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2015 DIGILAW 1329 (RAJ)

Pukhraj v. Babulal

2015-07-17

SANGEET LODHA

body2015
JUDGMENT : Sangeet Lodha, J. This petition is directed against order dated 12.5.15 of the Board of Revenue, Rajasthan whereby the revision petition preferred by the petitioners questioning the legality of order dated 16.12.14 passed by the Assistant Collector, Pokaran in Revenue Suit No.28/14 rejecting the application preferred by the petitioners under Order 7, Rule 11 CPC, has been dismissed. 2. The respondent-plaintiff preferred a suit against the petitioners-defendants under Section 88, 188 and 92A of the Rajasthan Tenancy Act, 1955 ("the Act") before the Assistant Collector, Pokaran in respect of the land ad-measuring 120 bighas comprising khasra no.399 situated at village Luva. The petitioners-defendants filed an application under Order 7, Rule 11 CPC for rejection of the plaint on the ground that the suit as framed is barred by principle of res judicata. It was averred that in respect of the land which is subject matter of the suit, the District Collector vide order dated 25.10.1960 had already passed an order directing the Patwari concerned to rectify the record and enter the land in question in the name of the petitioners' ancestor Ranidan and thus, the suit preferred by the respondent-plaintiff is barred by principle of res judicata. 3. The application preferred by the petitioners was rejected by the Assistant Collector, Pokaran vide order dated 16.12.14 inter-alia observing that applicability of the principle of res judicata to the facts of the case is a mixed question of law and facts and therefore, the question of rejecting the plaint under Order 7, Rule 11 CPC does not arise. That apart, the Court observed that the proceedings before the District Collector disposed of vide order dated 25.10.60 was not between the same parties and no adjudication regarding the rights of the parties was made by the District Collector after determination of the issues and therefore, the principle of res judicata is not attracted in the matter. 4. Aggrieved by the order dated 16.12.14 passed by the Assistant Collector, Pokaran, the petitioners-defendants preferred a revision petition before the Board of Revenue Rajasthan which stands rejected by the order impugned. Hence this petition. 5. 4. Aggrieved by the order dated 16.12.14 passed by the Assistant Collector, Pokaran, the petitioners-defendants preferred a revision petition before the Board of Revenue Rajasthan which stands rejected by the order impugned. Hence this petition. 5. Learned counsel appearing for the petitioners submitted that the petitioners' ancestor Ranidan had preferred a suit under Section 88 of the Act, which was allowed by the District Collector after obtaining the report from Patwari and due consideration of the evidence on record and thus, order dated 25.10.60 has attained finality. Learned counsel submitted that the rights of the petitioners over the land in question having been determined by the Revenue Court of competent jurisdiction, the suit for declaration and correction of record preferred by the petitioners is ex-facie barred by principles of res judicata and thus, the Board of Revenue has seriously erred in dismissing the revision petition preferred by the petitioners. 6. I have considered the submission of the learned counsel for the petitioners and perused the material on record. 7. 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. It is not even the case of the petitioners that from the perusal of the plaint, it is apparent that the suit preferred by the respondent-plaintiff is barred by principle of res judicata. As a matter of fact, the plea regarding applicability of the principle of res judicata to the facts of the present case is sought to be raised on behalf of the petitioners-defendants on the basis of the averments made in the application preferred under Order 7, Rule 11 CPC. Obviously, the question of applicability of principle of res judicata is a mixed question of fact and law and has to be decided on the basis of the evidence to be produced by the parties on record and thus, the Assistant Collector has committed no error in rejecting the application preferred by the petitioners under Order 7, Rule 11 CPC. 8. 8. Moreover, the order dated 25.10.60 placed on record, does not reveal that the rights of the parties were determined by the District Collector after trial. As a matter of fact, from perusal of the order, it appears that the proceedings before the District Collector was not a regular suit under Section 88 of the Act, rather by the said order, an application preferred by the petitioner for rectification of the revenue record in respect of the land in question was allowed by the District Collector. Further, it is not disputed before this Court that the respondent-plaintiff was not even party to the proceedings before the District Collector and thus, prima-facie the question of applicability of principle of res judicata does not arise. 9. In view of the discussion above, the order impugned passed by the Board of Revenue does not suffer from any jurisdictional error so as to warrant interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 10. In the result, the petition fails, it is hereby dismissed in limine. Petition dismissed.