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2009 DIGILAW 419 (RAJ)

G. K. TIWARI v. State of Rajasthan

2009-02-09

ROHIT KUMAR SINGH

body2009
Judgment SINGH, M.—This is second appeal under Section 224 of the Rajasthan Tenancy Act, 1955 (in short `the Act') directed against the impugned judgment dated 31.3.2001 of Revenue Appellate Authority Hanumangarh by which he dismissed the first appeal against the judgment dated 25.4.1990 of Sub-Divisional Officer Hanumangarh. 2. Briefly stated, the fact leading to this appeal are that State Government through Tehsildar Hanumangarh filed a suit under Section 175 of the Act against respondent-defendants. During pendency of the suit respondent No. 2 defendant put up an application under Order 7 Rule 11 of the Civil Procedure Code (C.P.C.) for rejection of plaint as barred by the law and on the point of res-judicata. The Sub-Divisional Officer Hanumangarh allowed this application and dismissed the suit vide his judgment dated 25.4.90 against which State Government preferred an appeal before Revenue Appellate Authority Hanumangarh who by his impugned judgment dated 31.3.01 dismissed the appeal. Hence the second appeal. 3. We have heard the learned counsels for both the parties. 4. The learned Additional Govt. Advocate has argued that the disputed land located in village Chak 14 J.D.W. (Hanumangarh) was originally recorded in the khatedari right of Bhoma Ram, the respondent defendant No. 1, who through registered sale deed dated 7.10.1970, sold the land to respondent defendant No. 2 Bhola Singh. Bhoma Ram belongs to scheduled caste whereas Bhola Singh is not a member of scheduled caste. As such the impugned sale of the land of scheduled caste to a person who is not member of scheduled caste is void ab-initio. Hence the suit under Section 175 of the Act was filed for outsting both the vendor and vendee from the disputed land. Bar trial court illegally and erroneously dismissed the suit under Order 7 Rule 11 of the CPC on the ground of res-judicata and limitation. The trial court has referred to certain revenue suit which was already decided in which State Government was not a party to the suit. Besides, the referred suit between the vendor and the vendee, was decided ex-parte in a collusive manner in absence of the State Government; as such there is no question of res-judicata in this case. Besides res-judicata is a mixed question of fact and law and cannot be decided in such a summary manner without going into the evidence. Besides, the referred suit between the vendor and the vendee, was decided ex-parte in a collusive manner in absence of the State Government; as such there is no question of res-judicata in this case. Besides res-judicata is a mixed question of fact and law and cannot be decided in such a summary manner without going into the evidence. On the point of limitation, it was argued that for filing suit under Section 175 of the Act, the limitation on the date of transaction i.e. 7.10.07 was 3 years, then in 1971 this limitation was extended to 12 years and in 1981 through further amendment in law the limitation for filing suit under section 175 of the Act was extended to 30 years. Thus for transaction dated 7.10.1970 the limitation for filing suit under section 175 of the Act became 30 years, but Tehsildar filed case under section 175 of the Act on 19.2.1986 so it is well within limitation. Thus, Sub-Divisional Officer erroneously and illegally held the suit out of limitation. The suit was neither barred by res-judicata nor by limitation; but Sub-Divisional Officer dismissed it under Order 7 Rule 11 of the CPC without understanding the fact and law. The suit is not decided on issues although issues have been framed by the trial Court. If there is objection of res-judicata or limitation by the respondents-defendants the same could have been decided properly by framing necessary issues and leading evidence to the effect; but this has not been done by the trial court as such the order of trial Court is illegal, Revenue Appellate Authority has also erred in not appreciating this legal aspect properly. It was also contended that the plea of conversion to Christianity is to evade the application of law which should not have been allowed to happen. The learned Additional Government Advocate cited 1983 RRD 571 in support of his contention. He further cited 1998 RRD 577, 1982 RRD 163 and AIR 2001 (SC) 638 in support of his contention that res-judicata and limitation are mixed questions of fact and law and should have been decided after framing proper issues and leading evidence. 5. Countering the arguments of the appellant, the learned counsel for the respondents has contended that the appellant State Government has neither given reply to the application under Order 7 Rule 11 of the C.P.C. nor denied the contentions written therein. 