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2015 DIGILAW 1668 (RAJ)

Pani v. Mangi Lal

2015-09-15

KANWALJIT SINGH AHLUWALIA

body2015
JUDGMENT 1. - The present writ petition has been filed under Article 226 read with Article 227 of the Constitution of India, praying that the order dated 12.5.2014 (Annexure-4) passed by Sub Divisional Officer, Ajmer, along with order dated 8.10.2014 (Annexure-5) passed by Revenue Appellate Authority and the order dated 13.6.2015 (Annexure-6) passed by Revenue Board, be set aside as they are contrary to the well settled legal position, and are perverse. 2. It is contended that the Sub Divisional Officer, Ajmer, Revenue Appellate Authority and the Board of Revenue have committed a grave illegality by dismissing the suit filed by the petitioners for declaration and injunction. 3. Mr. J.P. Goyal, the learned Senior Counsel appearing for the petitioners has submitted that Rama father-in-law of petitioner No. 1 and grandfather of the petitioners No. 2 to 7 was inducted sub-tenant before 15.10.1955 when Rajasthan Tenancy Act came into operation. It is stated that by virtue of enactment of Rajasthan Tenancy Act, 1955, Rama ancestor of the petitioners became khatedar of the land. The learned Senior Counsel submitted that on 14.6.2007, the petitioners had filed a suit before Sub Divisional Officer, Ajmer for declaration and injunction. During the pendency of the suit, Mangi Lal and Smt. Pani, both defendants to the suit sold their rights in the suit land to the respondent No. 4 Smt. Bali wife of Chhotu Gurjar, R/o Khanij Nagar, Ajmer. It is to be noted that in the written statement filed by Mangi Lal and Smt. Pani defendants to the suit, they had taken a stand that Rama was not tenant and cultivator of the land. He was not having possession and therefore, he is not entitled to be considered as Khatedar under Section 19 of The Rajasthan Tenancy Act. 4. On 10.5.2013, Smt. Bali, the respondent No. 4 who had stepped into the shoes of Mangi Lal and Smt. Pani defendants to the suit, filed an application under Order 7, Rule 11 CPC praying for rejection of the plaint. It will be apposite here to reproduce Order 7, Rule 11 CPC as under:- "11. 4. On 10.5.2013, Smt. Bali, the respondent No. 4 who had stepped into the shoes of Mangi Lal and Smt. Pani defendants to the suit, filed an application under Order 7, Rule 11 CPC praying for rejection of the plaint. It will be apposite here to reproduce Order 7, Rule 11 CPC as under:- "11. Rejection of plaint The plaint shall be rejected in the following cases: (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provision of Rule 9: Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff." 5. In her application filed under Order 7, Rule 11 CPC, Smt. Bali the respondent No. 4 had raised following arguments: (i) That she was not impleaded as party to the suit. (ii) That the plaint does not disclose any cause of action. (iii) That out of the total holding of 3 bighas and 1 biswa, i.e. suit land 13 biswas was acquired by the Irrigation Department and mutation to this effect was granted in favour of the Irrigation Department and since Irrigation Department has not been made party to the suit, the suit was bad for non-impleadment of the necessary party. 6. (iii) That out of the total holding of 3 bighas and 1 biswa, i.e. suit land 13 biswas was acquired by the Irrigation Department and mutation to this effect was granted in favour of the Irrigation Department and since Irrigation Department has not been made party to the suit, the suit was bad for non-impleadment of the necessary party. 6. A perusal of the grounds given in rule 11 of Order 7 reveal that the plaint can be dismissed on the ground that same does not disclose cause of action, same is not valued or relief claimed is not properly valued or plaint is barred by any law or copy of the plaint was not filed in duplicate or the plaintiff has not complied with the provisions of rule 9 of Order 7 CPC. 7. Mr. J.P. Goyal, the learned Senior Counsel has submitted that while deciding the application under Order 7, Rule 11 CPC, the court has to confine itself only to the averments made in the suit and the defence raised by the defendants cannot be taken into consideration. 