Rajasthan High Court - Jodhpur
Modu Ram vs . on 16 February, 2015
Author: Arun Bhansali
Bench: Arun Bhansali
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:ORDER :
S.B. CIVIL WRIT PETITION NO.2866/2014
Modu Ram
v/s.
Board of Revenue & Ors.
Date of Order :: 16.2.2015
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. G.R. Punia, Senior Advocate assisted by
Mr. Rajesh Punia, for the petitioner/s.
Mr. I.R. Choudhary) for the respondent/s.
Mr. K.R. Choudhary)
Mr. Vikas Bijarnia )
-----
BY THE COURT:
This writ petition is directed against the orders dated 6.6.2013 and 7.2.2014 passed by the SDO, Makrana, District Nagaur and the Board of Revenue ('Board') respectively, whereby the application filed by the petitioner under Order VII, Rule 11 CPC has been rejected by the SDO and the revision petition arising therefrom has also been rejected by the Board.
The respondents No.2 to 4 Kunni Devi, Anni Devi and Sugani Devi all daughters of Harkaran filed a suit for declaration, partition and permanent injunction before the SDO, Makrana against their brothers Modu Ram, Ramu Ram and Dharma Ram and transferee Hukma Ram besides State and Sub-Registrar with the averments that the agriculture land in dispute ad measuring 2 91 Bigha 16 Biswa was recorded in the name of their father Harkaran Ram and was their parental land; Harkaran Ram expired in Samwat 2029 intestate and in terms of Section 8 of the Hindu Succession Act, 1956 ('the Act'), the plaintiffs (daughters), sons and the widow are his successors, at the time of father's death, their mother was alive, however, she has also expired. It was alleged that the plaintiffs are illiterate women, defendant No.1 Modu Ram had malafide intentions from the beginning and therefore, after death of their father, the suit land was got mutated in the name of brothers only, mutation entries are mere fiscal in nature and the plaintiffs are entitled to get their right declare at any point of time; the land was not partitioned, at the time of death of their mother, six brothers and sisters agreed to partition 15 Bigha land each after leaving uncultivable land, however, the partition by metes and bounds did not take place.
It was further contended that the defendant No.1 taking advantage of mutation entries clandestinely sold 18 Bigha land to defendant-Hukma Ram; Modu Ram could not sold more than 15 Bigha land and therefore, the sale deed dated 29.10.2012 was only a paper transaction and the purchaser does not get any right; the transfer was illegal and was liable to be cancelled; the plaintiffs have 1/6th share each and they get 15 Bigha land each and are entitled to get their tenancy rights declared and get the land partitioned by metes and bounds at the site. It was claimed that the sale deed dated 29.10.2012 was illegal & void and, therefore, the defendant cannot claim any right in the land. It was claimed that balance of convenience was in plaintiffs' favour. 3 It was ultimately prayed that tenancy right of the plaintiffs be declared, it be held that the plaintiffs and defendants No.1 to 3 were entitled to 1/6th share each and the same be partitioned by metes and bounds and the sale deed dated 29.10.2012 in favour of defendant No.4 be declared illegal.
On notice being served, the defendants No.1 to 4 filed application under Order VII, Rule 11(d) CPC, inter-alia, claiming that State of Rajasthan has not been impleaded as party, who is a necessary party under Section 79(b) CPC, the suit has been filed in violation of provisions of Section 80 CPC and the suit was barred under Section 207 of the Rajasthan Tenancy Act, 1955 ('the Act') as the petitioner has sought declaration regarding the sale deed dated 29.10.2012 as illegal.
A reply to the application was filed by the plaintiffs denying the contentions raised in the application, it was claimed that the suit was maintainable under Sections 88, 83 & 188 of the Act and the application was liable to be dismissed.
After hearing the parties, the SDO came to the conclusion that the suit was filed for declaration of tenancy right and permanent injunction, which was triable by the court and rejected the application filed by the petitioner.
Feeling aggrieved, the petitioner filed revision petition before the Board, the Board came to the conclusion that the plaint filed by the plaintiffs is not, in any way, hit by provisions enshrined in Order VII, Rule 11 CPC and therefore, the trial court has not committed legal or jurisdictional error by passing the impugned order and dismissed the revision petition.
It is submitted by learned counsel for the petitioner that 4 both the authorities below committed grave error of law in dismissing the application filed by the petitioner.
Admittedly, the suit was filed seeking cancellation of the sale deed executed by the petitioner in favour of defendant No.4, jurisdiction to grant which relief only lies with the civil court. It was contended that the Schedule III attached to the Act does not envisage filing of the suit for cancellation of a registered document before the revenue court; the relief of cancellation of the sale deed was the main relief and the relief relating to declaration and partition was merely ancillary and as the main relief was triable by civil court, the suit before the revenue court was not maintainable and therefore, both the authorities committed grave error in dismissing the application.