5. Countering the arguments of the appellant, the learned counsel for the respondents has contended that the appellant State Government has neither given reply to the application under Order 7 Rule 11 of the C.P.C. nor denied the contentions written therein. A similar case between the parties was also decided and decreed by competent revenue court but the State Government did not prefer any appeal against this decree; as such the State Government is barred by res-judicata. The suit has no cause of action as the matter pertains to individual persons who are vendor and vendee. It was also contended that the suit under section 175 of the Act was barred by limitation, as such there is nothing illegal when the trial Court rejected the plaint under Order 7 Rule 11 of the C.P.C. The learned counsel for the respondent-defendant No. 1 pleaded that Bhoma Ram had become Christian and as such this is not a matter of illegal transfer between the member of scheduled caste and a member of non-scheduled caste. 6. We have given thoughtful consideration to the rival submissions of the parties, carefully perused the impugned judgments of both the lower courts and gone through the record. 7. Perusal of the judgment dated 25.4.1990 of the trial Court shows that he rejected the plaint as barred by law on the ground of limitation, res-judicata and conversion to Christianity. As far as the point of limitation is concerned, alleged transaction through registered sale deed took place on 7.10.1970 when limitation prescribed for filing suit under section 175 of the Act was 3 years, i.e., the case could have been filed by 7.10.1973, but before expiry of this period of limitation the law was amended in the year 1971 and limitation for filing the case under section 175 of the Act was extended upto 12 years. Since the period of limitation got extended before expiry of the earlier prescribed period of limitation, the State Government could have filed the case in 12 years from 7.10.1970 i.e. by 7.10.1982; but before expiry of this period in 1982, the period of limitation was further extended to 30 years with effect from 1981 when the earlier limitation had not expired; meaning thereby that for the transaction that took place on 7.10.1970 the period of limitation got extended to 30 years, i.e., it could have been filed by 7.10.2000; but the State Government filed the case under Section 175 of the Act on 19.2.1986. Thus, it cannot be said that the case filed under section 175 of the Act was barred by limitation. Evidently both the lower courts have erred in holding that the suit under Section 175 of the Act is barred by limitation. It obviously, is not barred by limitation. 8. As far as the point of res-judicata is concerned, this is a mixed question of fact and law. The appellant State Government has contended that an alleged ex-parte collusive decree between the vendor and the vendee was got issued in absence of the State Government who was not made party to the suit decided earlier. We refrain from making any observation in this respect as no issue is framed and no evidence is led in this regard by either parties. Similarly the effect of embracement of Christianity by a member of scheduled caste, and whether it is a ploy to circumvent the law and get around the provisions of Section 42 of the Act which expressly prohibits sale of land from a member of scheduled caste to a person who is not a member of schedule caste, can be ascertained and adjudicated upon only by framing necessary issue and leading evidence thereto. In fact the respondents-defendants could have raised all their observations about res-judicata and conversion to Christianity in their written statement on which necessary issues could have been framed and decided by adducing evidence; but the trial Court has not done so and dismissed the suit on simple application filed under order 7 Rule 11 of the C.P.C. treating the suit as barred by law. Hon'ble Supreme Court in its judgment reported in AIR 2002 (SC) 638 has held that res-judicata is a mixed question of fact and law and can be decided only after framing necessary issue and leading evidence. So trial Court has erred in dismissing the suit under Order 7 Rule 11 of the C.P.C. without framing issues and allowing the parties to lead evidence thereto. Revenue Appellate Authority has also erred in upholding the judgment of trial court; as such the impugned judgments of both the lower courts suffer from infirmity and illegality as discussed above. 9. In view of the aforesaid discussion the appeal is allowed and the judgment dated 31.3.01 of Revenue Appellate Authority Hanumangarh and the judgment dated 25.4.1990 of Sub-Divisional Officer Hanumangarh are set aside and the case is remanded to Sub-Divisional Officer Hanumangarh to frame necessary issues on the point of res-judicata and effect of conversion to Christianity. The respondents are directed to raise all their objections in the written statement and get necessary issues framed. The trial Court would decide the case on merit issue wise after allowing parties to lead evidence and affording them opportunities of being heard. Both the parties are directed to appear before Sub-Divisional Officer Hanumangarh on 20.3.09. Pronounced.