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2011 DIGILAW 1880 (RAJ)

Mahaveer Prasad v. Kishni Devi

2011-09-02

VINEET KOTHARI

body2011
Hon'ble KOTHARI, J.—The present revision petition has been filed by the defendants-petitioners against the order dated 5.5.2003 of the learned trial Court of Civil Judge (Jr. Division) Tibbi, District Hanumangarh in Civil Misc. Case No. 9/2002 (Smt. Kishni vs. Smt. Mohra & Ors.) in a suit filed by the plaintiff-respondent Smt. Kishni for declaration of adoption deed dated 15.12.1960 and Will dated 3.6.1994 as void and cancellation of the same. 2. Brief facts of the case are that the plaintiff (Smt. Kishni), real sister of Smt. Mohra, two daughters of deceased father Sh. Durja Ram and mother Smt. Mamkauri, filed the said suit in the civil court seeking cancellation of adoption deed dated 15.12.1960 purportedly executed by Smt. Mamkauri in favour of Deepa Ram @ Dilip S/o Taju Ram, husband of Smt. Mohra, the sister of the plaintiff-Kishni and also Will dated 3.6.1994 in favour of same beneficiary. The father, Durja Ram died in the year 1957 and after death of father, the plaintiff Smt. Kishni filed a revenue suit in the year 1978 for declaration under Section 88 of the Rajasthan Tenancy Act, 1955 (for short, hereinafter referred to as Act of 1955') claiming her share to the extent of 1/3rd in the agriculture land, which upon death of father, devolved on the family. The said revenue suit filed in the year 1978 is said to have been decreed in favour of plaintiff up to the Board of Revenue. The another revenue suit being Revenue Suit No. 298/2001 (Smt. Kishni vs. Smt. Mohra) was filed in the revenue court on 18.12.2001 in the Court of S.D.O., Sangaria for seeking possession of the said 1/3rd share of the agriculture land, which in total measured about 65.13 Bigha of land. Besides these two revenue suits, the present civil suit being Civil Suit No. 9/2002 appears to have been filed by the plaintiff-Kishni on 1.7.2002 seeking to declare these two documents viz. adoption deed dated 15.12.1960 and Will dated 3.6.1994 in favour of defendant No. 3 Deepa Ram @ Dilip as void and cancel the same. 3. Besides these two revenue suits, the present civil suit being Civil Suit No. 9/2002 appears to have been filed by the plaintiff-Kishni on 1.7.2002 seeking to declare these two documents viz. adoption deed dated 15.12.1960 and Will dated 3.6.1994 in favour of defendant No. 3 Deepa Ram @ Dilip as void and cancel the same. 3. Upon the objections raised by the defendants that the said civil suit was not maintainable in the civil court but in accordance with Section 207 of the Act of 1955, the same could be filed only in the revenue court, the issues No. 6 and 8 were framed by the learned trial court as to jurisdiction and limitation, and by the impugned order, these two issues have been decided in favour of plaintiff and against the defendants. While the issue of limitation has not been decided and it has been held in the impugned order that the same would be decided at the time of final decision of the suit, the Issue No. 6, of jurisdiction, has been decided in favour of plaintiff and against the defendants and being aggrieved by the same, the defendants-petitioners have approached this Court by way of present revision petition. 4. While admitting the this revision petition, further proceedings in Civil Suit No. 9/2002 were stayed by a Coordinate Bench of this Court, which stay order is still continuing. 5. Learned counsel for the petitioners, Mr. J.L. Purohit, Sr. Advocate assisted by Mr. N.R. Budania, relying upon a Division Bench decision of this Court in the case of Jaswant Singh vs. Board of Revenue reported in 1984 RLW 573 submitted that since the plaintiff has treated these documents, adoption deed dated 15.12.1960 and Will dated 3.6.1994 as null & void and has claimed possession her share of the agriculture land, according to Section 207 of the Act of 1955 read with Third Schedule to the said Act, the said civil suit was maintainable in the Civil court but could be filed only in the revenue court; and therefore, the issue No. 6 has wrongly been decided in favour of plaintiff by the learned trial Court and the present revision deserves to be allowed. 6. Per contra, Mr. Hemant Choudhary and Mr. 6. Per contra, Mr. Hemant Choudhary and Mr. Vishal Jangid, learned counsel for the plaintiff-respondent also relied upon the very same judgment in the case of Jaswant Singh (supra), and also another Single Bench decision of this Court in the case of Kherna & Ors. vs. Shri Bhagwan & Ors. reported in 1994(2) RLW 465 and submitted that Issue No. 6 has rightly been decided in favour of plaintiff and the civil court had competence and jurisdiction to decide the suit filed in the present case by the plaintiff-Kishni. He further urged that for the rights and issues to be determined by the revenue courts under Section 207 read with Third Schedule to the Act of 1955, the plaintiff had already approached the revenue court by two revenue suits, one filed in the year 1978 and another suit being Revenue Suit No.298/2001 filed on 18.12.2001. He also informed the Court that while the suit filed in the year 1978 has been decreed in favour of plaintiff up to Board of Revenue and to his knowledge, there is no further challenge to the same from the side of the defendants, and also the appeal filed against the order passed in Suit No. 298/2001 has also been dismissed by the learned Revenue Appellate Authority, Hanumangarh on 19.8.2002 while dismissing the appeal of the defendants being Appeal No. 12/2002 (Deepa Ram @ Dilip and Mahaveer vs. Smt. Kishni & Ors.). 