Research › Search › Judgment

Rajasthan High Court · body

2003 DIGILAW 51 (RAJ)

Ramlal v. Kalyan

2003-01-13

S.C.SINGHAL, SUDHIR VERMA

body2003
SINGHAL, Member – Appellant-plaintiffs have filed his appeal under Section 224 of the Rajasthan Tenancy Act, 1955 (in short ``the Act) against the judgment and decree of Settlement Officer-cum-Revenue Appellate Authority, Tonk dated 9.7.97, by which the appeal filed by respondent-defendant No.1 Kalyan has been accepted. (2). Briefly stated, the facts of the case are that the appellant-plaintiffs showing themselves to be minors filed a suit in the court of Asstt. Collector, Malpura through their guardian Gopal under Sections 88 & 188 of the Act stating that Araji Khasra No. 1682/7 area 15 bighas situated at Village Mundiya Kalan Tehsil Toda Raisingh is their khatedari land and they are in cultivatory possession of it. The disputed land belonged to their father Mangla and after the death of their father mutation entered in their names and in the name of Mst. Barji, respondent- defendant No.3, which is ex-facie wrong as Mst. Barji has got no relation with the appellants-plaintiffs. It has been further averred in the plaint that respondent-defendant No.3 Mst. Barji sold the disputed land through registered sale deed (Exhibit-1) to respondents-defendants No.1 & 2, i.e., Kalyan and Ram Lal respectively for Rs. 13,500/- on 9.2.83 disclosing herself to be the ground further of the appellant-plaintiffs. The appellants- plaintiffs have prayed that they be declared khatedars of the disputed land and the sale deed (Exhibit-1) be declared inoperative and ineffective and for issuing permanent injunction against the respondents defendants. (3). The respondents-defendants No. 1 & 2 filed reply and stated that the disputed land belonged to Sugna and after the death of Sugna the mutation of the disputed land entered in the name of Mst. Barji Wd/o Sugna and Mangla, father of the appellant-plaintiffs, by way of succession. It has been further stated that after the death of Mangla the mutation accepted in the name of appellants and Mst. Barji. Mst. Barji has sold the disputed land to the respondents No.1 & 2 keeping in view the necessity of the family. (4). In the trial court the summons were not duly served on respondent-defendant No.3, it is pertinent to mention here that the appellants-plaintiffs impleaded Barji as defendant showing widow of Badri and not Sugna and the summons had also been sent at the address of Mst. Barji Wd/o Badri by the trial court. (4). In the trial court the summons were not duly served on respondent-defendant No.3, it is pertinent to mention here that the appellants-plaintiffs impleaded Barji as defendant showing widow of Badri and not Sugna and the summons had also been sent at the address of Mst. Barji Wd/o Badri by the trial court. The trial Court framed as many as six issues out of the pleadings of the parties and after recording evidence the suit filed by the appellants-plaintiffs decreed to the extent of half share vide its judgment dated 13.1.92. Aggrieved by this, the respondents-defendants filed an appeal before the learned lower appellate court which has been decided as aforesaid. Now this second appeal has been filed. (5). We have heard the learned counsel of the both the parties and perused the record and have also gone through the impugned judgment. (6). The learned counsel of the appellants has argued that Mst. Barji has got no relation whatsoever to the appellants and wrongly got mutated her name in the disputed land along with the appellant-plaintiffs and had executed a sale deed in favour of the respondents-defendants for which she was not entitled. It has been contended by the learned counsel of the appellants that during the minority of the appellants-plaintiffs no sale deed could be made without the permission of the District Judge, therefore, the sale deed is ex-facie illegal but the lower appellate court has erred in allowing the appeal filed by the respondents-defendants. It has also been contended that the trial court has rightly decreed the suit of the appellants-plaintiffs to the tune of half share belonging to the appellant-plaintiffs but the lower appellate court has committed an error in allowing the appeal of the respondents-defendants. On the contrary learned counsel of the respondents while supporting the judgment of the learned lower appellate court has argued that the sale made by Mst. Barji Wd/o Sugna is not void but voidable at the option of the minor under Section 8(3) of Hindu Minority and Guardianship Act. He has contended that in the present case the disputed land does not belong exclusively to the minors, therefore, there is no necessity of obtaining permission of District Judge. He has also argued that the trial court did not pass judgment issuewise which is not in accordance with Order 20 Rule 5 of CPC. He has contended that in the present case the disputed land does not belong exclusively to the minors, therefore, there is no necessity of obtaining permission of District Judge. He has also argued that the trial court did not pass judgment issuewise which is not in accordance with Order 20 Rule 5 of CPC. He has further contended that the sale deed can only be declared void by the Civil Court and not by the revenue court. Hence the trial court has exceeded its jurisdiction in declaring the sale deed as inoperative and ineffective. He has further contended that the appellants-plaintiffs have not come with clean hands, as they did not implead Mst. Barji Wd/o Sugna as respondent-defendant. He has cited Shri Narain Bal vs. Shridhar Sutar (1), Motipuri vs. Modgiri (2), Devi Bai vs. Narendra Kumar (3), Smt. Rukmani vs. Goriya (4), Arulappan vs. Smt. Ahilya