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Rajasthan High Court · body

2009 DIGILAW 1863 (RAJ)

Asharf v. Aklo

2009-08-20

G.K.TIWARI

body2009
TIWARI, M.—This is a revision petition under Section 230 of the Rajasthan Tenancy Act, 1955 (in short `the Act') against the impugned order dated 28.2.2008 of Assistant Collector (Sub-Divisional Officer) Shiv District Barmer by which he rejected the application under Order 7 Rule 11 of the Civil Procedure Code (CPC) filed before him to reject the plaint. 2. Briefly stated, the facts of the case are that the non-petitioners No.1 & 2 plaintiffs have filed a suit under Sections 88, 89, 91, 92 (ka), 188 and 209 of the Act against the petitioner-defendant and others. During pendency of the suit the petitioner-defendant filed an application under Order 7 Rule 11 of the CPC which was rejected by the Assistant Collector, Shiv by the impugned order against which the instant revision is preferred in the Board of Revenue. 3. I have heard the learned counsels of both the parties. 4. The learned counsel for the petitioner has contended that the disputed land was in the khatedari right of the deceased Ali Khan. After the death of Ali Khan the petitioner took over possession of the disputed land as a holder of the Will of the deceased. After death of Ali Khan Mutation No. 376 was attested on 11.6.1960 in favour of the petitioner; ever since the petitioner has been in possession of the land as a khatedar tenant. The petitioner has sold the land by way of registered sale deed to Ved Mal who has further sold the land to Mahmad, Iliyas, Alabachaya. Since non-petitioners-plaintiffs are not in possession of the land they are not entitled to khatedari rights. As the petitioner and his transferees have been in possession of the land since 11.6.1960 when mutation was attested in his favour, the non-petitioners-plaintiffs are barred by law to bring any suit under Section 88 or 188 of the Act due to lack of possession on the land. It is also contended that the non-petitioners-plaintiffs have lost their right to recover possession of the land due to bar of limitation as such their tenancy rights are extinguished under Section 63(4) of the Act. In view of all these facts the non-petitioners-plaintiffs were barred by law to bring a suit under Sections 88, 89, 91, 92(ka), 188 and 209 of the Act. In view of all these facts the non-petitioners-plaintiffs were barred by law to bring a suit under Sections 88, 89, 91, 92(ka), 188 and 209 of the Act. So the application filed under Order 7 Rule 11 of the CPC should have been accepted but Trial Court has illegally dismissed the same erroneously. The learned counsel pressed for quashing of the impugned order of Assistant Collector and for allowing the application. 5. Opposing the contentions of the petitioner, the learned counsel for the non-petitioners pleaded that he non-petitioners-plaintiffs are daughter and daughter-in-law of the deceased khatedar Ali Khan and are, therefore, entitled to succeed to the khatedari land of their deceased father. As such no illegality has been committed by the Trial Court in passing the impugned order. All the pleas and objections raised by the petitioner are subject to evidence. The disputed land is an agricultural land which comes within the purview of the Revenue Court of Assistant Collector, Shiv; so Assistant Collector is not barred by law from hearing the suit filed before him. 6. I have given thoughtful consideration to the rival contentions perused the impugned order and gone through the case file. 7. The main thrust of the arguments of the learned counsel for the petitioner is that the non-petitioners-plaintiffs are not in possession of the land ever since the death of original khatedar Ali Khan, so they are not entitled to the suit under Sections 88 and 188 of the Act. In respect of this plea it is clarified that there is no time limit for filing of a declaratory suit under Section 88 of the Act. As far as the point of limitation with regard to filing of a suit under Section 188 of the Act is concerned, the period given under Third Schedule to the Act is three years from the cause of action. One of the cause of actions given at para 8 of the plaint, interalia, is one month prior to the filing of the suit. But all these indicated days are subject to proof by adducing appropriate evidence. Another plea of the petitioner is that the non-petitioners-plaintiffs have lost their right to recover of possession due to time bar; this plea and averment is again subject to evidence. But all these indicated days are subject to proof by adducing appropriate evidence. Another plea of the petitioner is that the non-petitioners-plaintiffs have lost their right to recover of possession due to time bar; this plea and averment is again subject to evidence. Thus, both the above cited pleas of the petitioner are mixed question of fact and law and as such subject to marshalling of evidence. Yet another plea of the petitioner that the non-petitioners-plaintiffs did not challenge the mutation order dated 11.6.1960 by which the khatedari land of their father was mutated in favour of the petitioner, is also untenable in view of the fact that the non-petitioners-plaintiffs as daughter and daughter-in-law of the deceased Ali Khan are entitled to file the suit for declaration of their rights and interest in the khatedari land of their deceased father notwithstanding the fact that the said mutation order dated 11.6.1960 remains unchallenged. 8. As far as the contentions of the petitioner that the non-petitioners-plaintiffs are barred under Section 63(4) of the Act is concerned, Section 63 of the Act applies only to a tenant who in the circumstances as enumerated under Section 63(1)(i) to (ix) has his tenancy rights extinguished. Thus, Section 63 of the Act presupposes that a person has to be a tenant first and foremost and there after his tenancy rights get extinguished in the specified circumstances. But so far the non-petitioners-plaintiffs are not tenants and as such Section 63 of the Act does not apply in their context. 9. It is also significant to observe that the petitioner as per his own assertion has transferred the land to Ved Mal who has further transferred the land to others. Thus a series of transfers of the disputed land has taken place. What is the effect of all these transfers on the suit land, can be decided only after framing of the proper issues and leading of evidence therefor. 10. In view of the aforesaid discussion neither the suit under consideration can be dismissed under Order 7 Rule 11 of the CPC nor the plaint filed can be rejected as being barred by law. Thus, the Trial Court has not committed any jurisdictional error or any illegality nor acted with material irregularity in passing the impugned order. 10. Resultantly the petition fails and it is, therefore, dismissed. Pronounced.