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2010 DIGILAW 1102 (RAJ)

Onkar Singh v. Surendra Singh

2010-06-02

G.K.TIWARI, PRAMIL KUMAR MATHUR

body2010
TIWARI, M.—The above two appeals under Section 225 of the Rajasthan Tenancy Act, 1955 (in short `the Act') are taken together for a common judgment as the they are directed against the same common impugned judgment dated 18.3.2002 of Revenue Appellate Authority Sriganganagar, involving the same parties and common law points. A copy of the judgment may be placed in each of the file separately. 2. Briefly stated, the facts of the case leading to these appeals are that the respondent No. 1 plaintiff filed two suits against the appellants-defendants and respondents No. 2 and 3 for declaration of khatedari rights, division of holding and recovery of possession with regard to the suit lands, under sections 88, 53 and 183 of the Act in the court of Assistant Collector (S.D.O. Srikaranpur (Sriganganagar). During the course of suits appellant-defendants filed applications under Order 7 Rule 11 of the Civil Procedure Code (C.P.C.) for rejection of the plaints, which were allowed by the sub-Divisional Officer vide his judgment dated 20.3.2001 which was challenged in first appeal under Section 223of the Act before Revenue Appellate Authority Sriganganagar who allowed both the appeals and remanded the suits for decision on merits after framing necessary issues and leading evidence by his impugned judgment dated 18.3.02 against which two appeals are preferred by the appellants-defendants under Section 225 of the Act in this court. 3. We have heard the learned counsels of both the parties. 4. The learned counsel for the appellants contended that the respondent-plaintiff Surendra Singh had executed a power of attorney in favour of the appellant-defendant Onkar Singh who sold the disputed land in favour of appellant No. 2 defendant Gursharan Singh through registered sale deeds. The respondent No. 1 plaintiff has sought relief of declaring of the sale deeds as null and void. This relief can only be granted by a civil court and not by a revenue court. The respondent-plaintiff's other relief for declaration of khatedari right, partition and recovery of possession are ancillary to the main relief of declaring the sale deeds null and void. The learned counsel cited 1992(2) RLR 401 in support of his contention. It was further submitted that unless the sale deeds are cancelled, no related ancillary relief can be given by revenue court. The learned counsel cited 1993 RRD 326 to support his contention. The learned counsel cited 1992(2) RLR 401 in support of his contention. It was further submitted that unless the sale deeds are cancelled, no related ancillary relief can be given by revenue court. The learned counsel cited 1993 RRD 326 to support his contention. The learned counsel also disputed jurisdiction of revenue court in such a controversy citing 1988 RRD 312, 1993 RRD 673, 1997 RLW 131 and 1995 RRD 760. It was further pleaded that the remand order of Revenue Appellate Authority is illegal and unjustified when the case can be finally decided under Order 7 Rule 11 of the CPC to avoid protracted litigation and under hardship to the parties. 5. Vehemently countering the contentions of the appellants, the learned counsel for the respondent contended that the main relief sought by the respondent-plaintiff is not about cancellation of the sale deed; but about declaration of khatedari rights, division of holdings and recovery of possession, which can only be granted by a revenue court. At the same time it is also pleaded that the effect of the forged sale deeds which were never executed by the plaintiff, as claimed by the appellants-defendants, should be ignored being void in effect. It is contended that the respondent-plaintiff neither executed any power of attorney for sale of the disputed land nor authorised appellant No. 1 defendants to carry out any sale of the plaintiffs khatedari lands. When the respondent-plaintiff has challenged the veracity of alleged power of attorney and sale deeds, the final decision with regard to these disputed facts can only be made after framing of necessary issues and leading evidence; but the trial Court has not done so and without verifying the facts regarding power of attorney and the sale deeds rejected the plaint under Order 7 Rule 11of the CPC. There are no such statements in the plaints which can become ground for the rejection of the plaints. A plaint cannot be rejected on the basis of any extraneous document or any averments made outside the plaint. When there is dispute pertaining to facts any final judgment should be given after