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2011 DIGILAW 2799 (RAJ)

Rukmani v. Bhola

2011-12-20

PRASHANT KUMAR AGARWAL

body2011
Hon'ble AGARWAL, J.—The plaintiff-appellant has preferred this Civil Misc. Appeal against the order dated 9.9.1993 passed by Civil Judge, Sikar in Regular Civil Suit No.42/93 (93/87) whereby the plaint was returned for presenting it in a competent Court by the reason that it was found that the Civil Court has no jurisdiction to entertain the suit filed by the plaintiff-appellant. 2. The brief relevant facts for the disposal of this Civil Misc. Appeal are that the appellant filed a suit on 10.8.85 for cancellation of the registered sale deed dated 4.7.85 with the averment that the agriculture land, regarding which the above sale deed has been executed by the respondent-defendant-Bhola in favour of remaining defendants, being ancestral land, the deceased-husband of the appellant had ½ share whereas his father defendant-respondent-Bhola has remaining ½ share and after the death of her husband, the appellant has ½ share in it and the defendant-respondent-Bhola was not entitled to sale whole of the land in dispute. It was also averred in the plaint that the sale deed dated 4.7.85 is in-operative and in-effective against the rights of the plaintiff-appellant and, therefore, it is liable to be cancelled by the Court below. The defendant-respondents jointly filed written statement and it was averred by them that the land in dispute is not an ancestral land and in the life time of defendant-Shri Bhola his deceased son Shri Jeevan Ram has no right in it and, therefore, the plaintiff also has no right in it and the defendant-Shri Bhola has an absolute right to sale the disputed land. A specific objection regarding jurisdiction of the Civil Court was also taken to the effect that the suit is barred by Section 207 of the Rajasthan Tenancy Act (hereinafter to be referred as 'the Act”) as infact the relief claimed by the plaintiff-appellant is regarding declaration of her khatedari rights in the disputed land and such relief can be obtained only through a revenue suit filed in a competent revenue court under the provisions of the Act. It was also averred in the written statement that on the same facts, the plaintiff has already filed a revenue suit in the Court of Sub-Divisional Officer, Fatehpur (District Sikar). On the basis of the pleadings, necessary issues were framed by the Court below and issue No.4 was to the effect that whether that Court has jurisdiction to entertain the suit. On the basis of the pleadings, necessary issues were framed by the Court below and issue No.4 was to the effect that whether that Court has jurisdiction to entertain the suit. Both the parties adduced evidence and the learned Court below decided issue No.4 regarding jurisdiction as a preliminary issue and after a thoughtful consideration it came to a conclusion that looking to the facts of case and the relief claimed by the plaintiff, infact, the suit is for declaration of khatedari rights in the land in dispute and such relief can be given only by a competent revenue Court under the provisions of the Act. With this finding, the plaint was returned to the plaintiff-appellant for presenting it in a competent revenue court. Feeling aggrieved, the plaintiff is before this Court by way of this Civil Misc.Appeal. 3. Assailing the impugned order, the learned counsel for the appellant submitted that it is a well settled legal position that jurisdiction of a Court is to be decided upon the averments made in the plaint and the relief claimed by the plaintiff and for that purpose written statement filed by the defendant cannot be taken into consideration and in the present case as the only relief claimed by the plaintiff-appellant was for the cancellation of sale deed dated 4.7.85 and such relief can be given only by a Civil Court and, therefore, the Court below was competent to entertain and decide the present suit but the learned Court below without considering the matter in a right perspective wrongly came to a conclusion that the Civil Court has no jurisdiction. Learned counsel further submitted that it is equally well settled that one should not introduce anything into the plaint which may not really be found there or which may be foreign to its main purpose. It was also submitted that the learned Court below overlooked the case actually pleaded by the plaintiff-appellant but based his order on the pleadings that ought to have been made by him. In support of his submissions, the learned counsel for the appellant has relied upon the cases of Ghani Mohammed vs. Meeru Khan reported in 1954 RLW 169 and Kailash Chand vs. Bajrang Lal & ors. Reported in AIR 1997 (Raj.) 205 = RLW 1997(1) Raj. 550. 5. In support of his submissions, the learned counsel for the appellant has relied upon the cases of Ghani Mohammed vs. Meeru Khan reported in 1954 RLW 169 and Kailash Chand vs. Bajrang Lal & ors. Reported in AIR 1997 (Raj.) 205 = RLW 1997(1) Raj. 550. 5. On the other hand, learned counsel for the respondents supporting the impugned order, submitted that the well settled legal position is that substance of the plaint and not the frame of the suit is to be considered for arriving at a conclusion whether civil or revenue court has jurisdiction to entertain and decide the suit. In the present case, although the relief claimed was for cancellation of the sale deed but that relief cannot be given unless the Court first comes to a conclusion that the plaintiff or her husband infact has ½ share in the land in dispute and for that purpose declaration to that affect has to be given and as the land in dispute is an agricultural land, that declaration can be granted only by a competent revenue Court under the provisions of the Act. According to learned counsel, therefore, the jurisdiction of Civil Court is barred under Section 207 of the Act. In support of his submission, the learned counsel for the respondents, relied upon the case of Mohanlal vs. Ratna reported AIR 1971 (Raj.), 164. 