Rajasthan High Court - Jodhpur
Chainaram vs Smt. Shanti & Ors on 7 May, 2018
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision No. 67 / 2018
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(2 of 8)
[CR-67/2018]
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_____________________________________________________
For Petitioner(s) : Mr. Gurnam Singh & Mr. Alkesh Agarwal.
For Respondent(s) :
_____________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 07/05/2018 This revision petition is directed against the order dated 5/2/2018 passed by the Addl. Civil Judge No.2, Pali, whereby, the application filed by the petitioner under Order VII Rule 11 CPC has been rejected.
The respondents, wife and children of deceased Pokar, filed a suit for cancellation of sale deed dated 17/6/1995 executed by Mangla Ji, father of late Pokar, in favour of China Ram s/o Mangla Ji and brother of Pokar, and permanent & mandatory injunction. The transferee Chaina Ram, daughters and Rama Ji, another son of Mangla Ji, were impleaded as party defendants to the suit.
The defendant No.1 - petitioner Chaina Ram filed an application under Order VII Rule 11 CPC inter alia with the averments that the jurisdiction of the court was barred under Section 207 of the Rajasthan Tenancy Act, 1955 ('the Act, 1955') as the sale deed pertains to an agricultural land and further submission was made that as the sale deed was executed on (3 of 8) [CR-67/2018] 17/6/1995, during the life time of Mangla Ji and Pokar, who died in 2001 and 2010, respectively, the suit was barred by limitation as well. Further submissions were made that there was no cause of action in favour of the plaintiffs and consequently the plaint was liable to be rejected.
The application was contested by the plaintiffs by filing reply denying the averments contained therein.
The trial court by its impugned order dated 5/2/2018 came to the conclusion that the defendant has failed to point out as to under which item of the III Schedule of the Act, 1955, only the Revenue Court has jurisdiction to entertain the suit and as only averments made in the plaint are required to be looked into for deciding the application under Order VII Rule 11 CPC and from para no. 9 of the plaint it was apparent that on 31/3/2015 the plaintiffs for the first time came to know of the execution of the sale deed and that as the issue of limitation is a mixed question of law and facts, the same cannot be decided at this stage and consequently rejected the application.
It is submitted by learned counsel for the petitioner that the trial court has committed grave error in rejecting the application filed by the petitioner. It was submitted that specific submissions were made in the application indicating that provisions of Sections 88 and 92A of the Act deal with the suit for declaration and injunction and, therefore, the decision of the trial court in holding that item of the Schedule was not indicated is ex facie baseless.
Further submissions were made that a bare perusal of the plaint clearly indicates that the suit was for declaration of rights (4 of 8) [CR-67/2018] and as the same pertained to agricultural land, the same was barred under Section 207 of the Act.
Submissions were also made that the land in question belonged to Pratap Ji, father of Magla Ji, which was succeeded by Magla Ji in his individual capacity and was recorded as such in the revenue records and Mangla Ji had transferred the land in question in favour of petitioner Chaina Ram, which was well within his rights and said aspect is well established from the documents produced by the petitioner, however, the plea raised by the plaintiffs regarding the land in question being a joint family property/coparcenary property is ex facie baseless and, therefore, the finding of trial court in this regard deserves to be quashed and set aside.
Further submissions were made that the sale deed was executed way back in the year 1995 and the suit has been filed on 8/2/2015 i.e. after passage of 20 years and, therefore, the suit was barred by limitation and was liable to be rejected by the trial court.
Reliance was placed on the judgment in Vijay Singh & Anr. vs. Buddha & Ors. : 2012(3) WLC (Raj.) 673, Jagdish Narain Pareek vs. Kamlesh Jain & Ors. : 2017 (3) DNJ (Raj.) 1022.
I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record.
A perusal of the averments made in plaint indicates that the entire plea sought to be raised by the plaintiff was that the land in question in the hands of Mangla Ji was a joint family property and (5 of 8) [CR-67/2018] Mangal Ji could not have transferred the entire land in favour of petitioner Chaina Ram and that Pokar and other defendants have 1/7th share each in the suit property. Allegation was also made that the sale deed was a fraudulent document and in the alternative a plea was raised that sale deed was executed beyond the powers of Mangla Ji. A specific averment has been made that plaintiffs came to know regarding the execution of sale deed on 31/3/2015 and they were threatened on 7/4/2015 that the land in question would be transferred by the defendant no.1, when the cause of action arose to the plaintiffs.
It is well settled by various pronouncements of Supreme Court that while determining the application under Order VII Rule 11 CPC the Court is required to look into the averments made in the plaint only and neither the plea in defense raised by the defendant nor the documents filed by them can be taken into consideration. Reference in this regard can be made to the judgment in Saleem Bhai & Ors. vs. State of Maharashtra & Ors. :
2003 (1) SCC 577.
