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2015 DIGILAW 261 (RAJ)

Mohd. Haroon v. LRs of Nishar Ahmed

2015-01-28

ARUN BHANSALI

body2015
JUDGMENT : Arun Bhansali, J. This writ petition under Article 226 & 227 of the Constitution of India is directed against the order dated 23.10.2013 passed by the trial court, whereby the application filed by the petitioner under Section 242 of the Rajasthan Tenancy Act, 1955 ('the Act') has been rejected. 2. The petitioner along with respondents No. 3 to 7 filed a suit for cancellation of decree dated 22.05.1968 passed in Revenue Suit No.99/1962 passed by the SDO, Merta, cancellation of sale deed dated 30.03.1988, declaration and permanent injunction against the respondents No.1 and 2 regarding the land comprised in Khasra No.2825 admeasuring 6 Bigha 5 Biswa and 2828 admeasuring 12 Bigha 1 Biswa situated at Merta. It was claimed that in the year 1970 the predecessor of plaintiff and defendants partitioned and land comprised in Khasra No.2825 and 2828 was handed over to Ahmedji, predecessor of plaintiff and since then they were in possession and have right by way of adverse possession also. The defendants have no right in land comprised in Khasra No.2825 and 2828 subsequently by sale deed dated 30.03.1988 land comprised in Khasra No.2790, 2824, 2822, 2822/1, 2821/1 and 2825 was transferred to defendant No.2. It was claimed that defendant No.1 had no right to transfer the land comprised in Khasra No.2825 and 2828 to defendant No.2; the disputed land was in their possession and the defendants were bent upon interfering with their peaceful possession. Ultimately it was prayed that the decree dated 22.05.1968 and sale deed dated 30.03.1988 be set aside, declaration be given that the land comprised in Khasra No.2825 and 2828 was of the title and in possession of the plaintiff and in the alternative the same be declared to be of joint ownership and possession of predecessor of plaintiff and defendant No.1 Ahmedji and Mehmoodji and injunction restraining the defendants from interfering in their possession was also sought. 3. A written statement was filed by the defendants No.1 and 2 and contesting the suit filed by the plaintiffs. 4. The trial court framed 12 issues. 5. 3. A written statement was filed by the defendants No.1 and 2 and contesting the suit filed by the plaintiffs. 4. The trial court framed 12 issues. 5. During pendency of the suit, the plaintiffs filed an application under Section 242 of the Act, inter alia, claiming that in view of the averments contained in the plaint that Ahmedji and Mehmoodji obtained right as sub-tenant and since 1970 plaintiffs being in possession, they have obtained right by way of adverse possession in the suit land; a relief of declaration regarding the said right has been sought and as issues No. 5 & 6 in this regard has been framed, the same may be referred to revenue courts and as cancellation of sale-deed has been sought qua which the civil court has jurisdiction. 6. A reply to the application was filed by the defendants disputing the contents of the application and questioning the jurisdiction of the civil court itself. 7. The suit was amended by the plaintiffs and the relief pertaining to cancellation of decree was withdrawn and an amended plaint was filed and the reliefs pertaining to cancellation of sale deed, declaration & permanent injunction remained in the suit. 8. After hearing the parties, the trial court by its impugned order came to the conclusion that the relief of declaration has been sought in the suit along with cancellation of sale deed based on adverse possession and whether such a declaration based on adverse possession can be granted or not was subject matter of evidence before the civil court and based on evidence, the same would have to be determined by the said court and dismissed the application. 9. Feeling aggrieved, the present writ petition has been filed by the plaintiff. 10. It is submitted by learned counsel for the petitioner that the trial court was not justified in dismissing the application and not referring the issues No. 5 & 6, which pertained to declaration to the revenue courts, inasmuch as, it is only the revenue courts, which have the jurisdiction to give declaration qua tenancy rights under the Act and Section 242 of the Act in this regard clearly envisage such a situation, however, the trial court by misconstruing the plaint averments has wrongly rejected the application filed by the plaintiffs. 11. Reliance was placed on full Bench judgment of this Court in Badrilal & Anr. 11. Reliance was placed on full Bench judgment of this Court in Badrilal & Anr. v. Moda & Ors., AIR 1979 Raj 142 and Hardayal & Anr. v. Jaggasingh & Ors., AIR 1969 Raj 89 . 