6. I have considered the submissions made on behalf of the respective parties and also gone through the record made available for my perusal as well as the relevant legal provisions and the case law cited on behalf of the parties. 7. In the present case, the relief claimed in the suit is that the sale deed dated 4.7.85 may be cancelled on the ground that the land which has been transferred by way of this sale deed is an ancestral property, and therefore, the deceased-husband of the plaintiff, who was son of defendant-respondent-Shri Bhola had ½ share in it and the remaining ½ share belongs to Shri Bhola and after the death of her husband, the plaintiff has ½ share in it. It is an admitted fact that the whole of the disputed land is recorded in revenue record only in the name of defendant-Shri Bhola. It is an admitted fact that the whole of the disputed land is recorded in revenue record only in the name of defendant-Shri Bhola. It has been averred by the defendants that the land in dispute is not an ancestral property and, therefore, son of defendant had no right in the life time of his father and, therefore, plaintiff also has no right in it. Thus, the main question to be determined is that whether the land in dispute is an ancestral property and, therefore, the deceased-husband of the plaintiff had ½ share in it and was co-tenant alongwith his father the defendant-Shri Bhola. It is well established that in order to determine the true nature of the relief claimed in a suit, the pith and substance and not the form in which the relief may be couched has to be considered. On considering the pleadings in the plaint in the present case carefully and applying the doctrine of pith and substance of the pleadings, I have come to the conclusion that the relief claimed in the suit really amounted to a relief for a declaration that the deceased-husband of the plaintiff and after his death the plaintiff has ½ share and is co-tenant in the land in question. The suit in the present case cannot be said to be one for mere avoidance of the sale deed dated 4.7.85. In my view unless a clear finding is given that the plaintiff is a co-tenant and has ½ share in the land in question, the sale deed in question cannot be cancelled. It cannot be said in the present case that unless the sale deed is cancelled, the revenue court cannot grant a declaration as to the share of the plaintiff in the land in question. As the plaintiff or her deceased-husband is not a recorded khatedar of the land in dispute, in my view, unless a revenue Court by way of a revenue suit declares under Section 88 of the Act that the deceased-husband of the plaintiff and after his death the plaintiff has ½ share or any other share and thus, is a co-tenant alongwith defendant-Shri Bhola in the land in dispute, the Civil Court cannot cancel the sale deed only on the prayer made by the plaintiff-appellant. It is well settled that a suit for cancellation of a deed affecting certain property can be brought by a person who cannot establish his title to the property so long as such deed is not cancelled. That would be so, in the case of a person, who was a party to the deed or was otherwise bound by it in law. It is also well settled that it is not necessary for a third party to a deed i.e. which is neither a party thereto nor is bound by it, to bring a suit for cancellation of the deed in question. In such a case it is not necessary for the plaintiff to get the sale deed cancelled in order to be entitled to the relief claimed by him. In the present case also, the plaintiff or her husband is not a party to the sale deed in question, therefore, it is not necessary for the plaintiff to get it cancelled as she or her husband is not bound by it. If the substance of the pleadings and relief claimed by the plaintiff-appellant is considered in a right perspective, it is clear that the plaintiff by means of the present suit is seeking a relief of declaration in her favour that she is khatedar tenant/co-tenant of ½ share of the land in dispute alongwith the defendant. The land in dispute being an agricultural land, such declaration can be given only by a revenue court under the provisions of the Act. It cannot be disputed that a suit for declaration regarding an agricultural land is to be filed under Section 88 of the Act if a person claims to be tenant or a co-tenant in the agricultural land in dispute. Section 207 of the Act provides that all suits of the nature specified in the third schedule shall be heard and determined by a revenue court and no other court other than a revenue court shall take cognizance of any such suit. In Item 5 of the third schedule a suit for declaration under Section 88 of the Act has been mentioned. In Item 5 of the third schedule a suit for declaration under Section 88 of the Act has been mentioned. I am also of the view that if the revenue court passes a decree for declaration in favour of the plaintiff to the effect that she is khatedar-tenant or co-tenant of ½ or any other share in the land in dispute, that court is equally competent to grant a consequential relief to the effect that the sale deed in question is void and ineffective to the extent of share of the plaintiff and it is not essential for the plaintiff to file a separate suit thereafter in a civil Court for getting the sale deed cancelled. I am also of the view that if the revenue court declares the plaintiff-co-tenant of the land in dispute, it is not necessary for her to get the sale deed cancelled as that would be automatically void and ineffective to the extent of share of the plaintiff. 8. The impugned order very well reveals that the learned Court below, after a thoughtful consideration looking to the facts of the case and prevailing legal position, has rightly arrived at a conclusion that the civil Court has no jurisdiction. 9. Consequently, by affirming the impugned order, the appeal being devoid of any merit is, hereby dismissed without any order as to costs.