Reliance was placed on judgments of this Court in Bhanwaroo Khan & Ors. v. Azim Khan & Ors. : 1993(1) WLC (Raj.) 491, Smt. Dev Bai v. Addl. Civil Judge No.1, Kota & Ors. :
2012(3) WLC (Raj.) 289 and Pratapi (Smt.) v. Jhamku & Ors. :
2013(3) DNJ (Raj.) 1112.
Vehemently opposing the contention raised on behalf of the petitioner, learned counsel for the respondents submitted that the relief of declaration of khatedari rights and partition sought in the suit were the main relief and cancellation of the sale deed was ancillary and therefore, the suit was maintainable only before the revenue court. It was further submitted that the claim of the plaintiffs was that the sale deed was wholly void and nullity and therefore also the suit was triable only by the revenue court and therefore, both the authorities were justified in rejecting the application.5
Reliance was placed on Jaswant Singh v. Board of Revenue : 1984 RLW 573 and Rukmani v. Bhola & Ors. : (2012) 4 RLW (Raj.) 3050.
I have considered the rival submissions made by learned counsel for the parties.
At the outset certain provisions needs to be noticed. Order VII, Rule 11(d) CPC provides as under:-
"ORDER VII Rule 11. Rejection of plaint.- The plaint shall be rejected in the following cases :-
(a)- ..... ...... ...... ...... ...... ......
(b)- ..... ...... ...... ...... ...... ......
(c)- ..... ...... ...... ...... ...... ......
(d)- where the suit appears from the statement in the plaint to be barred by any law;"
Section 207 of the Act reads as under :-
"207. Suits and applications cognizable by revenue court only- (1) All suits and applications 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."
Section 242 of the Act reads as under :-
"242. Procedure when plea of tenancy rights raised in Civil Courts - (1) If, in any suit relating to agricultural land instituted in a civil court, any question regarding tenancy right arises and such question has not previously been determined by a revenue court of competent jurisdiction, the civil court shall frame an issue on the plea of tenancy and submit the record to the appropriate revenue court for the decision of that issue only.
Explanation - A plea of tenancy which is clearly untenable and intended solely to oust the jurisdiction of the civil court shall not be deemed to raise a plea of tenancy.
(2) The revenue court, after re-framing the issue, if necessary, shall decide such issue only, and return the record together with its finding thereon, to the civil court which submitted it.
(3) The civil court shall then proceed to decide the suit, 6 accepting the finding of revenue court on the issue referred to it.
(4) The finding of the revenue court on the issue referred to it shall, for the purpose of appeal, be deemed to be a part of the finding of the civil court."
In the present suit, the claim of the plaintiffs, daughters of Harcharan Ram, had been that their father died intestate and they being first class heirs succeeded to the agriculture land ad measuring 91 Bigha 16 Biswa held by their father alongwith their three brothers and were entitled to 1/6th share as their mother had also died on the date of filing of the suit; one of the brothers having sold land in excess of his share, the transfer was claimed to be void and the relief claimed in the suit was for declaration of their khatedari rights, partition by metes and bounds and cancellation of the sale deed.
The relief claimed in the suit reads as under:-
"(14)---यह ह क अनत ष व द गण ननमनल ख त ह :-
अ:-----ग म व बड जम न सर न". 18 र ब
89 ब घ 16 बबसव , सर न". 18/1 र ब 18 बबसव ,
सर न". 17 र ब 1 ब घ 02 बबसव र ब 91
ब घ 16 बबसव म& पतय) व ददन 1/6 दहसस)
त)द र घ षषत फरम ई ज न) ) आद) श पद न र व)।
ब:----- यह ह क उक व दगसत सर न म& पतय)
वदन 1/6 व " दहसस एव" पनतव द न". 1 स) 3
1/6 व " पतय) ब ई म टस एण6 ब उन6स ब"टव र
रव र सवतन9 त)द र म& घ षषत फरम ई ज न)
:प र व)।
स:-----ददन " 29.10.2012 पनतव द न". 1 द र बबन
अध> र ) क य) गय) पनतव द न". 4 ) ब)च न
न@न सममत नह " ह न) स) अव)> घ षषत फरम य
ज व)।"
The issue regarding the jurisdiction of civil court / revenue court and as to whether under the provisions of Section 207 of the Act such a suit was barred before civil court is not a new dispute and there are plethora of judgments dealing with the above subject matter, few of which have been cited by learned 7 counsel for the parties.
