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2002 DIGILAW 1568 (RAJ)

Govind Gupta v. Thakur Mohan Singh Kanota

2002-09-09

S.C.SINGHAL, SUDHIR VERMA

body2002
VERMA, Member – Both these appeals have been filed by the appellant under Section 225 of the Rajasthan Tenancy Act,1955 (In short ``the Act) against the judgment of Revenue Appellate Authority, Jaipur dated 9.8.96. Since a common question of facts and law is involved in both these appeals; therefore, both the appeals are being decided by a common judgment. (2). Briefly stated the facts of the case are that the respondent-plaintiff, Thakur Mohan Singh filed a suit under Section 183 of the Act in the court of S.D.O., Jaipur against the appellant-defendant, which was decreed by the trial court on 14.9.88. In compliance of the decree of the trial court the appellant-defendant was ejected from the disputed land on 14.12.88. The appellant-defendant filed an appeal against the judgment and decree of the trial court in the court of Revenue Appellate Authority, Jaipur. The learned Revenue Appellate Authority, Jaipur vide its judgment and decree dated 29.6.89 accepted the appeal and set-aside the judgment and decree of S.D.O., Jaipur dated 14.9.88 and the case was remanded to the trial court for denovo trial. Aggrieved by this, an appeal was filed before the Board of Revenue, which too was rejected on 14.12.90. Thereafter an application under Section 144 readwith Section 151 CPC was filed by appellant-defendant in the trial court, which was accepted on 30.11.92 by the trial court. Appellant-defendant had also filed an application under Order 7 Rule 11 CPC before the trial court for rejection of the plaint on the ground that the plaint does not disclose a cause of action. After hearing both the parties, the trial court vide its order dated 30.11.92 accepted the application. Aggrieved by these orders, the respondent-plaintiff filed two separate appeals in the court of Revenue Appellate Authority, Jaipur under Section 223 of the Act, which was registered as Revenue Appeal No. 21/93 and 22/93 respectively. The learned Revenue Appellate Authority vide its impugned order accepted the appeal No. 21/93 and set aside the order of S.D.O. dated 30.11.92, by which the application for restitution has been accepted. The Revenue Appellate Authority vide its impugned order partly accepted the appeal No. 22/93, setting aside the order of S.D.O. dated 30.11.92 and remanded the case for trial to the trial court. Aggrieved by these two orders of the Revenue Appellate Authority, the appellant-defendant has filed these two separate appeals in the Board of Revenue. (3). The Revenue Appellate Authority vide its impugned order partly accepted the appeal No. 22/93, setting aside the order of S.D.O. dated 30.11.92 and remanded the case for trial to the trial court. Aggrieved by these two orders of the Revenue Appellate Authority, the appellant-defendant has filed these two separate appeals in the Board of Revenue. (3). It is pertinent to note that the appellant-defendant had filed revisions under Section 230 of the Act against the orders of Revenue Appellate Authority, but on his request the learned Single Bench of the Board, vide its order dated 24.4.97, treated these revision petitions as Appeals, hence both these appeals are being heard by the Division Bench of this Board. (4). We have heard the learned counsel of both the parties and perused the impugned order and also have gone through the record. (5). The Appeal No. 5/97 has been filed by the appellant- defendant against the judgment of Revenue Appellate Authority dated 9.8.96, by which he has accepted the appeal and rejected the application for restitution under Section 144 of CPC. It is not disputed that the trial court decreed the suit of respondent- plaintiff on 14.9.88 and passed the ejectment decreed under Section 183 of the Act against the appellant-defendant. It is also not disputed that in compliance of the decree the appellant- defendant was ejected from the disputed land and possession was restored to the respondent-plaintiff. But on appeal to the Revenue Appellate Authority by the appellant-defendant the judgment and decree of the trial court dated 14.9.88 was set- aside and case was remanded for denovo trial to the trial court. It is also not disputed that an appeal has also been filed in the Board of Revenue, which too was dismissed on 14.12.90 and the judgment of the learned Revenue Appellate Authority dated 29.6.89 was upheld. The appellant-defendant thereafter filed an application for restitution of possession under Section 144 of CPC in the trial court which was accepted, but the Revenue Appellate Authority vide its impugned judgment set-aside the order of S.D.O. and rejected the application filed by the appellant-defendant. Under Section 144 of CPC, the principle of doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. Under Section 144 of CPC, the principle of doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. This obligation arises automatically on the right to restitution of all that has been done in the erroneous decree and the court in making restitution is bound to restore the parties, so far as they can be restored to the same position they were in at the time when the court by its erroneous action has displaced them from. Hence, it is duty of the court under Section 144 of CPC to place parties in the position, which they would have occupied, but for such decree or such part thereof as has been varied or reversed. Therefore, under Section 144 of CPC it is the duty of the court to place parties in the position which they would have occupied as if no decree has been passed against the appellant-defendant. In this connection reference to Vinayak Sen vs. Ramesh Chandra (1), may be made, in which exparte decree was passed and in execution the property of judgment debtor had been purchased by decree holder, but decree set-aside in appeal