Chunni Ram v. State — 1981 DIGILAW 262 (RAJ)

S.K. MAL LODHA, J.— These two revisions before me arise out of a common appellate-order dated September 11, 1980 of the Civil Judge, Bikaner. As the questions involved are common and as they were heard together, I consider it proper to dispose them of by a common order. 2. Civil Original Suit No. 82 of 1980: Chunniram vs. Nanak Ram and others was instituted in the court of Munsif, Bikaner on March 17, 1980. The suit is for declaration, perpetual and mandatory injunction and demolition. Along with the plaint, an application under O.XXXIX, rr. 1 and 2 and s. 151, C.P.C. was filed. The learned Munsif, by his order dated August 28. 1980 issued a temporary injunction restraining the defendants from not constructing the houses and Bares on field No. 458 situate in village Lalamdesar, tehsil Bikaner, of the petitioner. Feeling aggrieved, Appeal No. 37 of 1980 was filed by the defendants Nanakram and others. 3. Civil Original Suit No. 337 of 1980; Chunniram vs. the State and others was instituted on July 24, 1980 in the court of Munsif, Bikaner for declaring that the orders dated April 11, 1980 and July 7, 1980 are illegal, ineffective, void and liable to be set aside and perpetual injunction. An application under O. XXXIX, rr. 1 and 2 and s. 151, C.P.C. was also filed. The learned Munsif, Bikaner, by his order dated August 28, 1980, issued a temporary injunction directing the defendants not to establish school in the building, which is being constructed on the plaintiffs field. Civil Misc. Appeal No. 36/80 was preferred against the aforesaid order. The learned Civil Judge. Bikaner, by a common order dated September 11, 1980. accepted both the aforesaid appeals and set aside such of the two orders dated August 28, 1980. 4. Feeling dissatisfied, the plaintiff-petitioner has filed S.B. Civil Revision Petition No. 324 of 1980: Chunniram vs. State and others and on September 19, 1980. Aggrieved against the order passed in Civil Misc. Appeal No. 37 of 1980 dated September 11, 1980. S.B. Civil Revision No. 360 of 1980: Chunniram vs. Nanakram and others was filed on October 3, 1980. 5. Record of Civil Original Suit No 337 of 1980 and that of Civil Misc. Appeal No. 36 of 1980 have been received in S.B. Civil Revision No.324 of l980. Appeal No. 37 of 1980 dated September 11, 1980. S.B. Civil Revision No. 360 of 1980: Chunniram vs. Nanakram and others was filed on October 3, 1980. 5. Record of Civil Original Suit No 337 of 1980 and that of Civil Misc. Appeal No. 36 of 1980 have been received in S.B. Civil Revision No.324 of l980. In S.B. Civil Revision No 360 of 1980, learned counsel for non-petitioner No.2 Ramsukh. has filed the copy of the plaint dated April 17, 1980 in Civil Original Suit No. 82 of 1980. 6. Learned Civil Judge, Bikaner held that the two suits instituted by the petitioner are prima facie cognizable by a revenue court and that Civil Court has no jurisdiction to entertain and hear them. He set aside the orders of temporary injunction, which were passed by the learned Munsif on August 28, 1980. 7. I have heard the learned counsel for the parties and have carefully read the plaints filed on behalf of the plaintiff in each of the two suits. 8. Mr. Samdaria, learned counsel for the petitioner argued that the suit as instituted can be heard and determined by the Civil Court and as such, the learned Civil Judge, while setting aside the orders of the temporary injunction, which were passed by the learned Munsif on August 28, 1980, has failed to exercise jurisdiction vested in him by law. Mr. Samdaria submitted that the first appellate court should not have gone into the question of jurisdiction while disposing of the appeals filed against the orders of the Munsif dated August 28, 1980 granting temporary injunction. 9. As the above contention has been raised by the learned counsel for the petitioner, it has become necessary for me to decide whether the suits are cognizable by a civil court. 10. I specifically put to the learned counsel for the petitioner that if this point is decided in these two revisions, it will affect the decision of the objection raised on behalf of the defendants pertaining to the jurisdiction of the court, where the suits have been instituted. To this, learned counsel submitted that as the learned Civil Judge has set aside the orders of temporary injunction, which were passed by the learned Munsif, the question of jurisdiction may be decided by this Court and that the consequences ensuing therefrom will be acceptable to the petitioner. To this, learned counsel submitted that as the learned Civil Judge has set aside the orders of temporary injunction, which were passed by the learned Munsif, the