 CPC is allowed and it is held that the plaint filed in the present case is barred by law. However, exercising powers under Order VII Rule 10 CPC, the trial court is ordered to return the plaint to the plaintiff for being presented before the appropriate revenue court.
No orders as to costs.
(ARUN BHANSALI),J baweja/-
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