and case remanded for fresh disposal. The court held that the judgment debtor is entitled to restitution even though ultimately after fresh decree is passed in favour of decree holder. In the present case also the decree of the trial court has been reversed by the appellate court. Therefore, the benefit, which has been taken by the respondent- plaintiff of the erroneous decree, is entitled to make restitution to the party for what he has lost. The doctrine of restitution under Section 144 CPC is available only where the decree of the lower court is varied or reversed and nowhere the decree remains valid and unaltered. The Larger Bench of the Board of Revenue in Yashwant Singh vs. State of Rajasthan (2), has held that under Section 144 of CPC the duty of the court in awarding restitution is not discretion but it is imperative. The learned Revenue Appellate Authority while accepting the appeal has found that the trespasser has got no right for restitution. The Larger Bench of the Board of Revenue in Yashwant Singh vs. State of Rajasthan (2), has held that under Section 144 of CPC the duty of the court in awarding restitution is not discretion but it is imperative. The learned Revenue Appellate Authority while accepting the appeal has found that the trespasser has got no right for restitution. The learned first appellate court had discussed the merits of the case, which does not warrant under the provisions of Section 144 of CPC. The appellant-defendant is a trespasser or not, it is the matter of merit of the case which cannot be decided at this stage. The learned lower court has not tried to understand the doctrine of restitution as enunciated in section 144 of CPC. He has erred in not complying the mandatory provisions of law. Therefore, the judgment passed by the learned lower court cannot be upheld. (6). Appeal No. 6/97 has been filed against the judgment of Revenue Appellate Authority by which he has partly accepted the appeal and set-aside the judgment and decree of the trial court dated 30.11.92 and the case has been remanded for denovo trial to the trial court. This appeal has been arisen on an application under Order 7 Rule 11 CPC filed by the appellant- defendant. In this application he has alleged that the plaint filed by the respondent-plaintiff be rejected as it does not disclose a cause of action. This application was accepted by the trial court on the ground that no khasra number has been mentioned and nowhere it has been mentioned in the plaint that the disputed land is agricultural land and the revenue court has jurisdiction to entertain the suit or not. On an appeal the learned lower court has come to the conclusion that in para-10 of the plaint the cause of action has been disclosed by the respondent-plaintiff. (7). Learned counsel of the appellant Mr. Sogani has argued that the plaint filed by the respondent-plaintiff neither discloses that the suit pertains to the agriculture land nor it has been mentioned that the trial court has jurisdiction to entertain the suit. He has also argued that no cause of action has been disclosed in the plaint. Therefore, the learned lower court has acted illegally while passing the impugned order. The learned counsel of the respondent Mr. He has also argued that no cause of action has been disclosed in the plaint. Therefore, the learned lower court has acted illegally while passing the impugned order. The learned counsel of the respondent Mr. Pareek has supported the impugned order and has argued that in para-10 of the plaint cause of action has been disclosed and in para-11 the jurisdiction of the court has been alleged. (8). We have considered the rival contentions of the parties. After going through the plaint produced before the trial court it is clear that in para-10 of the plaint cause of action has been pleaded. Therefore, the argument of the learned counsel of the appellant has got no force that no cause of action has been pleaded in the plaint. So far as non-mentioning of agriculture land in the plaint and the jurisdiction of the court are concerned, it has been mentioned in the plaint that the disputed land is `Bagh having trees planted thereon. Hence, it may be called as grove land as defined in Section 5(15) of the Act. Whether the trial court has got jurisdiction to try the suit or not is a matter, which may be agitated by the appellant- defendant in his written statement. It is not disputed that the appellant-defendant has not yet filed reply to the suit. If the appellant-defendant has got any objection regarding jurisdiction, limitation etc. he is free to agitate it in his reply and the trial court after framing necessary issues, these objections can be decided. In this connection reference may be made to Mohan Lal vs. Thakur Balaji Dungalewale (3), in which it has been held that application questioning the maintainability of suit or rejection of plaint for having been filed after expiry of limitation could be questioned after the reply was filed by the defendant and issue on this could be framed, which could be decided as per the provisions of law. The learned lower court after going through the various rulings and provisions of Order 7 Rule 11 of CPC came to the conclusion that the trial court has accepted the application of the appellant-defendant under Order 7 Rule 11 CPC without any basis and has accepted the appeal filed by the respondent-plaintiff. We find no illegality in the impugned judgment passed by the learned lower court. Therefore, appeal filed by the appellant-defendant deserves to be dismissed. (9). We find no illegality in the impugned judgment passed by the learned lower court. Therefore, appeal filed by the appellant-defendant deserves to be dismissed. (9). In the result appeal No. 5/97 is accepted and the judgment of Revenue Appellate Authority, Jaipur dated 9.8.96 is set aside. Appeal No. 6/97 filed by the appellant is hereby dismissed. Pronounced in the open court.