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2012 DIGILAW 925 (RAJ)

Ravindra Kumar v. Swapan Choudhary

2012-04-12

VINEET KOTHARI

body2012
Hon'ble Dr. KOTHARI, J.—This writ petition has been filed by the defendant-petitioner Ravindra Kumar S/o Trilok Chand being aggrieved by the order dated 24.8.2011 of learned trial Court rejecting the application under Order 7 Rule 11 C.P.C. in a civil suit No. 21/2011 (Swapan Choudhary vs. Ravindra Kumar) pending in the Court of Additional Civil Judge (Senior Division) No.2, Bikaner. 2. The defendant filed the said application on the ground that the land of Khasra No.484, 485 in respect of which, the plaintiff had filed the present injunction suit against the defendants, was agricultural land, and therefore, the civil court had no jurisdiction to entertain the injunction suit in view of bar of jurisdiction under Section 207 of the Rajasthan Land Revenue Act, 1955. 3. Learned counsel for the petitioner defendant-Shri J.L. Purohit, Sr. Advocate has urged that the Court below has erred in rejecting the application under Order 7 Rule 11 CPC only on the basis of report of Tehsildar (Revenue), Bikaner with respect to said Khasra No. 484, 485 and also on the basis of the said land in question being reserved for residential purposes as per the master plan of Bikaner. He relied upon the decision of this Court in the case of Premi Devi vs. Devi Ram & Ors., 2009(1) RRT 255 and also decision of Hon'ble Supreme Court in the case of Om Prakash Agarwal and Others vs. Batara Behera and Ors., (1999) 3 SCC 231 and submitted that even if, such agricultural land falls within the municipal limits of Bikaner City, the same would not loose the character of being agricultural land, and the suit for injunction if at all, to be filed before the competent revenue Court and not before the civil court, and therefore the learned trial Court erred in rejecting the application under Order 7 Rule 11 C.P.C. 4. On the question from the Court about the right, title or interest of the defendant-petitioner Ravindra Kumar over the land in question, learned counsel for the petitioner-defendant was unable to satisfy this Court about the defendant-petitioner's right, title or interest in the land in question and despite a bare reading of the application under Order 7 Rule 11 C.P.C. filed by him before the learned trial Court, no such stipulation about his right, title or interest appears to have been made in the said application. Learned counsel for the petitioner-defendant, however submitted that firstly, it is not necessary to disclose such interest in the land and the decision of Order 7 Rule 11 C.P.C. application can be made on the plain reading of averments made in the plaint itself, and secondly, he drew the attention of the Court towards averments made in para No.2 of page 3 of the plaint wherein, the plaintiff has stated that defendant No.2 Smt. Udi widow of Bhanwara Ram and other defendants had got some registry of the title executed in April, 2011 and they raised these disputes. These averments according to learned counsel for the defendant-petitioner Ravindra Kumar, were enough to show his locus in the matter. 5. On the other hand, Mr. Manoj Bhandari, learned counsel appearing for the plaintiff-respondent Swapan Choudhary S/o Smt. Aarti Choudhary submitted that firstly the land in question was Abadi land as the part of the land was sold by mother of plaintiff Aarti Choudhary to one Little Flowner Society through Father Karmathi C.M.T. and part of the land of the said Khasra No.484, 485 was sold to one Aladin S/o Hussain Khan on 21.9.1990 as noted in para 2 and 3 of the impugned order and on some part of the same land, the UIT, Bikaner had sanctioned establishment of officers colony and the dispute between the present plaintiff and defendants pertained to a portion of the land on which the officers colony was sanctioned by UIT, Bikaner itself. It is submitted that said land in question could not be said to be an agricultural land and the fact that it was not being used or capable of being used for agricultural purposes was beyond the pale of doubt. It is submitted that said land in question could not be said to be an agricultural land and the fact that it was not being used or capable of being used for agricultural purposes was beyond the pale of doubt. He also drew the attention of the Court towards the decision of this Court in the case of Smt. Kaushalya Devi vs. State of Rajasthan, 1989(2) RLW 380, which judgment was cited before the learned court below also and noticed in para 5 of the order and he submitted that in the said judgment, this Court while dealing with the writ petition, had held that under the Notification dated June 16, 1976 issued under Section 3 of the Rajasthan Urban Improvement Trust Act, 1959, various areas of the city Bikaner were declared as 'urban areas' in the said notification and the relevant extract from the said judgment of which, he placed reliance is quoted below for ready reference : "The notification which has been issued by the Government in exercise of the powers under Section 