7. He further submitted that main relief claimed in the present civil suit filed by the plaintiff-Smt. Kishni, is for declaring the two documents, namely, adoption deed and Will as void and cancel the same and they were affecting the civil rights of the plaintiff which would be determined upon the evidence led by her and, therefore, the revenue court had no jurisdiction to decide such suits in terms of Third Schedule and, hence, the Issue No. 6 has rightly been decided in favour of plaintiff-respondent. 8. I have heard learned counsels for the parties at length and perused the impugned order and judgments cited at bar. 9. Section 207 of the Rajasthan Tenancy Act of 1955 deals with all suits and application of the nature specified in the Third Schedule shall be heard and determined by a revenue court. 8. I have heard learned counsels for the parties at length and perused the impugned order and judgments cited at bar. 9. Section 207 of the Rajasthan Tenancy Act of 1955 deals with all suits and application of the nature specified in the Third Schedule shall be heard and determined by a revenue court. Sub-section (2) of Section 207 creates a bar on the jurisdiction of civil court and stipulates that no court other than a revenue Court shall take cognizance of any such suit or application or of any suit or application based on a cause of action in respect of which any relief could be obtained by means of any such suit or application. The Explanation further provides that if the cause of action is one in respect of which relief might be granted by the revenue court, it is immaterial that the relief asked for from the civil court is greater than, or additional to, or is not identical with, that which the revenue court could have granted. 10. The Third Schedule with reference to Sections 207, 214, 215 & 217 of the Act of 1955 provides that items No. 5 to 23 of the said Schedule, over which the revenue court shall have exclusive jurisdiction. They are broadly as Section 88, suit for declaration of plaintiffs rights, Section 89 suits for declaration etc., Section 90 suit for declaration of land as khudkasht, Section 91 suit for declaration of land as Khudkasht, Section 91 suit for declaration of any other right, Section 92, suit for injunction, Section 109 suit for declaration, of any other right, Section 92, suit for injunction, Section 109 suit for declaration, commutation, abatement of enhancement of rent. Section 115 suit for fixation of rent etc. up to Section 183 suit for ejectment of trespasser. 11. The suit filed in the present case by the plaintiff-Smt. Kishni for declaring the adoption deed dated 15.12.1960 and Will dated 3.6.1994 as void and cancel the same does not apparently fall in any of items Nos. 5 to 23 of the said Third Schedule to the Act of 1955. Therefore, the question naturally arose as to whether the said suit could be thrown out by the civil court to be tried by the revenue court at the instance and objection of the defendants. The contention raised by the learned counsel for the petitioners Mr. J.L. Purohit, Sr. Therefore, the question naturally arose as to whether the said suit could be thrown out by the civil court to be tried by the revenue court at the instance and objection of the defendants. The contention raised by the learned counsel for the petitioners Mr. J.L. Purohit, Sr. Advocate that since the plaintiff has treated these two documents as void and, therefore, these relief(s) also being incidental could be granted by the revenue courts, since the plaintiff has claimed possession also in the present suit, with respects, does not have much of the substance. It may be pointed out here that the plaintiff had already filed a revenue suit in the year 1978 for declaration of her rights under Section 88 of the Act in the revenue court, which is said to have been decreed in her favour up to Board of Revenue. For possession of her 1/3rd share also, she has filed another suit being Suit No. 298/2001 on 18.12.2001 as noted in para 7 of the impugned order and that is also stated to have been decreed in favour of plaintiff Smt. Kishni up to stage of Revenue Appellate Authority. Thus, the main and substantial relief relating to her tenancy rights in the agriculture land for which Section 207 of the Act of 1955 could be invoked have already been sought by her in two revenue suits filed by her in the competent revenue courts, which have been decreed in her favour. Therefore, it cannot be said that the present suit filed in the civil court claiming the