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2015 DIGILAW 39 (CHH)

Rahas Bai v. Punabai

2015-02-02

GOUTAM BHADURI

body2015
ORDER Goutam Bhaduri, J. 1. Challenge in this petition is to the order dated 23.07.2014, passed by the Civil Judge Class-I, Raigarh, District Raigarh, passed in Civil Suit No. 36-A/2011, whereby the application filed by under Order 7 Rule 11 of the Code of Civil Procedure was rejected. This petition is filed by the defendants. 2. Briefly stated facts of the case is that a civil suit was filed for declaration and permanent injunction in respect of the suit land bearing Kh. No. 129/1, area 0.142 hectare (at present Kh. No. 129/1Gha and 120/16), situated at village- Baikunthpur, P.C. No. 13. In the suit a prayer was also made to declare the order passed by the Additional Collector in appeal is not binding on the plaintiffs. 3. After notice of the suit, an application under Order 7 Rule 11 of C.P.C. was filed by the defendants/appellants inter-alia claiming that the suit is barred U/s. 257 of the Land Revenue Code. 4. Learned counsel for the applicant would submit that the suit is not tenable as declaration was sought that the order of the Additional Collector was U/s. 170B of Land Revenue Code is not binding. It is submitted, such challenge is barred U/s 257 of the Land Revenue Code before any Civil Court and as such the suit itself is being not tenable be dismissed summarily. 5. Perusal of the order dated 23.07.2014 would show that the plaintiff had objected to such averments made by the defendants on the ground that when the suit land was transferred at that time, the plaintiffs were not governed under provisions of Section 170B of the Land Revenue Code, Perusal of the plaint would show that the suit is filed for declaration and permanent injunction and also to annul the order passed by the Revenue Officer. Perusal of the order filed alongwith this petition, would show that the plaintiff was not a party in such revenue proceeding and since the order was passed in his absence, the suit was filed for declaration and permanent injunction alongwith other relief. Therefore, taking into facts involved in this case and after going through the averments of the plaint, it can not be stated that the plaintiff is liable to be non-suited under Order 7 Rule 11 of CPC as it involved mixed question of facts and law. Therefore, taking into facts involved in this case and after going through the averments of the plaint, it can not be stated that the plaintiff is liable to be non-suited under Order 7 Rule 11 of CPC as it involved mixed question of facts and law. Therefore, after going through the plaint averments, at this stage it can not be stated that the suit is barred under the provisions of Section 257 of the Land Revenue Code. The defendants are at liberty to raise the ground in the written statement and issue can only be decided after full enquiry is made on the subject issue after adducing the evidence. The plaint averments do not render the suit to be barred under any statute. 6. Consequently, I am of the opinion that the learned Court below has neither exceeded his jurisdiction nor has failed to exercise his jurisdiction vested in it in dismissing the application under Order 7 Rule 11 of C.P.C. 7. Resultantly, the revision has no merit and is accordingly dismissed. Revision Dismissed.