3 read with item No.10 of sub-section (1) of Section 2 of the Act of 1959 reads as under : "TOUN PLANNING (GP.11) DEPARTMENT NOTIFICATION Jaipur, June 16, 1976. No F.1(13) T.P.11/72 - In exercise of the powers conferred by sub-section (1) of Section 3 read with item (x) of sub-section (1) of Section 2 of the Rajasthan Urban Improvement Act (Act No. 35 of 1959) and in supersession of this Department Notification No.F.1(13) TP/11/72 dated 8.3.1973 the State Government hereby declared that Urban area of Bikaner will include the following villages : 1. Bichwali 2. Anopsagar 3. Udasar 4. Ridmalsar Purohitan 5. Sharsh Kajani 6. Shivbari 7. Joharbsar 8. Kishmidesar 9. Bhojanshala 10. Bhinasar 11. Sujandesar 12. Shriramsar 13. Karmisar 14. Sharah Tallan 15. Rughnathsar 16. Nathusar 17. Sharsh Nathania 18. Chak Garbi 19. Bikaner City and 23. Gangashahar, by order Sd/- Gordhanji Mishra, Secretary to the Government." Mr. Manoj Bhandari, therefore submitted that the jurisdiction of civil court was not ousted by Section 207 of the Rajasthan Land Revenue Act and consequently, the application under Order 7 Rule 11 C.P.C. was rightly rejected. Rughnathsar 16. Nathusar 17. Sharsh Nathania 18. Chak Garbi 19. Bikaner City and 23. Gangashahar, by order Sd/- Gordhanji Mishra, Secretary to the Government." Mr. Manoj Bhandari, therefore submitted that the jurisdiction of civil court was not ousted by Section 207 of the Rajasthan Land Revenue Act and consequently, the application under Order 7 Rule 11 C.P.C. was rightly rejected. He also distinguished the judgment cited by the learned counsel for the petitioner drawing the attention of the Court Para 3 of the decision of the Hon'ble Supreme Court in the case of Om Prakash Agarwal (supra) wherein the Court proceeded on the premise that whether the land as defined in Section 2(14) of the Act and which is either being used or capable of being used for agricultural purposes within the municipal area, does come under the purview of the Orissa Land Reforms Act. Counsel therefore, submitted that unless the land in question was actually being used or capable of being used for agricultural purposes, even though situated within the municipal area, the revenue Court could not have jurisdiction for such suits in respect of such lands. 6. Having heard learned counsels at some length and upon perusal of the judgment and reasons given in the impugned order, this Court is satisfied that the learned Court below has not erred in rejecting the application under Order 7 Rule 11 C.P.C. filed by the defendant-petitioner. The court below has proceeded on the basis of report of Tehsildar (Revenue), Bikaner in respect of disputed is Abadi land on the basis of master plan reserving the said land for residential purposes. The facts noticed by the court below that portion of the land in question was sold for establishment of a Church while on the disputed portion, the officers colony was intended to be established by the Urban Improvement Trust, Bikaner and that was sufficient ground to uphold the jurisdiction of the civil court to the exclusion of the revenue Court. Whether the land in question was actually so far converted for residential purposes or not, is not determinative of the jurisdiction of the civil courts versus revenue Courts. That act of conversion required under municipal law for giving permission to raise construction, is altogether a different matter. Whether the land in question was actually so far converted for residential purposes or not, is not determinative of the jurisdiction of the civil courts versus revenue Courts. That act of conversion required under municipal law for giving permission to raise construction, is altogether a different matter. The jurisdiction of civil court is saved as soon as the pure character of land in question as agricultural land, is lost and that becomes an Abadi land though by virtue of some statute or de facto by user thereof for residential purposes or purposes other than agricultural. The thin line division of the jurisdiction of the civil Courts and revenue Courts cannot be crossed to oust the jurisdiction of civil court which can more appropriately decide the civil rights of the parties rather than the revenue Courts who are expected to decide the tenancy rights of the parties under the Rajasthan Tenancy Act coupled with Rajasthan Land Revenue Act which were enacted as land reforms laws in the year 1955 and 1956 respectively. 7. From the fact situation before the learned trial Court, irrespective of locus of the defendant-petitioner to claim any right, title or interest over the disputed land in question, this Court is satisfied that in view of the evidence available on record namely the report of Tehsildar (Revenue), reserving of the land for residential purposes in master plan and judgment of this Court in the case of Kaushalaya Devi (supra), the learned court below was justified in rejecting the application filed under Order 7 Rule 11 C.P.C. of the defendant-petitioner. 8. This Court finds no force in the present revision petition and the same is hereby dismissed. No costs.