12. Vehemently opposing the submissions, learned counsel for the defendants submitted that the plea raised by the petitioner was baseless and the same has been raised only with a view to delay the disposal of the suit, which is pending since 2004. The issues raised are not required to be referred to the revenue courts and in fact it is the entire suit, which is not maintainable before the civil court. However, merely seeking order under Section 242 of the Act was wholly mala fide and, therefore, the petition deserves to be dismissed. In the alternative, it was submitted that the issues sought to be remitted to the revenue courts can be determined by the civil court itself and there is no need to remit them as claimed. 13. Reliance was placed on Smt. Bismillah v. Janeshwar Prasad & Ors., AIR 1990 SC 540 ; Bhanwaroo Khan & Ors. v. Azim Khan & Ors., 1993(1) WLC (Raj.) 491 and Pratapi (Smt.) v. Jhamku & Ors., 2013(3) DNJ (Raj.) 1112. 14. I have considered the rival submissions. 15. Provisions of Section 242 of the Act reads as under:- "242. Procedure when plea of tenancy rights raised in Civil Courts- (1) If in any suit relating to agricultural land instituted in a civil court, any question regarding tenancy rights arises and such question has not previously been determined by a revenue court of competent jurisdiction, the civil court shall frame an issue on the plea of tenancy and submit the record to the appropriate revenue court for the decision of that issue only. Explanation - A plea of tenancy which is clearly untanable and intended solely to post the jurisdiction of the civil court shall not be deemed to raise a plea of tenancy. (2) The revenue court, after re-framing the issue if necessary, shall decide such issue only, and return the record together with its finding thereon, to the civil court which submitted it. (3) The civil court shall then proceed to decide the suit accepting the finding of revenue court on the issue referred to it. (2) The revenue court, after re-framing the issue if necessary, shall decide such issue only, and return the record together with its finding thereon, to the civil court which submitted it. (3) The civil court shall then proceed to decide the suit accepting the finding of revenue court on the issue referred to it. (4) The finding of the revenue court on the issue referred to it shall, for the purposes of appeal, be deemed to be part of the finding of civil court." 16. The provision provides that if in a suit relating to agricultural land instituted in a civil court, any question regarding tenancy rights arises and such question has not previously been determined by a revenue court, the civil court shall frame an issue on the plea of tenancy and submit the record to the appropriate revenue court for the decision of that issue only and after the finding is returned by the revenue court, the civil court shall proceed to decide the suit. 17. This Court in the case of Hardayal (supra) held that where more than one cause of action are joined in a suit triable by civil and revenue courts, the suit can be taken cognizance by a civil court and it would be necessary to refer the issue regarding the claim for tenancy rights to the revenue court if at all it is found necessary in the case. 18. On conflict of opinion, the matter was referred to the full Bench and the full Bench in the case of Badrilal (supra) agreed with the view taken in Hardayal's case (supra) and held that it would be necessary to refer only issue relating to claim of tenancy rights to the revenue court under Section 242 of the Act. 19. In the present case as noticed hereinbefore, the plaintiffs have claimed that the tenancy rights accrued to Ahmedji and Mehmoodji on coming into force of the Tenancy Act and both the brothers were in joint possession. The brothers partitioned in the year 1970 and the land comprised in Khasra No.2825 and 2828 fell in the share of Ahmedji and as such Mahmoodji and, thereafter the plaintiffs became tenants and on account of their uninterrupted possession since 1970, they have right by adverse possession. The brothers partitioned in the year 1970 and the land comprised in Khasra No.2825 and 2828 fell in the share of Ahmedji and as such Mahmoodji and, thereafter the plaintiffs became tenants and on account of their uninterrupted possession since 1970, they have right by adverse possession. Based on the said averments, the reliefs were sought and, inter alia, the following relief was sought:- ^;g gS fd ?kks"k.kk bl izdkj dh tkjh dh tkos fd dLck esM+rk dh ljgn esa fLFkr [kljk ua0 2825 jdck 6 ch?kk 5 fcLok o [kljk uEcj 2828 jdck 12 ch?kk 01 fcLok oknhx.k ds vf/kdkj dk dk'r o dCtklqnk gSA fodYi esa fookfnr [kljku esgewn th o vgen th ds la;qDr o leku vf/kdkj dk ?kksf"kr fd;k tkdj oknhx.k ds vf/kdkj dk ?kksf"kr fd;k tkosA* 20. A bare reading of the plaint averments and he relief quoted hereinbefore clearly reveals that the plaintiffs have sought declaration regarding their right and that the land was in their cultivatory possession and in the alternative a declaration regarding joint and equal right of Ahmedji and Mehmoodji was sought. 