framing issues and leading evidence. The appellants-defendants can raise all their objections in the written statement on the basis of which issues can be framed, evidence led and accordingly final decision can be taken. When there is dispute pertaining to facts any final judgment should be given after framing issues and leading evidence. The appellants-defendants can raise all their objections in the written statement on the basis of which issues can be framed, evidence led and accordingly final decision can be taken. The trial court has illegally held the suit beyond its jurisdiction for the want of cancellation of the sale deeds, whereas for a void document like the given forged sale deeds and the power of attorney, only its effect is to be ignored, as is held in 1988 RRD 478, (H.C.). Jurisdiction is also determined on the basis of the relief sought. The relief sought by the plaintiff-respondent is such which can only be provided by a revenue court. The learned counsel cited 1984 RRD 280, 1989 RRD 538 and 1996 RRD 16 in support of his contention. 6. We have given thoughtful consideration to the rival contentions, perused the impugned judgments of courts below and gone through the material on record. 7. Perusal of the judgment dated 20.3.01 of Sub-Divisional Officer Suratgarh shows that he has allowed the application under Order 7 Rule 11 of the CPC and rejected the plaints mainly on the ground that revenue court lachs jurisdiction to try the suits unless the alleged sale deeds by which the disputed land were sold are set aside. Revenue Appellate Authority has set aside the judgment dated 20.3.01 of Sub-Divisional Officer mainly on the ground that the suits cannot be dismissed under Order 7 Rule 11 of the CPC. without framing issues and taking decision thereon based on merits, particularly when the alleged sale deeds and the power of attorney both are challenged as forged and, therefore, void in effect. Now we have to examine and decide as to which of the two impugned judgments of the courts below, is just and legally correct. 8. Perusal of the plaints of the respondent-plaintiff shows that he has sought relief of declaration of khatedari rights under section 88 of the Act, division of holdings along with recovery of possession under Section 53 and 183 of the Act in respect of the disputed lands which admittedly are recorded as agriculture lands in the revenue records. 8. Perusal of the plaints of the respondent-plaintiff shows that he has sought relief of declaration of khatedari rights under section 88 of the Act, division of holdings along with recovery of possession under Section 53 and 183 of the Act in respect of the disputed lands which admittedly are recorded as agriculture lands in the revenue records. The main plea of the appellant-defendant is that the lands in dispute are sold by the plaintiff-respondent to appellant No. 2 through a power of attorney holder - Onkar Singh, the appellant No. 1 defendant; but the respondent-plaintiff has strongly denied executing any such power of attorney in favour of the appellant Onkar Singh. The respondent-plaintiff has further disputed that when the alleged sale deeds were said to be executed, the appellant-defendant Onkar Singh was not holding any valid power of attorney- the plaintiff-respondent Surendra Singh being located in the city of Calgary (Canada) and the appellant-defendant Onkar Singh in Padampur (Sriganganagar). The respondent-plaintiff has emphatically pleaded that the purported document of power of attorney and sale deeds are forged and fabricated against which complaint was lodged with the Registration authorities also. Perusal of the case filed of the trial Court reveals that only unattested, uncertified and unproved alleged documents of power of attorney and sale deeds are annexed on the basis of which no proper inference can be drawn. Evidently, such keenly contested and disputed point of facts can be ascertained and correctly decided only after framing of appropriate issues and leading of evidence thereto. 