question of jurisdiction may be decided by this Court and that the consequences ensuing therefrom will be acceptable to the petitioner. In these circumstances, I propose to decide the point of jurisdiction of the Civil Court in these revisions. For the purpose of determining the question of jurisdiction, whether the suit is exclusively triable by a revenue court and that a civil court has no jurisdiction to try the same, the averments made in the plaint are carefully to be looked into. 11. It was held by a full Bench of this Court in Badri vs. Moda (1), to which I was a party, as follows :- "For the purpose of seeing whether the suit is exclusively triable by a revenue court and the civil court has no jurisdiction to try the same, averments in the plaint are carefully to be looked into. All the allegations made in the plaint should be taken into consideration and not the relief alone claimed in the plaint for the purpose of determining the question of jurisdiction. The substance of the plaint provide a good guide to find out the true nature or the object of the suit" (Italick Supplied) In that case, Ram Awalarob vs. Jata Shankar (2), was noticed and followed. It was observed in Ram Awalambs case (2) that it is the cause of action which determines the jurisdiction of court and that the term "cause of action" though nowhere defined, means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. It was also held that in each and every case the cause of action of the suit shall have to be strictly scrutinised to determine whether the suit is solely cognizable by a revenue court or is impliedly cognizable only by a revenue court or is cognizable by a civil court. It was also held that in each and every case the cause of action of the suit shall have to be strictly scrutinised to determine whether the suit is solely cognizable by a revenue court or is impliedly cognizable only by a revenue court or is cognizable by a civil court. According to the aforesaid Full Bench decision, the main point for consideration in all cases where on a definite cause of action two or more relief can be claimed is which of the reliefs is the main relief and which relief or other reliefs are ancillary reliefs; once a suit is maintainable for the main relief in the civil court then there is no bar for the civil court to grant all possible reliefs flowing from the same cause of action. The determination of the question as to which out of the several relies arising from the same cause of action is the main relief will depend on the facts and circumstances of each case. The following principles were laid down in the aforesaid Allahabad case : (1) Where, on the basis of a cause of action the main relief is cognizable by a revenue court the suit would be cognizable by the revenue court only. The fact that the ancillary reliefs claimed are cognizable by civil court would be immaterial for determining the proper forum for the suit; (2) Where, on the basis of a cause of action the main relief is cognizable by the civil court, the suit would be cognizable by the civil court only and the ancillary reliefs which could be granted by the revenue court may also be granted by the civil court. In Shyamkumar vs. Budhsingh (3), Sachar, J., observed as follows :- "It is well settled that the question of jurisdiction, namely, whether a suitis exclusively triable by a revenue court or a civil court can take cognizance of it, has to be decided on the allegations made in the plaint. It is also further settled that it is the substance of the plaint and the true nature of the suit that is to be seen to determine the question of jurisdiction. It is also further settled that it is the substance of the plaint and the true nature of the suit that is to be seen to determine the question of jurisdiction. If in substance the relief claimed is one which the revenue courts alone are entitled to give the jurisdiction of the civil courts will be ousted even though it may require the revenue court, to incidentally determine some ancillary facts" D.P. Gupta, J , in Ratanlal vs. Gram Panchayat, Agolai (4) while dealing with the question of jurisdiction, observed that the question of jurisdiction has to be decided on the basis of averments made in the plaint and that not only the relief claimed in the plaint but all the allegations made therein should be taken into consideration for the purpose of deciding the question as to whether the suit is exclusively triable by the revenue court or not. He further observed : "The court must be guided by the substance of the plaint and not merely by its form Therefore, in order to arrive at a correct conclusion on the question of jurisdiction, the substance of the plaint must be taken into