In the case of Jaswant Singh (supra), a Division Bench of this Court inter-alia observed and held as under:-
"9. Now Section 207 of the Rajasthan Tenancy Act, 1955 provides that all suits and applications of the nature specified in the Third Schedule shall be heard and determined by a Revenue court and further it has been provided that 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. The explanation appended to Section 207 provides that 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 may possibly grant. Section 88 of the Tenancy Act provides for filing of a suit for declaration by a person claiming to be a tenant, in respect of his right as a tenant or for declaration of his share in a joint tenancy. Further Section 183 of the Tenancy Act provides for filing a suit for ejectment of a trespasser who has taken or retained possession of land without any lawful authority. The suits covered by section 88 and 183 of the Tenancy Act are included at items No. 5 and 23 respectively in the Third Schedule appended to the Tenancy Act. Thus in respect of matters covered by the aforesaid items included in the Third Schedule, the Revenue courts alone have exclusive jurisdiction to entertain suits, for declaration of the plaintiff's right as a tenant of agricultural land and for ejectment of a trespasser therefrom. According to the provisions of Section 207 of the Tenancy Act, the jurisdiction of the Revenue court to try a suit of the nature specified in items No. 5 and 23 relating to agricultural tenancies, would be based on the cause of action for filing such suit. The term 'cause of action', though no where defined is now very well understood. It means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. (See Mohd Khalil Khan v. Mahbub Ali Mian (6). It follows that in each and very case the cause of action for filing of the suit shall have to be strictly scrutinised in order to determine whether the suit is exclusively cognizable by a Revenue court or is impliedly cognizable only by a Revenue court or is cognizable by a Civil court. If more than one reliefs are claimed in the suit, then the jurisdiction of the Civil or Revenue courts to entertain the suit shall be determined on the basis as to what is the real or substantial or main relief claimed in the suit.
21. Thus upon a consideration of the several cases of this Court on the point, it clearly emerges that if the suit was filed by the plaintiff for possession treating the deed as wholly void or a nullity, then a prayer for cancellation of the deed was unnecessary and was not required to be made by the plaintiff, who could ignore the void document. In such cases there was no unsurmount-able difficulty in the way of the plaintiff in seeking relief by way of declaration of tenancy rights 8 and claiming possession before a competent Revenue court. The present case is not one in which the alleged sale-deed was admitted to have been executed by the plaintiff or her predecessor-in-interest or that she sought to avoid the same on the ground that she was made to execute the deed by fraud or misrepresentation. The plaintiff claimed in the suits that sale-deeds were not executed by her. In such circumstances the sale-deeds were alleged to be void and not voidable and the same could be ignored by the plaintiff.
22. We, therefore, agree with the learned Single Judge that the three suits, relating to which these appeals have been filed, are exclusively triable by the competent Revenue courts. Consequently, the orders passed by the Board of Revenue for Rajasthan as well as by the learned Single Judge of this Court are affirmed. All the three appeals are, therefore, dismissed. The parties are left to bear their own costs.
In the case of Bhanwaroo Khan (supra), wherein the suit was filed before the civil court, wherein besides claiming declaration regarding tenancy rights cancellation of the document was also sought, it was held that the suit was not barred under Section 207 before the civil court. It was, inter-
alia, observed and held as under:-
"5. The next question which requires consideration is whether Section 207 of the Rajasthan Tenancy Act, which ousts the jurisdiction of all other Court except the Revenue Court to the try the suit contemplates types of declaratory suits relating to the agricultural land or the declaratory suits of the special type only. Sub-section (2) of Section 207 of the Act states that no Court other than the 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 a relief could be obtained by means of such suit or petition. Section 207 of the Act, therefore, does contemplate all kinds of declaratory suits of specific type mentioned in Sections 88 and 89 of the Act and included in the Schedule-III, appended to it. The view taken by me finds support from the view taken by the Hon'ble Supreme Court of India in : Bismillaha Versus Janeshwar Prasad and ors. (A.I.R. 1990 S.C. 540). Thus, according Section 207 of the Act, Revenue Court has alone the exclusive jurisdiction to try the suit with respect to declaratory suits covered by Sections 88 to 91 of the Act and Schedule-III. The present suit does not fall within the purview of Sections 88 to 91 of the Act as the suit is necessarily for cancellation of the sale-deed. The suit is, therefore, triable by the Civil Court and the learned lower Court committed an error in holding that the suit is triable by the Revenue Court."