declaration of these two documents, namely, adoption deed dated 15.12.1960 and Will dated 3.6.1994 as void could only an be incidental relief in the revenue suit From a bare perusal of the plaint itself, it is clear that these two relief/s are the main and substantial relief's claimed by the plaintiff in the present civil suit. 12. In the case of Jaswant Singh (supra), in paras 18 to 20 the Apex Court has held as under:- "18. In Lal Singh vs. Tej Singh (13) the suit was of the same nature as was in Sukhlal's case (supra). It was a minor's suit to avoid sale alleged to have been made by the guardian during their minority and it was held that the transaction was voidable at the instance of the minor. In Lal Singh vs. Tej Singh (13) the suit was of the same nature as was in Sukhlal's case (supra). It was a minor's suit to avoid sale alleged to have been made by the guardian during their minority and it was held that the transaction was voidable at the instance of the minor. The learned Judge observed that the sale-deed voidable and it was necessary to get it cancelled before the plaintiff could be entitled to the property disposed of by the same and as the relief of cancellation of sale-deed or a decree could only be granted by a Civil court and not by a Revenue court, the suit, therefore, was held to be triable by a Civil court. We have already referred to above the decision of this Court in Shyam Kumar's case (supra) and Ratanlal's case (supra). In Shyam Kumar's case (supra), the main relief sought for in the suit was cancellation of disputed sale-deeds and unless the sale-deed were cancelled no other relief could be given by the Court to the plaintiff. Thus, the main relief sought for in the suit, namely, cancellation of sale-deeds could not be given by the Revenue courts and the suit was apparently triable by a Civil Court. In Ratanlal's case (supra) also the question in dispute in the suit was the natural source of water which was subject-matter of a civil right of the villagers. As such the aforesaid two cases are clearly distinguishable from the present case. 19. The case in Sangram Singh vs. Rooplal (14) was one like the case in hand. It was held in that case by P.N. Shinghal, J. as he then was, that when the plaintiff claimed the sale to be void ab inito and the substantive relief which was claimed by him was delivery of posse-ssion, the relief of cancellation of the document claimed to be ab initio void was not necessary and the suit was triable by a Revenue court, which was competent to grant the relief of possession. In the case of Badri Lal vs. Moda (15) the dispute between the parties related not to any right inland, but in that case the suit was for perpetual injunction relating to the right to draw water from a well. In the case of Badri Lal vs. Moda (15) the dispute between the parties related not to any right inland, but in that case the suit was for perpetual injunction relating to the right to draw water from a well. It was held in that case that the alleged right was claimed on the basis of easement and the suit was triable by a Civil Court. 20. In a recent decision of this Court in Gurucharan Singh vs. Mst. Gurdayal Kaur (16) the same view was taken by a Bench of this Court which we are inclined to take. In that case, a suit was filed seeking a declaration that the decree passed by the Revenue court was void and ineffective and was based upon the allegation that the decree was fraudulent and against the tenancy rights of the plaintiff. As the plaintiff wanted a declaration to the effect that the decree passed by the Revenue court was void and such declaration could only be given by the Civil Court, the suit was rightly held to be triable by a Civil court. 21. Thus upon a consideration of the several cases of this Court on the point. It clearly emerges that if the suit was filed by the plaintiff for possession treating the deed as wholly void or a nullity, then a prayer for cancellation of the deed was unnecessary and was not required to be made by the plaintiff who could ignore the void document. In such cases there was no unsurmountable difficulty in the way of the plaintiff in seeking relief by way of declaration of tenancy rights and claiming possession before a competent Revenue court. The present case is not one in which the alleged sale-deed was admitted to have been executed by the plaintiff or her predecessor-in-interest or that she sought to avoid the same on the ground that she was made to execute the deed by fraud or misrepresentation. The plaintiff claimed in the suits that sale deeds were not executed by her. In such circumstances, the sale-deeds were alleged to be void and not voidable and the same could be ignored by the plaintiff. 22. We, therefore, agree with the learned Single Judge thought three suits, relating to which these appeals have been filed are exclusively triable by the competent Revenue court. In such circumstances, the sale-deeds were alleged to be void and not voidable and the same could be ignored by the plaintiff. 