So far as the judgment of this Court in case of Vijay Singh (supra), relied on by the learned counsel for the petitioner for making submissions that while deciding the application under Order VII Rule 11 CPC documents filed by defendants which are undisputed or cannot be disputed can also be looked into is concerned, the said observations made by this Court in para 10
(v) is in clear contradiction to para 10 (i) of the said judgment, as such, the plea raised in this regard cannot be countenanced.
Relevant para 10(i) of the said judgment reads as under:
(6 of 8) [CR-67/2018] "(i) The relevant facts which need to be looked into for deciding an application under Order 7 Rule 11 are the averments made in the plaint. The trial Court can exercise the power at any stage of the suit-before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purpose of deciding an application under clause (d) of Order 7 Rule 11 of the Code, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage."
As already noticed hereinbefore, the plea in the suit is based on the fact that property in question is a joint family property and that Mangla Ji had no right to transfer the entire property in favour of Chaina Ram. This Court while dealing with the similar nature controversy in Hasti Cement Pvt. Ltd. vs. Sandeep Charan & Ors. : S.B.Civil Revision Petition No. 137/2015 decided on 7/3/2018, 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.
In view of the above discussion, the present case needs to be examined wherein, as noticed hereinbefore, the declaration has been sought in the plaint seeking cancellation of sale deed to the extent of share of the plaintiff on account of the fact that the suit property being ancestral joint Hindu property the transfer was made without any reason, basis or necessity.
(7 of 8) [CR-67/2018] On the said aspect, while the judgment in the case of Sangram Singh (supra) laid down that such a sale would be void and, therefore, the suit would be triable by revenue court only, in later judgment in the case of Bhopal Singh (supra) it was laid down that such a sale would be voidable and not void. For the said proposition, reliance was placed on the judgment of Hon'ble Supreme Court in the case of Raghubanchmani (supra) and a unreported judgment in the case of Longram vs. Jaipal Singh : Civil Revision Petition No.153/1971 decided on 29/7/1971, taking different view was held as not a good law in view of the Supreme Court judgment, for the same reasons the judgment in the case of Sangram Singh (supra) also cannot be said to be a good law though the judgment in the case of Sangram Singh was not cited in the case of Bhopal Singh (supra). Relevant portion of the judgment dealing with the said aspect reads as under:
"13. In view of the decision in Raghubanchamani's case AIR 1971 SC 776, the sale-deed made by the plaintiff's father, who is defendant No. 5, in favour of the defendants Nos. 1 and 4 (petitioners) is voidable as according to the plaintiff it was without legal necessity and under Section 31(1) of the Specific Relief Act, when the plaintiff has reasonable apprehension that the sale-deed if left outstanding, may cause him serious injury, it became necessary for him to have it adjudged, void or voidable. The cancellation of the sale-deed, being the main relief in the suit, can only be granted by a Civil Court. Learned counsel for the petitioners cannot, in my opinion, derive any benefit from the decision in Jagansingh's case 1973 Raj LW 674. In Longram's case Civil Revn. No. 153 of 1971, D/- 29-7-1971 Raj) (supra) the learned Judge took the view that the sale by the father of undivided coparcenary property is void in the absence of the legal necessity and the prayer for cancellation of the sale-deed is not very material, and further that the suit was essentially for possession of agricultural land. The sale by the father of the plaintiff in the case before me is voidable according to the decision in Raghubanchamani's case AIR 1971 SC 776. I regret my inability to agree with the view taken in Longram's case and it is no more a good law after Raghubanchamani's case."
In view of the above, the law laid down in the case of Bhopal Singh (supra) holding the instrument of the present nature as voidable, suit apparently is maintainable before the civil court and in view thereof the order passed by the trial court cannot be faulted."
In view of the law laid down by this Court in the case of Hasti Cement (supra), the sale deed in question would be voidable (8 of 8) [CR-67/2018] and, therefore, the suit would be triable by civil court only and, therefore, the plea raised by the petitioner in this regard has no substance.
So far as the judgment in the case of Jagdish Narain Pareek (supra) is concerned, the facts of the said case are different and the principles laid down in the said judgment would have no application to the facts of the present case.
So far as the issue pertaining to the plaint being barred by limitation is concerned, as the averments made in the plaint have been disputed by the defendants and issue in this regard would have to be framed and after the parties lead their evidence, the trial court would have to record a finding on the said aspect. Till such time that the plea raised in this regard is examined after evidence is led by the parties, the said issue cannot be decided. As such, observations made by the trial court in this regard cannot be faulted.
In view of the above discussion, there is no substance in the revision petition and the same is, therefore, dismissed.
(ARUN BHANSALI)J. Baweja-29