Rajasthan High Court - Jodhpur
Ganesh Ram vs Lota Ram on 1 April, 2022
Author: Rameshwar Vyas
Bench: Rameshwar Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision Petition No. 45/2021
Ganesh Ram S/o Lota Ram, Aged About 41 Years, adopted son of
Late Hema Ram S/o Sona Ram Jat, R/o Bhed, Tehsil Khinvsar,
District Nagaur.
----Petitioner
Versus
1. Lota Ram S/o Sona Ram,
2. Smt. Ruki Devi D/o Lota Ram,
3. Smt. Kali D/o Late Sona Ram,
4. Smt. Lali D/o Sona Ram,
5. Sukha Ram S/o Lota Ram,
6. Kesha Ram S/o Lota Ram,
All residents of Village Bhed, Tehsil Khinvsar, District
Nagaur
----Respondents
For Petitioner(s) : Mr. C.S. Kotwani
For Respondent(s) : Mr. N.R. Choudhary
HON'BLE MR. JUSTICE RAMESHWAR VYAS
Order 01/04/2022 The instant revision petition has been filed challenging the order dated 27.7.2021 passed by learned Additional District Judge No.1, Nagaur in Civil Original Case No. 30/2021 titled as 'Lota Ram & Ors. vs. Ganesh Ram', whereby application under Order 7 Rule 10 & 11 read with Section 151 CPC filed by the defendant - petitioner herein was dismissed.
Brief facts of the case are as under:-
Plaintiff - respondents herein Lota Ram and others filed a suit before learned Additional District Judge, Nagaur for (Downloaded on 26/12/2022 at 01:04:22 AM) (2 of 8) [CR-45/2021] cancellation of adoption deed with permanent injunction against Ganesh Ram defendant - petitioner stating therein that defendant Ganesh Ram was never adopted by Late Hema Ram. As per pedigree enumerated in the plaint, Hema Ram, Lota Ram, Kali and Lali are sons and two daughters of Sona Ram. Hema Ram was unmarried and lived with his brother Lota Ram. Ganesh Ram who was alleged to be adopted by Hema Ram was not living with Hema Ram, whereas, before the death of Hema Ram, he started living at Surat. Ganesh Ram was very clever and greedy person, whereas, the plaintiffs Lota Ram and others were illiterate and agriculturists. Hema Ram was head of the family and hence, after the death of Sona Ram, father of Lota Ram, Hema Ram, Kali and Lali, whole agricultural land as mentioned in Para - 2 of the plaint was entered in the sole name of Hema Ram, whereas, Hema Ram had only 1/4 share in the land of his father. As per averments made in the plaint, after the death of Hema Ram, all plaintiffs had became entitled for 1/3 share of the land. Since the land was entered inadvertently in the sole name of Hema Ram, hence, Lota Ram and others have filed suit for declaration of khatedari rights, partition and injunction against co-khatedars in the court of Sub Divisional Officer, Khinwsar. Since, the plaintiffs were in the impression that after the death of Hema Ram, all land will devolve as per the provisions of Section 8 of Hindu Succession Act in favour of plaintiffs, they have not filed any proceedings for correction of revenue records. In the plaint, it has been further averred that Hema Ram never expressed his desire to take any person in adoption. Ganesh Ram, who is biological son of Lota Ram, was very clever and greedy person. In the year 2016, he fraudulently prepared an adoption deed in his favour and managed (Downloaded on 26/12/2022 at 01:04:22 AM) (3 of 8) [CR-45/2021] to get signatures of Hema Ram and plaintiffs. Plaintiffs and Hema Ram were under the impression that this document is a will in favour of Lota Ram. Plaintiffs came to know about this forgery in April, 2021 after the death of Hema Ram when Ganesh Ram asserted his right as an adopted son of Hema Ram. Hence, the plaintiffs filed this suit for cancellation of adoption deed and seeking declaration to the effect that Ganesh Ram is not the adopted son of Late Hema Ram. They also sought injunction against any interference in the possession of plaintiffs over the disputed land.
After filing the written statement, an application was moved by defendant under Order 7 Rule 10 and 11 CPC on the ground that the suit is essentially a revenue suit with regard to agricultural land, hence, the same is not maintainable before the civil court. After hearing on the application, the learned trial court rejected the same vide impugned order dated 27.7.2021 against which present revision petition has been preferred.
Heard learned counsel for the parties and perused the material available on record.
Learned counsel for the petitioner - defendant in the original suit submits that essentially the plaintiffs are claiming right in land showing it to be a joint holding. As per plaint, Hema Ram got the property through partition. Relying on the following judgments, learned counsel for the petitioner submits that unless declaration with regard to land in question is made, no suit for cancellation of adoption deed is maintainable. Learned trial court has grossly erred in interpreting the provisions of law and has acted beyond its jurisdiction while passing the impugned order (Downloaded on 26/12/2022 at 01:04:22 AM) (4 of 8) [CR-45/2021] and the same cannot be sustained and is liable to be quashed and set aside.