consideration to find out the true nature or the object of the suit." Keeping these principles in view, I would like to examine the plaint in suit No, 337 of 1980. In para 1 of the plaint, the plaintiff-petitioner has stated that he is a khatedar tenant of khasra No. 458 measuring 66 bighas 2 biswas. In para 3 of the plaint,it was stated that the persons,whose names are mentioned in para 3, misrepresented to the Government officials; that the plaintiff has died and he has no heir and as such have started raising construction for the school building. In para 8. the plaintiff has stated that officials of the State Government and the Panch of the Gram Panchayat, lalandesar and defendant No. 3 without getting the field in question converted into Abadi land and acquiring it, unauthorisedly raised construction and that this has adversely affected the khatedari rights of the plaintiff. The plaintiff has prayed that the orders dated April 11, and July 7, 1980 are illegal, ineffective and void and are liable to be set aside. The plaintiff has prayed that the orders dated April 11, and July 7, 1980 are illegal, ineffective and void and are liable to be set aside. He has also prayed that permanent injunction may be granted against the defendants whereby restraining them from establishing school in the building that no permission for running the school should be granted and that no such acts may be done by which a school is established in the plaintiffs field. 12. Mr. Samdaria submitted that the suit of the nature which the plaintiff-petitioner has instituted is not covered by any item of the Third Schedule of the Rajasthan Tenancy Act (No.III of 1955) (for short the Act herein). He referred to Ss. 89.90 and 91 of the Act and submitted that such a suit does not lie in a revenue court. He invited my attention to Dulabhai vs. State of M P. (5), wherein the principles regarding exclusion of jurisdiction of civil court were laid down. On the other hend, Mr. Rajendra Mehta, learned counsel for the non-petitioner submitted that in substance the plaintiff wants issuance of injunction to the effect that school not be established and allowed to run on his agricultural land as the orders are illegal, void and ineffective on the ground that it is a khatedari land. He submitted that the plaintiff will be entitled to get the reliefs prayed if he succeeds in establishing that he is a Khatedar tenant. According to the learned counsel for the non-petitioner, other reliefs asked for by the plaintiff are ancillary. The main relief is the vindication of the Khatedari rights and if that is not allowed, then the reliefs relating to the orders in question cannot be granted. He elaborated his argument by saying that according to the petitioner, the orders are void, ineffective and inoperative and if the orders are void then, their cancellation is not necessary. In this view of the matter, Mr. R. Mehta contended that the principal question is whether the plaintiff is the khatedar tenant of the Agricultural field and this relief can only be granted by a revenue court and not by the civil court. 13. I have considered the rival contentions of the parties. In this view of the matter, Mr. R. Mehta contended that the principal question is whether the plaintiff is the khatedar tenant of the Agricultural field and this relief can only be granted by a revenue court and not by the civil court. 13. I have considered the rival contentions of the parties. The first and the foremost question that, therefore, arises is whether plaintiff in required to establish in the suit that he is a khatedar tenant and if that is so whether the reliefs which the plaintiff has asked in respect of the orders in question can be granted by a revenue court. This brings me to consider the distinction between the void and voidable order. 14. CM. Lodha, J., as he then was, in Jagansingh vs. Chotey Lal (6)after considering s. 207 of the Act opined that in a suit where the main relief asked for by the plaintiff is restoration of possession of the property which is the subject-matter of the instrument, the question whether relief for cancellation must be asked for, would depend upon on answer to the other important question whether the instrument is void ab initio or is voidable and if the instrument is void-abl and the avoidance of the same is necessary, the relief for cancellation of the instrument is indispensable and in that case the revenue court can give no relief as long as the sale deed is not cancelled It was further hold that it would not be necessary to avoid the document and merely by proving that it was a void document, the plaintiff would certainly get the possession of the property without cancellation of the