22. We, therefore, agree with the learned Single Judge thought three suits, relating to which these appeals have been filed are exclusively triable by the competent Revenue court. Consequently, the orders passed by the Board of Revenue for Rajasthan as well as by the learned Single Judge of this Court are affirmed. All the three appeals are, therefore, dismissed. The parties are left to bear their own costs." 13. Similarly, a Coordinate Bench of Single Judge of his Court in the case of Khema & Ors. vs. Shri Bhagwan & Ors. (supra) in para 14 has held as under:- "14. In the present second appeal as I have said earlier, in main relief is cancellation of three registered sale deeds mentioned above, therefore, unless the aforesaid three registered sale deeds are cancelled, no other relief can be granted by courts. The cause of action in the present suit is the execution of the three registered sale deeds by defendants-respondent No. 3 Uda. In fact, it is this cause of action which has forced the plaintiffs to file the present suit. Hence, the relief for cancellation of three registered sale deeds is the main relief which cannot be granted by Revenue courts and other relief sought in the present suit are ancillary reliefs. Such intricate questions of cancellation of sale deeds are to be decided by judicially trained mind of civil courts and cannot be left to be decided by Revenue courts which are obliviously not well acquainted to try such intricate questions of law. Under Specific Relief Act, the civil courts are expected to pass decree directing the sub-registrar (Registration) to score out from the registers the existence of such sale deeds for all times to come in order to adjudicate the matter between the parties finally. Under the Specific Relief Act. Revenue Courts have not been given such powers for cancellation of sale deeds, therefore, both the courts have rightly recorded a finding that the present suit being a suit for cancellation of sale deeds is exclusively triable by civil court and the other reliefs sought by the plaintiff are ancillary reliefs. Under the Specific Relief Act. Revenue Courts have not been given such powers for cancellation of sale deeds, therefore, both the courts have rightly recorded a finding that the present suit being a suit for cancellation of sale deeds is exclusively triable by civil court and the other reliefs sought by the plaintiff are ancillary reliefs. The relief for perpetual injunction and other such reliefs are incidental to the main relief and would follow as a consequence to the finding of the court with regard to cancellation of three sale deeds mentioned above." 14. Thus, where the plaintiff in the present civil suit claiming main and substantive relief for declaring these two documents, namely, adoption deed and Will in favour of defendant No. 3 as null & void and for cancelling the same and incidentally the relief of possession is also claimed in the same suit, therefore, it cannot be said that the said suit is not within the jurisdiction of the civil court under Section 207(2) of the Act of 1955. Had the plaintiff-Smt. Kishni filed one single suit claiming all the reliefs of declaration, partition, possession and cancellation of these documents in one suit, it could possibly be contended by the defendants that cancellation of these two documents is an incidential relief to the main relief of declaration, partition, and possession which could have been taken away the jurisdiction of the civil court in view of bar under Section 207(2) of the Act of 1955. But, it is not the case here and on the contrary it appears from the factual matrix given above, that the plaintiff, intelligently enough, has filed two revenue suits for declaration of her rights and possession, which have already been decreed in her favour but for cancellation of these two documents and declaring the same to be void, namely, adoption deed and Will, she well advisably approached the civil court by way of present Civil Suit No. 9/2002. Therefore, in the considered opinion of this Court, it cannot be said that the plaintiff-Smt. Kishni has not committed any error in filing the civil suit for these reliefs and present civil suit cannot be said to be barred by Section 207(2) of the Act of 1955. 15. Therefore, in the considered opinion of this Court, it cannot be said that the plaintiff-Smt. Kishni has not committed any error in filing the civil suit for these reliefs and present civil suit cannot be said to be barred by Section 207(2) of the Act of 1955. 15. Consequently, the Issue No.6 appears to have been rightly decided by the learned trial Court by the impugned order dated 5.5.2003 in favour of plaintiff-respondent and against the defendants-petitioners. There is no force in the present revision petition of the defendants and the same is accordingly dismissed. The record of the learned trial Court may be sent back forthwith and in view of long lapse of time including the eight years lapsed in this court under the interim order of this Court, the learned trial Court is requested to expedite the trial in the present matter. Costs made easy.