Rajasthan High Court - Jodhpur
Smt. Nakki Devi vs Rohit Bhatara And Ors on 21 May, 2024
Author: Madan Gopal Vyas
Bench: Madan Gopal Vyas
[2024:RJ-JD:22239] (1 of 8) [CR-36/2016]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision Petition No. 36/2016
Smt. Nakki Devi w/o Lal Chand, aged 46, resident of Village Nai
Badi, Tehsil & District - Bikaner
----Petitioner
Versus
1. Rohit Bhatara S/o Late Shri Naresh Bhatara, aged 46 years,
resident of Ganganagar, House No.345, Sector-29 Opp. Bhardwaj
Hospital, Noida, District-Gautampur, Uttar Pradesh
Plaintiff
2. Smt. Santosh w/o Shri Daulal, resident of village Naal Badi,
Tehsil & District - Bikaner
3. Smt. Babi w/o Shri Radheyshyam, resident of village Naal
Badi, Tehsil & District - Bikaner
4. Surendra Singh S/o Late Shri Vijay Singh, resident of
Pavanpuri, Bikaner
5. Neeraj Teneja S/o Shri Rajendra Teneja, resident of 1-E-25,
Pavanpuri, Bikaner
----Defendants
For Petitioner(s) : Mr. Nitin Trivedi
For Respondent(s) : Mr. Nishank Madhan
HON'BLE MR. JUSTICE MADAN GOPAL VYAS
Judgment DATE OF JUDGMENT : 21/05/2024 The present civil revision petition under Section 115 CPC has been preferred by the petitioner-defendant against the order dated 08.03.2016 passed by learned Civil Judge & Judicial Magistrate, Bikaner in Civil Original Suit No.57/2016, whereby learned trial Court has rejected the application preferred by petitioner-defendant under Order 7 Rule 11 CPC to the extent of questioning the maintainability of suit before the learned civil Court.
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2. The facts, in brief, are that the respondent-plaintiff No.1 herein preferred a civil suit seeking cancellation of sale deed dated 15.10.1997 in favour of petitioner-defendant herein and respondent Nos.2 & 3 and also the sale-deed dated 03.08.2010 in respect of agricultural land measuring 52 Bighas 7 Biswa situated at old Khasra No.272/1 & 274 in village Nal Badi, Tehsil and District- Bikaner (hereinafter referred to 'suit property') in the name of Smt. Shanti Devi w/o Amar Chand who is grand-mother of the plaintiff. In the suit, it was stated that the grand-mother of the plaintiff died in the year 1994, and therefore, she could not execute the sale-deed in favour of the petitioner-defendant and respondent Nos.2 & 3 in the year 1997. Therefore, it was submitted that the sale-deed of the year 1997 and the subsequent sale-deed of the year 2010 may be declared as void-ab-initio and injunction may be granted restraining defendants from alienating or selling the suit property.
3. Thereafter, the petitioner-defendant filed an application under Order 7 Rule 11 read with Section 151 CPC stating therein that since the plaintiff has filed suit seeking declaration of sale-deed as void and illegal and as the sale-deed has been executed in respect of agricultural land, the civil Court has no jurisdiction to entertain the suit and the revenue Court only has the jurisdiction to entertain the present suit. In the application, it was also claimed that the suit was not properly valued and there was non-joinder of necessary party and therefore, the suit may be rejected. Learned trial Court vide its order dated 08.03.2016 rejected the application (Downloaded on 22/05/2024 at 08:38:39 PM) [2024:RJ-JD:22239] (3 of 8) [CR-36/2016] under Order 7 Rule 11 CPC to the extent that it questioned the maintainability of the suit before the civil Court, therefore, aggrieved by the impugned order, the present revision petition has been preferred by the petitioner.
3. Learned counsel for the petitioner-defendant submits that as per Section 207 of the Rajasthan Tenancy Act, 1955 and 3 rd Schedule attached with the Act, it is crystal clear that only revenue Courts have jurisdiction to entertain declaratory suits with regard to agricultural land. It is submitted that if the reliefs claimed in the suit are seen, then it is clear that the plaintiff has prayed for declaring the sale-deed as void-ab-initio and, therefore, the jurisdiction to entertain the present suit lies with the revenue Court only. It is submitted that learned trial Court has wrongly held that the suit is maintainable before the civil Court on the ground that the main relief in the suit is for declaration of sale deed as void on grounds of fraud and the same can be determined and decided by the civil Court. Learned counsel for the petitioner submits that the learned trial Court has failed to appreciate that the relief claimed with regard to declaring the sale-deed as void and the commission of fraud may be one of the grounds seeking declaration but the main relief of declaration can only be granted by the revenue Court. In support of his arguments, learned counsel for the petitioner has relied upon following judgments :-
(i) Sukh Lal & Ors. Vs. Devi Lal & Ors. reported in AIR 1954 (Raj.) 170
(ii) Suhrid Singh @ Sardool Singh Vs. Randhir Singh & Ors.