8. Reliance has been placed upon Saleem Bhai & Ors. v. State of Maharashtra & Ors. [ (2003) 1 SCC 557 ] , wherein it was held that for deciding the application under Order 7, Rule 11 CPC, facts germane for deciding the application are averments in the plaint or application and pleas raised in the written statement cannot be taken into consideration. It was further held in case of Saleem Bhai (supra) that the direction given by the trial court to defendant to file written statement before deciding the application under Order 7, Rule 11 CPC was bad, as the trial court has to confine to the averments made in the plaint. It will be apposite here to reproduce Para 9 of the judgement as under:- "9. A perusal of Order 7, Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7, Rule 11 CPC at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. The trial court can exercise the power under Order 7, Rule 11 CPC at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7, Rule 11 CPC cannot but the procedural irregularity touching the exercise of jurisdiction by the trial court. The order, therefore, suffers from non-exercising of the jurisdiction vested in the court as well as procedural irregularity. The High Court, however, did not advert to these aspects." 9. Recently, the Hon'ble Supreme Court in P.V. Guru Raj Reddy Rep. By GPA Laxmi Narayan Reddy & Anr. v. P. Neeradha Reddy & Ors. Etc. [2015 DNJ (SC) 242] , held that for deciding application under Order 7, Rule 11 CPC stand of the defendant in the written statement or in the application is wholly immaterial and irrelevant. Only averments in the plaint are to be read as a whole. Para 9 of the judgement reads as under:- "9. Both the suits were filed in July 2002 which is well within three years of the date of knowledge, as claimed by the plaintiffs, of the fact that the property had not been transferred in the name of plaintiff No. 2 by the defendants Nos. 1 and 2. The aforesaid averments made in the plaint will have to be accepted as correct for the purpose of consideration of the application under Order 7, Rule 11 filed by the defendants Nos. 1 and 2. If that be so, the averments in the plaint would not disclose that either of the suits is barred by limitation so as to justify rejection of the plaint under Order 7, Rule 11 of the CPC." 10. Mr. 1 and 2. If that be so, the averments in the plaint would not disclose that either of the suits is barred by limitation so as to justify rejection of the plaint under Order 7, Rule 11 of the CPC." 10. Mr. Sanjay Mehrishi, the learned counsel for the respondents has submitted that since the land was acquired by Irrigation Department and possession was also taken and compensation was disbursed, non-impleadment of Irrigation Department as party to the suit is fatal to the case of the petitioner and therefore, the plaint has been rightly rejected and the Revenue Courts have no jurisdiction to try the suit over the land which already stand vested in the Irrigation Department. 11. Having heard the learned counsel for the parties, this Court is of the view that small part of the total holding was acquired by the Irrigation Department. Even if, Irrigation Department is not party to the suit, findings given in the suit will not bind the Irrigation Department and suit of the petitioner can be limited and confined to the holding which allegedly is in their possession. In the plaint, the plaintiffs have set up a case that their ancestor Rama being sub-tenant after enactment of The Rajasthan Tenancy Act became khatedar and they are in possession of the suit property, whereas in the written statement filed a contrary stand was taken by the defendants. Defendants projected that Rama was neither a subtenant nor was having possession over the suit land. Thus, real controversy before Sub Divisional Officer, Ajmer was to determine whether Rama was sub-tenant over the land and whether plaintiffs to the suit continued to be in possession of the suit property or not. Thus, it cannot be said that no cause of action was available to the petitioner-plaintiffs. 12. Furthermore, the respondent No. 4, Smt. Bali after purchase of the land from the defendants stepped into their shoes and she is bound by the written statement filed by them. Only remedy available for respondent No. 4, Smt. Bali was to implead herself as party to the suit after she had purchased the land, and it is an admitted fact that on 9.4.2013, respondent No. 4 was impleaded as party to the suit. 13. Only remedy available for respondent No. 4, Smt. Bali was to implead herself as party to the suit after she had purchased the land, and it is an admitted fact that on 9.4.2013, respondent No. 4 was impleaded as party to the suit. 13. Thus, the orders passed by three courts below cannot be sustained and therefore, the same are set aside and Sub Divisional Officer, Ajmer is directed to proceed with the plaint filed by the petitioners in accordance with the provisions of law.Consequently, the writ petition stands allowed.Writ Petition Allowed. *******