21. The trial court has framed issues No. 5 & 6, which pertain to the rights of plaintiffs to seek declaration and injunction. 22. This Court in the case of Bhanwaroo Khan (supra) wherein the relief claimed in the suit was of almost identical nature seeking declaration regarding tenancy right and cultivatory possession and where the jurisdiction of the civil court was questioned regarding dealing with the said suit, held that mainly the suit was for cancellation of sale deed and other reliefs were ancillary, it was held as under:- "4. For determining whether the Civil Court has the jurisdiction or the Revenue Court has the jurisdiction to try the suit, the frame of the suit, the allegations contained in the plaint, the substance and the main object of the suit, the pith and substance of the relief and not merely its form, are required to be looked into. Any infringement of a legal right with respect to the property or the office, is always actionable in a Civil Court unless its jurisdiction is expressly or impliedly barred. Any infringement of a legal right with respect to the property or the office, is always actionable in a Civil Court unless its jurisdiction is expressly or impliedly barred. If we look into the averments made by the plaintiffs in the plaint and the relief prayed-for, then it is clear that the plaintiffs seek to establish a title in themselves with respect to the land in question which was inherited by them from their grant-father Bhopal Khan and after whose death the land was mutated in the names of his two sons, viz., Mehboob Khan and Mishri Khan. The plaintiffs cannot claim their title for this land without removing this insuperable obstruction created by their uncle Mehboob Khan by executing sale-deed dated 24-6-67, in favour of Azim Khan till the sale-deed executed by Mehboob Khan in favour of Azim Khan is cancelled. The cloud created by Mehboob Khan over the rights of the plaintiffs cannot be removed and a potential danger against their rights will subsist till the sale-deed is cancelled. Though the plaintiffs were not party to the sale-deed, but they are seeking relief to establish their rights in the ancestral property in which they are threatened by the registered transaction, i.e., the sale-deed entered into by Mehboob Khan their uncle in favour of Azim Khan. It is, therefore, a case of the nature where the action is really based on the need for cancellation of the sale-deed, without which the relief prayed in the present suit cannot be granted. The plaintiffs though are stranger to the instrument of the sale-deed, but they seek to adjudge the sale-deed void and to get it cancelled. It is, therefore, a case of the nature where the action is really based on the need for cancellation of the sale-deed, without which the relief prayed in the present suit cannot be granted. The plaintiffs though are stranger to the instrument of the sale-deed, but they seek to adjudge the sale-deed void and to get it cancelled. The frame of the suit, the averments made in the plaint, the relief prayed for and the object for which the suit has been filed, make it clear that it was mainly a suit for cancellation of the sale-deed and all the other reliefs are ancillary to that relief and as such the jurisdiction of the Civil Court is not barred." Admittedly, the plaintiffs have sought cancellation of the sale deed dated 30.03.1988 executed in favour of defendant No.2 and have claimed adverse possession qua the land in dispute based on a partition between Ahmedji and Mehmoodji in the year 1970 as purportedly the land comprised in Khasra No. 2825 and 2828 fell in their share, essentially in the present suit there isn't any declaration sought qua the plaintiffs' tenancy right and the declaration based on adverse possession as sought is merely ancillary as held by this Court in the case of Bhanwaroo Khan (supra) and it is apparent that the entire plea essentially is based on adverse possession, which aspect can very well be determined by the trial court based on the evidence of the parties. The provisions of Section 242 of the Act are not applicable and the order passed by the trial court cannot be faulted. In view of the above discussions, there is no substance in the writ petition, the same is, therefore, dismissed. The stay petition is also dismissed. No order as to costs. Petition Dismissed.