sale-deed. It was observed : "Now, in the present case the cause of action is no doubt the factum of sale alleged to be void ab-initio and the real and substantial relief is for possession of the land and the dwelling house standing thereon. That is the real contact between the parties and that is also the substance of the suit. This relief, it cannot be gainsaid can be granted only by revenue court and not by the civil court. In sudh circumstances the revenue court after coming to the conclusion that the document was completely void and ineffectual to pass the title to the transferee, can grant a decree for possession in favour of the plaintiff. This relief, it cannot be gainsaid can be granted only by revenue court and not by the civil court. In sudh circumstances the revenue court after coming to the conclusion that the document was completely void and ineffectual to pass the title to the transferee, can grant a decree for possession in favour of the plaintiff. In this view of the matter I have no doubt that the present suit is triable by revenue court." The question that arose in Gorakh Nath vs. M.N. Singh (7) was whether the suit for cancellation of a sale-deed pending on the date of notification under s. 4 of the U.P. Consolidation of Holdings Act (No. V of 1954) abates under s.3(2) of the aforesaid Act. Their Lordships noticed Jagannath Shukla vs. Sitaram (8) and approved it wherein it was laid down that preponderating weight, which is cast in favour of the view that questions relating to have validity of sale-deeds, gift deeds and wills could be gone into in proceedings before the consolidation authorities, because such questions naturally and necessarily arose and had to be decided in the course of adjudications on rights or interests in land which are the subject matter of consolidation proceedings. Their Lordships observed as under: "We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject matter of consideration proceedings. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject matter of consideration proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction, by the necessary implication of their statutory powers to abjudicate upon such rights and interests in land, to declare such documents effective or ineffective, but, where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidating authorities have no power to cancel the deed and, therefore, it must be held to be binding on them as long so it is not cancelled by a court having the power to cancel it, In the case before us, the plaintiffs claim is that the sale of his half share by his uncle was invalid, inoperative, and void, such a claim could be adjudicated upon by consolidation courts. We find ourselves in agreement with the view expressed by the Division Bench of the Allahabad High Court in Jagnannath Shuklas case 1969 All. LJ. 768, that it is the substance of the claim and not its form which is decisive" (Itelick supplied). In Rooda Ram vs. Rattu Ram (9), the analysis of the averments made in the plaint was as under: - (1) that the plaintiff is the khatedar of the field in dispute; (2) that defendant Ghisa Ram had no right whatsoever over this field; (3) Ghisaram could not have made any sale of the field; (4) that the sale made by Ghisa Ram in favour of the other defendants was in consequence null and void. The learned Judge observed as follows : "It will be thus evident that the real cause of action is to whom does the field in question belong. If it belonged to the plaintiff as he claimed, then the other reliefs that he might be claiming would follow as a matter of course. The learned Judge observed as follows : "It will be thus evident that the real cause of action is to whom does the field in question belong. If it belonged to the plaintiff as he claimed, then the other reliefs that he might be claiming would follow as a matter of course. Therefore, the crux of the matter is that the plaintiff is seaking vindication of his own khatedari rights in the field by the present suit and the connacted or collateral points that would arise for consideration would be about the validity of the sale made by Ghisaram. As observed by Modi J., and as it appears to be the tenor of Sec. 207 one has to look to the substance of the matter The reliefs that may be desired from a civil court need not be identical with the relief that could be granted or claimed from a revenue court but that is not a point of substance for determining the question as to whether the suit is triable exclusively by a revenue court or not. The burden of the section is the nature of the cause of action. I am, therefore, satisfied that the suit is of the nature triable by a revenue court and is covered squarely by the