In the case of Smt. Dev Bai (supra), again the dispute 9 pertained to the cancellation of sale deed of agriculture land before the civil court and it was observed as under:-
"8. In view of the above settled legal position, it clearly transpires that the court while considering the application under Order VII Rule 11(d) of CPC has to take into consideration only the averments made in the plaint and pleas taken by the defendants in the written statement would be wholly irrelevant at that stage. So far as the facts of the present case are concerned, the suit has been filed by the petitioner-plaintiff seeking cancellation of the sale deed executed by the deceased Mangibai in favour of the deceased Pratap, the father of the respondents-defendants. Such a prayer could be granted only by the civil court and not by revenue court. It is true that section 207 of the Rajasthan Tenancy Act bars the jurisdiction of the civil court for the suits specified in the third schedule. However, the relief claimed by the petitioner-plaintiff in the instant suit, being not specified in the said third schedule, it could not be said that the suit is barred by the Tenancy Act."
In the case of Pratapi (supra), after comprehensively dealing with all the judgments, also in a suit filed before the civil court claiming declaration of khatedari rights and cancellation of sale deed, it was observed and held as under:-
"18. In the backdrop of the position of law settled by various decisions discussed as above, there cannot be any quarrel with the proposition that when in a suit ancillary relief to the main relief sought is for declaration of a sale deed of 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 regarding the cancellation of the sale deed even in respect of an agriculture land could be exclusively tried by the civil Court.
19. Adverting to the facts of the present case, it is to be noticed that in the instant case, the respondent/plaintiff has filed the suit essentially for cancellation of the sale deed executed by the petitioner/defendant on the ground that she is not holding any share in the disputed land. Of course, while praying for the cancellation of the sale deed and injunction against the petitioner/defendant not to interfere with the petitioner's possession over the disputed land, the plaintiff has also claimed partition of the land by meets and bounds impleading the co- sharers as party to the suit the relief which could have been claimed by the petitioner by a filing a suit before the Revenue Court even independent of the relief for cancellation of the sale deed claimed as above. But on that account, the suit filed by the 10 plaintiff against the petitioner/defendant for cancellation of the sale deed cannot be considered to be barred by virtue of provisions of Section 207 of the Act. In considered opinion of this Court, the plaint as framed discloses the cause of action against the petitioner/defendant in respect of the cancellation of sale deed and for the injunction as prayed for an further, the relief for cancellation of the sale deed sought in the suit being the main relief, it has to be necessarily tried by the civil Court and cannot be treated to be exclusively triable by the Revenue Court, as claimed on behalf of the petitioner/defendant."
In the case of Rukmani (supra), where the plaint was returned by the civil court for filing the same before the Revenue Court, this Court while dealing with a subject matter similar to the matter in hand and the issue as to in a suit for declaration and partition, the cancellation of the sale deed was ancillary relief or not held as under:-
"7. In the present case, the relief claimed in the suit is that the sale deed dated 4.7.85 may be cancelled on the ground that the land which has been transferred by way of this sale deed is an ancestral property, and therefore, the deceased-husband of the plaintiff, who was son of defendant-respondent-Shri Bhola had ½ share in it and the remaining ½ share belongs to Shri Bhola and after the death of her husband, the plaintiff has ½ share in it. It is an admitted fact that the whole of the disputed land is recorded in revenue record only in the name of defendant-Shri Bhola. It has been averred by the defendants that the land in dispute is not an ancestral property and, therefore, son of defendant had no right in the life time of his father and, therefore, plaintiff also has no right in it. Thus, the main question to be determined is that whether the land in dispute is an ancestral property and, therefore, the deceased- husband of the plaintiff had ½ share in it and was co- tenant alongwith his father the defendant-Shri Bhola. It is well established that in order to determine the true nature of the relief claimed in a suit, the pith and substance and not the form in which the relief may be couched has to be considered. On considering the pleadings in the plaint in the present case carefully and applying the doctrine of pith and substance of the pleadings, I have come to the conclusion that the relief claimed in the suit really amounted to a relief for a declaration that the deceased-husband of the plaintiff and after his death the plaintiff has ½ share and is co- tenant in the land in question. The suit in the present case cannot be said to be one for mere avoidance of the sale deed dated 4.7.85. In my view unless a clear finding is given that the plaintiff is a co-tenant and has ½ share in the land in question, the sale deed in question cannot be cancelled. It cannot be said in the present case that unless the sale deed is cancelled, the revenue court cannot grant a declaration as to the share of the plaintiff in the land in question. As the plaintiff or 11 her deceased-husband is not a recorded khatedar of the land in dispute, in my view, unless a revenue