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1997 DIGILAW 400 (RAJ)

Nathu v. Bhanwarlal

1997-03-19

G.L.GUPTA

body1997
Honble GUPTA, J.–This second appeal has been preferred by defendant Nathu against the Judgment and decree passed by the learned District Judge, Bhilwara on 19.12.1980 whereby he amended the decree dated 19.10.1978 passed by the learned Munsif Magistrate, Shahpura. (2). The relevant facts are that defendant-respondent No.2 Mishri had agricul- tural land number 552/1 and 552/2 in village Dohriya. He sold it for Rs. 400/- to plaintiff Bhanwarlal vide registered sale deed dated 10.7.1961. Thereafter vendor (Mishri) took the land from the plaintiff for cultivation on `Theka basis. As he did not vacate the land on the expiry of the term of `Theka a suit was filed in the revenue Court by Bhanwarlal, (plaintiff) which was decreed. When that decree was put in execution, objections were raised. It came to the knowledge of the plaintiff that vendor Mishri had sold this land to Nathu also for Rs. 1,000/-. It was, therefore, prayed in the plaint that the sale deed executed by defendant Mishri in favour of defendant Nathu be cancelled and possession of land No.552/1 be given to him. The suit was resisted by defendant Nathu. Amongst other grounds it was pleaded that the civil Court had no jurisdiction to entertain the suit. However, Mishri vendor accepted the plaintiffs case. The trial Court framed 8 issues. After recording the evidence and hearing the parties, the learned Munsif held under issue No.7 that the Court had jurisdiction to hear the matter. He eventually decreed the suit in part for possession of 11 biswas of land of Khasra No. 552/1 only. The other relief for cance- llation of sale deed was refused. The plaintiff Bhanwar Lal preferred appeal before the learned Distt. Judge who by his judgment dated 19.12.1980 allowed the appeal. Decree for cancellation of the sale deed was passed, but decree for possession was refused. Hence, this second appeal by defendant Nathu. (3). Cross objections have also been filed by the respondent Bhanwarlal pra- ying that the entire suit ought to have been decreed. (4). I have heard the contentions of the learned counsel for the parties. (5). The main question for determination is whether the Civil Court had jurisdiction to entertain this suit. (6). The contention of Mr. Ojha, learned counsel for the appellant was that the suit was filed for possession of the land and so it was essentially a suit triable by Revenue Court. (5). The main question for determination is whether the Civil Court had jurisdiction to entertain this suit. (6). The contention of Mr. Ojha, learned counsel for the appellant was that the suit was filed for possession of the land and so it was essentially a suit triable by Revenue Court. He placed reliance on the cases of Rooda Ram vs. Rattu Ram (1), Asala vs. Narain (2) and Shankerlal vs. Dhulilal (3). (7). On the other hand Mr. Gupta, learned counsel for the plaintiff respondent contended that the main relief claimed in the suit was the cancellation of the decree and possession is ancillary matter and therefore, the suit was triable by the Civil Court. He placed reliance on the case of Shyam Kumar vs. Budh Singh (4), and Bhanwaroo Khan vs. Azim Khan (5). (8). In all the cases relied on by the learned counsel for the parties it has been observed that the jurisdiction of the Court will depend upon the substance of the suit. If the main relief of the suit is the cancellation of the sale deed and the other relief is incidental the suit is essentially triable by the Civil Court. However, if the suit is for declaration of the Khatedari right or possession on account of those rights it would certainly be a suit coming in the third Schedule of the Rajasthan Tenancy Act, 1955. In the instant case it is not in dispute as to who was the khatedar of the land in question. Admittedly it belonged to defendant No.2 who according to the plaintiff sold it to him and thereafter he sold the same to defendant No.1. The plaintiff in this case is not seeking vindication of his khatedari rights of the land, as was the position in the case of Rooda Ram (supra) in that case the plaintiffs case was that he was the khatedar of the land and defendant who sold the land to vendee had no right over the land. Thus obviously the plaintiff in that case had sought declaration of his khatedari rights in the field. So also in the case of Asala (supra) the main allegation of the plaintiff was that the plaintiff was the real person who was in cultivatory possession of the land and he has not made party to the proceedings before the Anti Ejectment Officer or before the Revenue Board. So also in the case of Asala (supra) the main allegation of the plaintiff was that the plaintiff was the real person who was in cultivatory possession of the land and he has not made party to the proceedings before the Anti Ejectment Officer or before the Revenue Board. It was averred that the plaintiffs were seeking the establishment of their rights that though they were the Muafidars of the land along with some defendants but at the same time they were the persons in actual cultivatory possession thereof i.e. they were the real tenants of this land. It is on these facts that this Court held that the suit was triable by the Revenue Court. (9). In the case of Shyam Kumar (supra) facts were that a sale deed was executed by a person claiming to be holder of power of attorney from the plaintiff. When the plaintiff came to know about it he filed a suit for cancellation of the sale deed. This Court held that the suit was triable by the Civil Court. In that case, the following observation of learned Chief Justice Jagat Narain, J. (as he then was) in the case of Lal Singh vs. Tej Singh (6) were quoted: ``The relief of the cancellation of sale deed or a decree can only be granted by a civil Court and not by revenue Court. (10). I fully agree with the observations made in the case of Shyam Kumar (supra) and Lal Singh (supra). (11). As already stated, in the present suit it was averred that the plaintiff was given symbolic possession by defendant under the sale deed Ex. 1 dt. 14.6.1961registered on 10.7.1961 but thereafter defendant Mishri executed sale deed in favour favour of defendant No.2 and, therefore, the rights of the plaintiff were adversely affected. Such a suit has rightly been held to be triable by a Civil Court and no fault can be found in the findings of the two Courts below. (12). Coming to the point of possession it was frankly conceded by Mr. Gupta that the possession was being sought under the decree passed by the Revenue Court. Since the possession of the disputed land was claimed on the basis of the decree passed by the Revenue Court that relief could not be given in the present suit. (12). Coming to the point of possession it was frankly conceded by Mr. Gupta that the possession was being sought under the decree passed by the Revenue Court. Since the possession of the disputed land was claimed on the basis of the decree passed by the Revenue Court that relief could not be given in the present suit. The learned Additional District Judge has not erred in dismissing the plaintiffs suit for possession. (13). No other point was urged before me. (14). Consequently, there is no merit in this appeal, which is hereby dismissed. There is also no substance in the cross objections which are also dismissed. Parties are left to bear their own costs.