Jora Singh v. The Civil Judge(J. D. ) and Judicila Magistrate, Hanumangarh
2014-03-10
SANGEET LODHA
body2014
DigiLaw.ai
JUDGMENT 1. - This petition is directed against order dated 4.9.12 passed by the Civil Judge (J.D.), Hanumangarh in Civil Suit No.61/11, whereby an application preferred by the petitioners-defendants under Order 7, Rule 11 CPC seeking rejection of the plaint as barred by law, stands rejected. 2. The respondents-plaintiffs preferred a suit for declaration and permanent injunction before the Gram Nyayalaya, Hanumangarh. The petitioners sought declaration of his easementary right in respect of a way passing through the land comprising kila no. 3, 4 & 7, patthar No.87/281 in chak 10STG and prayed for permanent injunction against the petitioners herein not to disturb the actual enjoyment of their easementary right. 3. The petitioners-defendants preferred an application under Order 7, Rule 11 CPC seeking rejection of the plaint on the ground that the suit as framed is exclusively triable by the revenue court and the jurisdiction of the civil court is barred by virtue of Section 207 of Rajasthan Tenancy Act, 1955 ( for short "the Act"). 4. The application stands rejected by the court below observing & that the suit preferred regarding easementary right cannot be said to be barred by virtue of provisions of Section 207 of the Act. The court observed that rather by virtue of provisions of Section 251(2) of the Act , the plaintiff is entitled to maintain a regular suit before the Civil Court for establishing his right to way or easement. 5. Learned counsel for the petitioners contended that as per provisions of Section 207 of the Act, no court other than a revenue court is empowered to entertain the suits or applications based on a cause of action in respect of which any relief could be obtained from revenue courts by way of any such suit or application as specified in Third Schedule of the Act. Learned counsel submitted that admittedly, the easementary right is claimed by the petitioners in respect of agriculture land and therefore, the suit as framed is exclusively triable by the revenue court. 6. On the other hand, the counsel appearing for the respondents submitted that keeping in view the provisions of Section 207 of the Act, the order impugned passed by the court below does not suffer from any jurisdictional error so as to warrant interference by this court. 7. I have considered the submissions of the learned counsel and perused the material on record. 8.
7. I have considered the submissions of the learned counsel and perused the material on record. 8. It is true that under Section 91 of the Act, a suit is maintainable before the revenue court for declaration of any right other than the rights regarding which specific remedy is provided for under different provisions of the Act. That apart, under the provisions of Section 251 of the Act, any holder of the land in actual enjoyment of a right of way or other easement or right may seek protection against the enjoyment of such right being disturbed. But then, sub-section (2) of Section 251 specifically provides that no order passed under Section 251 shall debar any person from establishing such right or easement as he may claim by regular suit in a competent civil court. Thus, in considered opinion of this court, in view of the provisions of sub-section (2) of Section 251 of the Act, the suit as framed cannot be held to be barred by law. 9. There is yet another aspect of the matter. It is settled law that while deciding an application for rejection of the plaint under Order 7, Rule 11 (d), the court is not competent to go into correctness or otherwise of the allegations contained in the plaint. The plaint can only be rejected if from bare perusal of the statement in the plaint without any addition or subtraction it appears to be barred by law. In the considered opinion of this court, the petitioners have claimed that they are using the disputed way for last more than 20 years therefore, their easementary right stands crystallized. The petitioners have right to establish their easement and seek declaration in respect of such right from the Civil Court of competent jurisdiction and therefore, from perusal of the plaint, in no manner, it can be inferred that the suit preferred is barred by law. 10. In view of the discussion above, the order impugned passed by the court below does not suffer from any infirmity, illegality or jurisdictional error so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 11. In the result, the petition fails, it is hereby dismissed in limine.Petition Dismissed. *******