Naik (5). (7). We have considered the rival contentions of both the parties. (8). It is not disputed that the sale deed (Exhibit-1) has been executed by Mst. Barji Wd/o Sugna in favour of respondents- defendants Kalyan and Ram Lal showing herself to be the grand mother of appellants-plaintiffs as both were minors at that time. After perusal of copy of Jamabandi Svt. 2038-41 (Exhibit-2) it comes out that before the death of Mangla, father of the appellants-plaintiffs, the disputed land was entered in the khatedari of Mst. Barji Wd/o Sugna and Mangla S/o Sugna equally. After the death of Mangla the mutation No. 561 has been accepted and the name of appellants-plaintiffs have been shown in place of Mangla. Therefore, it is abundantly clear that Mst. Barji was the widow of Sugna, the father of the present appellant-plaintiffs. The appellants-plaintiffs have not impleaded Mst. Barji Wd/o Sugna as respondent-defendant No.3 instead of it they have impleaded Barji Wd/o Badri as respondent-defendant which shows the conduct of the appellant-plaintiffs. Unless and until Mst. Barji Wd/o Sugna is impleaded as respondent-defendant no effective decree/order can be passed in favour of the appellants- plaintiffs. No doubt the land in dispute has been sold by Mst. Barji Wd/o Sugna to the respondents-defendants No.1 & 2 by dint of registered sale deed (Exhibit-1) on 9.2.93. Now the question arises as to whether while executing sale deed by Mst. No doubt the land in dispute has been sold by Mst. Barji Wd/o Sugna to the respondents-defendants No.1 & 2 by dint of registered sale deed (Exhibit-1) on 9.2.93. Now the question arises as to whether while executing sale deed by Mst. Barji Wd/o Sugna the permission of District Judge for transfer of property was necessary as the property belonged to the minors. It has been held in 1990 RRD 528 that under Section 8 of the Hindu Minority & Guardianship Act, the property of minor cannot be transferred by his natural guardian without obtaining permission of District Judge but such permission is required only for the transfer of property which belongs exclusively to the minor if the minor has only an undivided share in the property the permission of District Judge is not required. Even if it is assumed for the sale of the arguments that such permission was required, the sale without obtaining the permission is not void but voidable at the option of the minor under Section 8(3) of the Hindu Minor and Guardianship Act. This view has been fortified in AIR 1996 SC 2371 . After applying the principle enunciated in the said rulings it comes out that in the case in hand, the disputed property belonged to the appellants-plaintiffs minors as well as Mast. Barji Wd/o Sugna and these minors had only an undivided share in the property, therefore, the permission of the District Judge is not required for the transfer of property. Even if it is assumed for the sale of arguments that permission was required, then the sale without obtaining permission is not void but voidable at the option of the minors. The appellants plaintiffs, therefore, should have filed suits for cancellation of the sale deed. In the plaint the appellants-plaintiffs have referred the sale in para-5 of the plaint and has drafted the plaint in such a way as if the sale made by Mst. Barji Wd/o Sugna to respondents- defendants was void and could be ignored by them. (9). We find force in the argument advanced by the learned counsel of the respondents that the trial court did not decide any issue and judgment of the trial court is not in accordance with Order 20 Rule 5 of CPC. Barji Wd/o Sugna to respondents- defendants was void and could be ignored by them. (9). We find force in the argument advanced by the learned counsel of the respondents that the trial court did not decide any issue and judgment of the trial court is not in accordance with Order 20 Rule 5 of CPC. No doubt the trial court has framed as many as six issues which ought to have been decided issuewise in the judgment as per Order 20 Rule 5 of CPC but the judgment has not been pronounced on each of the six issues. Therefore, the judgment passed by the trial court is a nullity, as held in 1998 RRD 44. (10). The name of Mst. Barji respondent No.3 has been deleted on 2.8.2002 on an application filed by the appellants. Mst. Barji was the necessary party and on the request of the appellants the deletion of name of Mst. Barji from the array of respondents no effective order/decree can be passed in her absence. Except this, the appellants-plaintiffs have from very inception impleaded Mst. Barji Wd/o Badri as defendant and not Mst. Barji Wd/o Sugna as defendant. It shows that they have willfully avoided Mst. Barji Wd/o Sugna to implead as defendant despite this fact that the sale deed has been executed by Mst. Barji Wd/o Sugna showing herself to be the grand mother of the appellants-plaintiffs. It is the duty of the parties to come with clean hands before the court. If any party comes with false allegations, he is not entitled to relief since he has not come with clean hands as held in 2001 WLC (SC) Civil Page 693. (11). As discussed above, it is clear that the sale made by Mst. Barji Wd/o Sugna in favour of the respondents-defendants could be said to be voidable but not void at the option of the minor, therefore, such suits are not triable by revenue courts. As per section 207 of the Act, jurisdiction to set aside the sale deed vests in Civil Court and not in revenue court, as held in RBJ (8) 2001 Page 326. (12). In the result, the appeal is hereby dismissed and the judgment and decree passed by learned Settlement Officer-cum- Revenue Appellate Authority, Tonk dated 9.7.97 is upheld. Pronounced in the open court.