In the reply, learned counsel for the respondents submits that the suit land was wrongly entered in the khatedari of Late Hema Ram, therefore, the suit for declaration of khatedari rights and partition was instituted by the plaintiffs - respondents herein against the petitioner and other co-khatedars in the court of Sub Divisional Officer, Khinwsar on 14.2.2021, which is sub- judiced. It is also argued that the main relief in this suit of the plaintiffs is for cancellation of registered adoption deed and not to declare them successor of any person or declaration of any agricultural land in their khatedari.
The question before this Court is whether the impugned order is illegal, improper and contrary to the provisions of law.
In the matter of Pyarelal vs. Shubhendra Pilania (Minor) through Natural Guardian (Father) Shri Pradeep Kumar Pilania & Ors : (2019) 3 SCC 692, it is held as under:-
"22. The appellant has prayed that the gift deed dated 10- 2-2011 be declared void to the extent of the share claimed by the appellant and that Respondent Nos. 1 to 5 be restrained from alienating the share of the appellant. The civil court may decree the relief prayed only if it is first determined that the appellant is entitled to khatedari rights in the suit property. Under the provisions of the Tenancy Act, the jurisdiction to declare khatedari rights vests exclusively with the Revenue Court. Only after such determination may the civil court proceed to decree the relief as prayed. The Explanation to Section 207 clarifies that if the cause of action in respect of which relief is sought can be granted only by the Revenue Court, then it is immaterial that the relief asked from the civil court is greater than, or in addition to or not identical with the (Downloaded on 26/12/2022 at 01:04:22 AM) (5 of 8) [CR-45/2021] relief which the Revenue Court would have granted. In view of this matter, the civil court may not grant relief until the khatedari rights of the appellant have been decreed by a Revenue Court.
23. A claimant whose khatedari rights have been decreed by a Revenue Court is however on a different footing from a claimant whose khatedari rights are pending adjudication by a Revenue Court. Where the khatedari rights are yet to be decreed, a claimant must first approach the Revenue Courts. The relief to declare the gift deed void and to restrain Respondents Nos. 1 to 5 from interfering with or alienating the property vesting in a civil court may be sought for in a suit by a claimant in whom khatedari rights have been decreed by a Revenue Court. "
In the matter of Shri Ram & Anr. vs. Ist Additional District Judge & Ors. : (2001) 3 SCC 24, the Hon'ble Supreme Court held that "Where a recorded tenure-holder having a prima facie title and in possession files suit in the civil court for cancellation of sale dee having been obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the Revenue Court, the reason being that in such a case, prima facie, the title of the recorded tenure - holder is not under cloud."
In the case of Pratapi (Smt.) vs. Jhamku & Ors. :
2013(3) DNJ (Raj.) 1112, this Court held that when in a suit ancillary relief to the main relief sought is for declaration of a sale deed, an agriculture land as void ab initio, the suit can always be entertained and tried by the Revenue Court. But then, the exclusive jurisdiction of the Revenue Court in no manner, bars the jurisdiction of civil court in entertaining the suit for cancellation of the sale-deed of agriculture land executed by any person without there being any title over the property. In other words, the suit (Downloaded on 26/12/2022 at 01:04:22 AM) (6 of 8) [CR-45/2021] regarding cancellation of the sale deed even in respect of an agriculture land could exclusively tried by the civil court.
In the case of Hasti Cement Pvt. Ltd. & Anr. vs. Sandeep Charan & Ors. : S.B. Civil Revision Petition No. 137/2015 decided on 7.3.2018, this Court while dealing with the maintainability of the suit before civil court in relation to agricultural land inter alia came to the following conclusion:-
"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 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. (Downloaded on 26/12/2022 at 01:04:22 AM)
(7 of 8) [CR-45/2021] 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.
Having regard to the law as enunciated above in the considered opinion of this Court, the disputed adoption deed is not ab initio void. Plaintiffs have to declare it null and void on the grounds alleged in the plaint. The main relief in the suit is not for declaration of any khatedari right. Revenue suit is already pending before the revenue court. The main relief is cancellation of adoption deed, which only civil court can grant. Without declaring the adoption deed as null and void plaintiffs cannot get khatedari rights over the agricultural land. Relief prayed by the plaintiffs in the suit for injunction is ancillary relief. Learned Trial Court did not commit any error in rejecting the application filed by the defendant - petitioner herein under Order 7 Rule 10 and 11 CPC seeking dismissal of plaint.
(Downloaded on 26/12/2022 at 01:04:22 AM)
(8 of 8) [CR-45/2021] In view of above, the present revision petition is dismissed.
(RAMESHWAR VYAS),J 99-Mak/-
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