provisions of Sec. 207. Tenancy Act. The courts below were, therefore, in error in holding that the civil court had jurisdiction to try the suit." (Itelick added). In Moher Singh vs. Wazir Chand (10), one P was the khatedar tenant of the land; after his death his widow Smt. T. executed a sale deed in respect of the land in favour of N and others. P had left a son named U, who filed the suit in the Court of Civil Judge for a declaration that after the death of P, he was the sole Khatedar tenant of the land in suit and his mother bad no right to alienate it and for an injunction to restrain the defendants from interfering with his possession over it. While resisting the suit, an objection was raised that the Civil court had no jurisdiction to try it. While resisting the suit, an objection was raised that the Civil court had no jurisdiction to try it. Jagat Narayan, J., as he then was observed : "So far as the present case is concerned the revenue court is competent to grant a declaration under Sec. 88 (1) of the Tenancy Act, that "the plaintiff is the sole Khatedar tenant of the land in suit." It can grant an injunction under section 92-A of the Act against the defendant in whose favour the sale-deed has been executed restraining them from interfering with the plaintifls possession over the land in suit. This relief is adequate in the circumstances of the present case and is the substantial relief which the plaintiff wishes to claim. He will only be declared to be the sole khatedar tenant on the finding that he was the sole heir of his father Pyare Ram and that his mother Smt. Tikki Bai had no interest in the land in suit entitling her to execute a sale-deed in respect of it." Before a learned single Judge of the Allahabad High Court in Ram Roop Budhiya (11), the question regarding jurisdiction of the civil court arose. The suit was for the cancellation of the sale deed of agricultural land and declaration of title as sirdar of the land. The plaintiff alleged the sale-deed to be void as obtained by fraudulent misrepresentation. The suit was instituted in a civil court. It was decided, inter alia, on the ground that the suit was not cognizable by the civil court. The plaintiff alleged the sale-deed to be void as obtained by fraudulent misrepresentation. The suit was instituted in a civil court. It was decided, inter alia, on the ground that the suit was not cognizable by the civil court. The learned Judge observed as follows: "In this way the position is that if the document is void in law, the revenue court is the proper court for seeking redress, but if a document is voidable, the civil court can take cognizance of the case for avoiding it." After considering the allegations of the plaint, the learned Judge further observed as under: "Therefore, in order to obtain possession or to obtain declaration of her status as sirdar she could easily sue in the revenue court The lower appellate court was not justified that the suit was essentially for adjudging the sale deed void on the ground of fraud and misrepresentation." In Kanmal vs. the State of Rajasthan (12), a contention was raised that the revenue court has no jurisdiction to decide as to whether the order passed by the Revenue Secretary was without jurisdiction, whether it offended principles of natural justice and whether it was void as it violated the fundamental rights conferred on the applicants under Art. 19(l)(f) of the Constitution. Jagat Narayan J , as he then was, while repelling the aforesaid contention, held that the revenue court has jurisdiction to consider and adjudicate upon these matters and to grant the relief sought by the applicants in the present suit. It was observed: "If the Revenue Secretary has no jurisdiction to pass the order in question the revenue court is fully entitled to declare that it is void and inoperative and to grant a perpetual injunction against the State of Rajasthan, the Collector and the Tehsildar restraining them from enforcing it." 15. Now the relevant sections of the Act may be noticed. 