Court by way of a revenue suit declares under Section 88 of the Act that the deceased-husband of the plaintiff and after his death the plaintiff has ½ share or any other share and thus, is a co-tenant alongwith defendant-Shri Bhola in the land in dispute, the Civil Court cannot cancel the sale deed only on the prayer made by the plaintiff- appellant. It is well settled that a suit for cancellation of a deed affecting certain property can be brought by a person who cannot establish his title to the property so long as such deed is not cancelled. That would be so, in the case of a person, who was a party to the deed or was otherwise bound by it in law. It is also well settled that it is not necessary for a third party to a deed i.e. which is neither a party thereto nor is bound by it, to bring a suit for cancellation of the deed in question. In such a case it is not necessary for the plaintiff to get the sale deed cancelled in order to be entitled to the relief claimed by him. In the present case also, the plaintiff or her husband is not a party to the sale deed in question, therefore, it is not necessary for the plaintiff to get it cancelled as she or her husband is not bound by it. If the substance of the pleadings and relief claimed by the plaintiff-appellant is considered in a right perspective, it is clear that the plaintiff by means of the present suit is seeking a relief of declaration in her favour that she is khatedar tenant/co-tenant of ½ share of the land in dispute alongwith the defendant. The land in dispute being an agricultural land, such declaration can be given only by a revenue court under the provisions of the Act. It cannot be disputed that a suit for declaration regarding an agricultural land is to be filed under Section 88 of the Act if a person claims to be tenant or a co- tenant in the agricultural land in dispute. Section 207 of the Act provides that all suits of the nature specified in the third schedule shall be heard and determined by a revenue court and no other court other than a revenue court shall take cognizance of any such suit. In Item 5 of the third schedule a suit for declaration under Section 88 of the Act has been mentioned. I am also of the view that if the revenue court passes a decree for declaration in favour of the plaintiff to the effect that she is khatedar-tenant or co-tenant of ½ or any other share in the land in dispute, that court is equally competent to grant a consequential relief to the effect that the sale deed in question is void and ineffective to the extent of share of the plaintiff and it is not essential for the plaintiff to file a separate suit thereafter in a civil Court for getting the sale deed cancelled. I am also of the view that if the revenue court declares the plaintiff-co-tenant of the land in dispute, it is not necessary for her to get the sale deed cancelled as that would be automatically void and ineffective to the extent of share of the plaintiff."
A bare reading of the conclusions arrived at in various judgments reveals that in all the judgments cited, the court was considering as to whether the suit was barred under Section 207 before the civil court. In the present case, the suit has been filed before the Revenue Court and the plea raised is that the suit is 12 barred before the Revenue Court, no provision of law has been cited barring the jurisdiction of the Revenue Court.
So far as the provisions of Section 207 are concerned, the same simply bars the jurisdiction of the courts other than Revenue Court to take cognizance of the suit and the application of the nature contained in Schedule III.
So far as the plea raised by learned counsel for the petitioner that the jurisdiction to cancel the sale deed is exclusively with the civil court and therefore, the same is necessarily barred before the Revenue Court, is concerned, the said aspect has been comprehensively dealt with in the case of Jswant Singh (supra) and Rukmani (supra), wherein it has been held that if the sale deed is claimed to be void and / or the cancellation thereof is merely ancillary to the main relief of declaration and partition, the said relief can be granted by the Revenue Court as well and it cannot be said that the jurisdiction of the Revenue Court is affected thereby.
Further interestingly, an important provision contained in the Act i.e. Section 242 has to be noticed which mandates that even before the civil court, if the issue pertaining to the tenancy rights if raised / arises, the civil court after framing an issue is required to submit the same to the appropriate Revenue Court for decision of that issue.
A Full Bench of this Court in Badrilal v. Moda : AIR 1979 (Raj.) 142, while considering the provisions of Section 242 of the Act dealt with the procedure to be followed in the suit containing two reliefs, one triable by civil court and other by the Revenue Court and opined that as one of the relief relates to the tenancy 13 right, the civil court will have to frame an issue on the plea and submit the record to the appropriate Revenue Court for decision of that issue only and it will be necessary to refer only the issue relating to claim of tenancy right to the Revenue Court otherwise the suit remains with the civil court.
In view of the express provisions of Section 242 of the Act, when admittedly, the relief claimed pertains to declaration of tenancy rights and partition which relief can be granted by the Revenue Court and as held by this Court in the case of Rukmani (supra) the relief of cancellation is merely ancillary, it cannot be said that the orders passed by the SDO and the Bord require any interference by this Court.
In view of the above discussion, there is no substance in the writ petition, the same is, therefore, dismissed.
No order as to costs.
(ARUN BHANSALI), J.
rm/-