9. Relying upon 1988 RRD 610, 1992(2) RLR 401, 1993 RRD 326, 1988 RRD 312, 1987(1) RLR 51and 1993 RRD 673 it has been pleaded by the learned counsel for the appellants that unless registered sale deeds are cancelled or set aside, the suits are not triable by the revenue court for the want of jurisdiction. With all humility and due respect to all these citations, it is submitted that none of these citations pertain to Order 7 Rule 11 of the CPC wherein plaints are rejected and suits are summarily dismissed without any trial. All these citations pertain to suits and proceedings where trial was fully carried out in accordance with the procedure of law after framing of issues and leading evidence. All these citations pertain to suits and proceedings where trial was fully carried out in accordance with the procedure of law after framing of issues and leading evidence. Besides it, it has been held by Hon'ble Rajasthan High Court in 1998 RRD 478 that an application under Order 7 Rule 11 of the C.P.C. cannot be entertained and allowed where validity and sanctity of a particular document is under challenge. It is further held by Hon'ble Rajasthan High Court that void transaction and void document can be ignored and it is not necessary for the Court to declare it a nullity. Similar views were also taken by Hon'ble Rajasthan High Court in 1984 RRD 280 and Board of Revenue (DB) in 1989 RRD 538. In the cases under consideration the plaintiff-respondent has challenged the power of attorney and sale deeds as forged and fabricated and requested the revenue court to ignore its effect. It would not be out of context to mention here that determination of jurisdiction is a mixed question of facts and law and cannot be decided and adjudicated upon under Order 7 Rule 11 of the CPC without framing necessary issues and leading evidence thereon. We are fortified in holding this view by pronouncement of Hon'ble Rajasthan High Court as reported in 1999(1) RLW (Raj.) 193. 10. Further, with a view to examining the matter under consideration whether it falls within the purview of Order 7 Rule 11 of the CPC or not, we would like to reproduce and discuss the relevant provisions of Order 7 Rule 11 of the C.P.C. or not, we would like to reproduce and discuss the relevant provisions of Order 7 Rule 11 CPC as under:- "11. Rejection of plaint-The plaint shall be rejected in the following cases:- (a) Where it does not disclose a cause of action; (b) Where the relief claimed is under-valued, and the plaintiff, on being required by the court to so correct the valuation within a time to be fixed by the court, fails to do so; (c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp-paper within a time to be fixed by the court, failed to do so; (d) Where the suit appears from the statement in the plaint to be barred by any law; ........" Apparently, in the cases under consideration the trial Court seems to have rejected the plaint on the basis of Order 7 Rule 11 (d) of the CPC which states that where the suit appears from the statement in the plaint to be barred by any law, it can be rejected. We have gone through the plaints enclosed in the case files of trial court. The plaints, mainly, contains statements about seeking relief of declaration of khatedari rights, division of holdings and recovery of possession with a request to ignore and overlook the allegedly forged and void documents purported to be power of attorney and sale deeds. Thus, there are no such statements in the plaints which make the suit barred by any law. Obviously, there is nothing in the plaints by which it can be rejected straightaway under Order 7 Rule 11 of the C.P.C. 11. It would not be out place to mention here that where facts relating to tenancy rights in agriculture lands, recovery of possession and allegations about forged and fabricated documents pertaining to the alleged power of attorney and sale deeds are involved, the entire matter in controversy should be carefully and legally decided after framing of issues and leading evidence. The voice of plaintiff-respondent praying for justice in respect of his khatedari rights in the lands in controversy cannot be stymied without providing an opportunity for a fair trial for the want of which it would simply lead to miscarriage of justice. The appellants-defendants can raise all their objections in a written statement based on which proper issues can be framed, evidence led and appropriate judgment can be made. The appellants-defendants can raise all their objections in a written statement based on which proper issues can be framed, evidence led and appropriate judgment can be made. When facts are keenly disputed and contested with allegation of forging and fabrication of documents assailed as nonest, a suit cannot be abruptly closed under Order 7 Rule 11 of the C.P.C. 12. In view of the foregoing discussion, we do not find any infirmity in the impugned judgment dated 18.3.2002 of Revenue Appellate Authority Sriganganagar who has set aside the order dated 20.3.01 of Sub-Divisional Officer Suratgarh rejecting the plaints under Order 7 Rule 11 of the CPC, and rightly remanded the suits to Sub-Divisional Officer Suratgarh for deciding it on merits after framing of necessary issues and leading evidence thereon. 13. Resultantly, both the appeals stand dismissed. Pronounced.