16. In Chapter VIII of the Act, ses. 88, 91 and 92 A occuer. S. 88 provides for suits for declaration of right Sub-s. (1) of s. 88 says that any person claiming to be a tenant or a co-tenant may sue for a declaration that he is a tenant or for a declaration of his share in such joint tenancy S 91 is residuary one and deals with a suit for declaration of other rights. S. 92A deals with suit for injunction. S. 92A deals with suit for injunction. It says that any person may sue in respect of his rights conferred by this Act for an injunction and in accordance with and subject to the provisions of Chapter X of the Specific Relief Act, 1877. Ss 183 and 188 are contained in Chapter XL S. 183 provides for ejectment of certain trespassers. S. 188 deals with injunction against wrongful ejectment. Sub-s. (1) thereof lays down that any tenant whose right to or enjoyment of the whole or a part of his holding is invaded or threatened to be invaded by his land-holder or any other person, may bring a suit for grant of a perpetual injunction. S 5(44) defines trespasser meaning a person who takes or retains possession of land without authority or who prevents another person from occupying land duly let out to him. 17. Having regard to allegations made in paras 3, 8 and 9 of the plaint, the substance of it appears to be that the plaintiff wants to establish his khatedari rights in respect of field in question and the crux is that vindication of khatedari rights. The orders in question, according to the petitioner, are void, ineffective and inoperative and not binding. The order in question pertains to the running of the school and these orders, by no stretch of imagination will change the nature of the suit. The plaintiff will nonetheless be required to establish his khatedari rights on the field in question. 18. Keeping in view the distinction of void and voidable orders as laid down in Roodarams case (9), Mohar Singhs case (10), Ram Roops case (11) and Kanmals case (12), 1 am disposed to think that the suit is cognizable by a revenue court. 19. Now I take up S.B. Civil Revision No. 360/1980. 20. This revision arises out of suit No. 82 of 1980. The suit is for declaration, perpetual and mandatory injunction and demolition. Copy of the plaint in Civil Original Suit No. 82 of 1980 was filed by Mr. R. Mehta on April 16, 1981. In para 1 of the plaint, the plaintiff has stated that Khasra No. 458 measuring 66 bighas 2 biswas is of his khatedari and stands in his name. In para 4, it has been stated that the defendant has unauthorisedly entered the field and is raising construction. R. Mehta on April 16, 1981. In para 1 of the plaint, the plaintiff has stated that Khasra No. 458 measuring 66 bighas 2 biswas is of his khatedari and stands in his name. In para 4, it has been stated that the defendant has unauthorisedly entered the field and is raising construction. The fact of instituting the suit in the court of S.D.O. (North) on April 17, 1980 was also mentioned. The plaintiff has prayed for issuance of mandatory injunction for demolition of the houses on Khasra No. 458 and perpetual injunction Sec. 92A of the Act deals with suit for injunction, according to which an injunction can be granted in respect of all or any right conferred by this Act subject to the provisions of Chapter X of the Specific Relief Act, 1877 (Central Act I of 1877). Chapter X of the Specific Relief Act, 1877 contains s. 54 to s. 57 relating to perpetual and mandatory injunction corresponding to Chapter VIII of the Specific Relief Act, 1963 which contains Ss. 38 to 42. Provisions of ss. 38 to 42 of the Specific Relief Act, 1963 lays down the principles governing grant of perpetual injunction (as stated in s. 38), circumstances in which the court may in exercise of discretion prohibit breaches of obligations etc. or violation of rights and compel performance of requisite acts complained of in the form of prohibitory or mandatory injunction as stated in s. 39. I have considered the substance of the plaint and allegations made in para 8 in particular. It is thus, clear that the suit cleary falls under serial No 8A of the Third Schedule of the Act What Mr. Samdaria contends is that relief for demolition of the building already constructed is not covered by the third Schedule. They argument in my opinion, is futile, for, such a suit is covered by s. 92A of the Act. 21. In these circumstances, the learned Civil Judge was, therefore, right in holding that suit No. 82/80 cannot be tried and heard by a civil court. In view of the fact that both the aforesaid suits were not triable by a civil court, the learned Civil Judge was right in vacating the temporary injunctions granted on August 28,1980. The order dated September 11, 1980 passed in Civil Misc. Appeals No. 36/80 and 37/80 calls for no interference by this Court. 22. In view of the fact that both the aforesaid suits were not triable by a civil court, the learned Civil Judge was right in vacating the temporary injunctions granted on August 28,1980. The order dated September 11, 1980 passed in Civil Misc. Appeals No. 36/80 and 37/80 calls for no interference by this Court. 22. The result is that S.B. Civil Revision Petition No. 324 of 1980 and S.B. Civil Revision No. 360 of 1980 have no force and they are, accordingly, dismissed In the circumstances of the case, the parties are left to bear their own costs of these revision petitions.