reported in AIR 2010 Supreme Court 2807 (Downloaded on 22/05/2024 at 08:38:39 PM) [2024:RJ-JD:22239] (4 of 8) [CR-36/2016]
(iii) Hasti Cement Pvt. Ltd. & Anr. Vs. Sandeep Charan & Ors., S.B. Civil Revision No.137/2015, decided on 7.3.2018, Rajasthan High Court
4. Per contra, learned counsel appearing for respondents submits that the learned trial Court has rightly rejected the application preferred by the petitioner under Order 7 Rule 11 CPC. Learned counsel for the respondents submits that in the present matter, it was specifically pleaded by the respondent that by practising fraud, the sale-deeds in question were executed and, therefore, the civil Court had the jurisdiction to hear and decide the lis between the parties. Learned counsel further submits that ordinarily the cancellation of an instrument is sought by stating it either to be void or voidable. It is further submitted that when the instrument is void, the civil Courts do not have a jurisdiction. However, the present suit is a suit for declaring a voidable instrument as void and thus, the civil Court has the jurisdiction to try and decide the suit. In the present case, the act of executing the sale-deed is voidable in nature as the sale-deeds have been executed fraudulently, therefore, it is submitted that learned trial Court has rightly come to the conclusion that it is the civil Court who has the jurisdiction to hear and decide the suit. Lastly, it is prayed that the present revision may be rejected. In support of his arguments, learned counsel for the respondent has relied upon following judgments of this Court :
(i) Ramesh Chand Nagwada & Anr. Vs. Mishri Lal & Ors. S.B. Civil Revision Petition No.91/2014, decided on 24th August, 2022, Rajasthan High Court
(ii) Smt. Aruna Vs. Suraj Kumar & Ors. passed in S.B. Civil Revision Petition No.93/2022, decided on 02.06.2023, Rajasthan High Court (Downloaded on 22/05/2024 at 08:38:39 PM) [2024:RJ-JD:22239] (5 of 8) [CR-36/2016]
5. Heard learned counsel for the parties and perused the material available on record.
6. Before proceeding, it would be apt to reproduce Section 207 of the Rajasthan Tenancy Act, 1955 :-
"207. Suits and applications cognizable by revenue court only-- (1) All suits and application 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 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."
Sub-section (1) of Section 207 of the Rajasthan Tenancy Act, 1955 provides that all suits and application of the nature specified in the Third Schedule shall be heard and determined by a revenue Court. On perusing the third schedule, it transpires that there is no description of suit, application or appeal seeking decree of cancellation of sale-deed which has been executed by fraud.
7. In the present suit, the prayer is for declaration of sale-deed as void on the grounds of fraud. Thus, according to the averments in the plaint, the instrument is a voidable document which is sought to be declared as void. In deciding an application under Order 7, Rule 11 CPC, only the averments contained in the plaint are to be considered. Therefore, the present suit seeking declaration of instrument as void on grounds of fraud is (Downloaded on 22/05/2024 at 08:38:39 PM) [2024:RJ-JD:22239] (6 of 8) [CR-36/2016] maintainable before the civil Court. In Maniram & Ors. Vs. Mamkori & Ors. reported in 2021(2) DNJ (Raj.) 610, the co- ordinate Bench of this Court in para No.10 held as under:-
"10.The said nature averments and the implication of such averments have been considered by this Court in the case of Hasti Cement (supra), wherein it was laid down as under:-
21. 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."
8. Further, the co-ordinate Bench of this Court in case of Ramesh Chand Nagwada (supra) in para Nos.10,11 & 14 has held as under :-
"10. The perusal of plaint clearly reveals that the subject matter of suit give rise to the civil right of the parties relating to preparing forged documents & procuring decree from civil court by playing fraud, in relation to the subject land of plaintiff. The issues of forgery and fraud are involved. On reading of the plaint as a whole, it nowhere transpires that the present suit is not triable by the civil court. Merely because the documents which have been challenged by plaintiff, pertain to an agriculture land, does not oust the jurisdiction of the civil court.(Downloaded on 22/05/2024 at 08:38:39 PM)
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11. In case of Horil Vs. Keshav and Anr. [(2012) 5 SCC 525], Hon'ble the Supreme Court held as under:
"We are of the view that Revenue courts are neither equipped nor competent to effectively adjudicate on allegations of fraud and has overtones of criminality and the courts really skilled and experienced to try such issues are the courts constituted under the Code of Civil Procedure."
14. In that view of matter, in the opinion of this Court, the present suit is maintainable and triable by the civil court as the issues of fabrication of the documents and procuring decree of civil court by fraud & challenging the sale deed, can be examined and adjudicated by the civil court only."
The High Court of Allahabad in the case of Ganga Prasad Vs. Ram Das reported in MANU/UP/1293/2014 has in para No.13 held as under:-
13. It is equally well settled that the question of jurisdiction depends upon the allegations in the plaint and not the merits or the result of the suit (vide Bismillah v. Janeshwar Prasad: (1990) 1 SCC 207, paragraph 9). Therefore in a suit instituted before a Civil Court for cancellation of an instrument, in respect to an agricultural land, if a plea with respect to the bar of section 331 of the U.P.Z.A. and L.R. Act is taken, the Court must first determine as to whether from the plaint averments the instrument, as alleged, is void or voidable. If the plaint averments go to show that the instrument is voidable at the instance of the plaintiff(s), then the suit would be maintainable in a Civil Court, but if it is alleged to be void then the Court may have to undertake a complex exercise so as to assess whether in a given set of facts a declaration of right or status of a tenure holder is necessarily needed or not. If a declaration to that effect is necessarily needed, in that event, the relief for cancellation would be mere surplusage and redundant, because the Court, which has power to grant declaration can disregard a void document while granting a declaratory relief. In such an event a civil suit would be barred by sub-section (1) of Section 331 of the U.P.Z.A. and L.R. Act."
9. Thus, in view of the discussion made above and on relying upon the precedents, this Court is of the opinion that since the (Downloaded on 22/05/2024 at 08:38:39 PM) [2024:RJ-JD:22239] (8 of 8) [CR-36/2016] instrument sought to be declared as void on grounds of fraud is a voidable instrument, the civil Court has the jurisdiction to entertain the suit. The learned trial Court has rightly rejected the application under Order 7 Rule 11 CPC to the extent of maintainability of the suit and, therefore, no interference is called for in the impugned order.
10. Accordingly, the revision petition has no force and the same is hereby rejected. The stay petition also stands disposed of.
(MADAN GOPAL VYAS),J 31-Bharti/-
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