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2016 DIGILAW 701 (RAJ)

Amrit Lal v. Heera Ram

2016-05-18

ARUN BHANSALI

body2016
ORDER Mr. Arun Bhansali, J. This revision petition has been filed by the petitioner aggrieved against the order dated 19/3/2016 passed by the trial court, whereby, the application filed by the petitioners under Order 7, Rule 11 C.P.C. has been rejected. 2. The respondents Ram Ratan & Heera Ram filed a suit for declaration of the registered sale deed dated 27/11/2013 as illegal, void and ineffective and also for declaration of revenue entries, partition, conversion order dated 5/2/2014 as illegal, void and ineffective, dispossession, mandatory & perpetual injunction against the petitioners. 3. The suit was filed with the averments that agricultural land ad measuring 18.83 hectares comprised in various khasra situated at Koselav was in joint khatedari of plaintiffs and defendant nos. 5 to 7. The mother of plaintiff No.1 and his three brothers have 1/24th share in the joint khatedari and, therefore, the plaintiff no.1 has 1/72th share and plaintiff no.2 has 1/24th share in the joint tenancy & among the tenants the land has not been partitioned by metes and bounds and same was indicated as joint khatedari. 4. The defendant nos. 5, 6 and 7 have 1/36th share each and in absence of partition, none of the joint khatedars has any right to sell specific portion of the land. Based on the said averments, and the averment that the sale deed dated 27/11/2013 executed by defendant no. 4. The defendant nos. 5, 6 and 7 have 1/36th share each and in absence of partition, none of the joint khatedars has any right to sell specific portion of the land. Based on the said averments, and the averment that the sale deed dated 27/11/2013 executed by defendant no. 5 to 7 was contrary to Section 41, 211, 53 of the Rajasthan Tenancy Act, 1955 and Section 44 of the Transfer of Property Act and the Land Record Rules, following reliefs were sought : 14- fd izkFkZuk oknhx.k fuEu gS%& v & fd iathc) fodz; foys[k fnukad 27-11-2013] ukekUrjdj.k la[;k 1883 Lohd`fr fnukad 31-12-2013] tks foHkktu gsrq ikfjr vkns'k fnukad 08-01-2014] ukekUrjdj.k la[;k 1885 Lohd`fr fnukad 10-01-2014] fnukad 05-02-2014 dks ikfjr laifjorZu vkns'k dzekad jkt@2014@157&161] jkt@2014@163&167] jkt@2014@169& 173 ,oa mDr vk/kkjksa ij Hkw&vf/kdkj vfHkys[kksa esa fd;s x;s bUnzktksa dks dkuwuu voS/k] 'kwU; ,oa fu"izHkkoh ?kksf"kr djus dh ?kks"k.kk dh vkKkfIr cgd oknhx.k fo:) izfroknhx.k tkjh QjekosaA [k & fd oknxzLr Hkwfe ls izfroknhx.k dks csn[ky djus] dPpk iDdk fuekZ.k dk;Z] lqj{kk nhokj bR;knh dks vkns'kkRed fu"ks/kkKk ds tfj;s /oLr djus gsrq vkns'kkRed fu"ks/kkKk dh vkKfIr cgd oknhx.k fo:) izfroknhx.k tkjh QjekosaA x & fd oknxzLr Hkwfe ls izfroknhx.k dks csn[ky djus ,oa izfroknhx.k }kjk oknxzLr Hkwfe ij voS/k rkSj ls fd;s x;s& fd;s tk jgs dPps iDds fuekZ.k ds <+kapk (Structure), lqj{kk nhokj dks /oLr dj gVk;s tkus ds ckn izfroknhx.k iathc) fodz; fnukad 27-11-2013 laifjorZu vkns'kksa ds vk/kkj ij iqu% dCtk ugha djs] fdlh Hkw&Hkkx dk cSpku gLrkUrj.k ugha djsa] oknhx.k ,oa vU; lg [kkrsnkjksa dks fufgr lg[kkrsnkjh gd gdwdksa esa uktk;t gjdrksa ds }kjk gLr{ksi ugha djsa] u gh vU; fdlh ls djkos ftl gsrq 'kk'or dky ds fy, fu"ks/kkRed O;kns'k gsrq LFkkbZ fu"ks/kkKk dh vkKfIr cgd oknhx.k fo:) izfroknhx.k tkjh QjekosaA ?k & fd vkKfIr dh ikyuk esa Hkw&vf/kdkj esa iathc) fodz; foys[k fnukad 27-11-2013 ls iwoZ esa fLFkr bUnzktksa dh 'kkafr bUnzkt fd;s tkus gsrq ,oa mi iath;d] leqsjiqj dh vfHkj{kk esa fLFkr iathc) fodz; foys[k fnukad 27-11-2013 ij vkKfIr dk bUnzkt yky L;kgh ls vafdr fd;s tkus gsrq vkns'k tkjh QjekosaA M & fd okn O;; oknhx.k dks izfroknhx.k ls fnyk;k tkosA ; & fd vU; dksbZ vuqrks"k tks oknhx.k ds fgrdj gks iznRr djkosA 5. After the summons of the suit were served on the defendants, the defendants filed an application under Order 7, Rule 11 C.P.C. inter alia praying therein that the suit has been instituted for declaration of sale deed dated 27/11/2013 as null and void in which the consideration for the sale has been shown to be Rs. 7,25,000/- and, therefore, court fee paid is insufficient and, therefore, the suit was liable to be dismissed, besides the fact that the court lacks pecuniary jurisdiction and it was further claimed that as the relief claimed pertains to agricultural land, the suit was triable by Revenue Court and the Civil Court lacks jurisdiction and, therefore, the plaint was liable to be rejected under Order 7, Rule 11 (d) C.P.C. 6. The plaintiffs resisted the application. 7. The trial court after hearing the parties came to the conclusion that the valuation of the suit and the court fee paid was sufficient in terms of the provisions of Section 7(2)(a) of the Rajasthan Court Fees & Suit Valuation Act, 1961 ('the Court Fees Act'). Further, as the suit pertains to declaration of the sale deed as void and other reliefs have been sought as consequential, therefore, the Civil Court had the jurisdiction to try the suit. 8. It is submitted by the learned counsel for the petitioners that the trial court fell in error in rejecting the application filed by the petitioners inasmuch as if the suit is maintainable before the civil court, the valuation of the suit is incorrect as the same should be in accordance with the provisions of Section 38 of the Court Fees Act and if the petitioners treat the sale deed as void and the suit does not fall within the parameters of Section 38 of the Court Fees Act, the civil court would lose jurisdiction and the suit then would be triable by the revenue court and, therefore, on that count the order impugned deserves to be quashed and set aside. 9. Reliance was placed on Rukmani v. Bhola & Ors., 2012 (2) WLC (Raj.) 797, Ram Narayan v. Mangi Lal & Ors., 2014 WLC (Raj.) UC 291, Mohar Singh v. Wazir Chand, 1969 RLW 347. 10. 9. Reliance was placed on Rukmani v. Bhola & Ors., 2012 (2) WLC (Raj.) 797, Ram Narayan v. Mangi Lal & Ors., 2014 WLC (Raj.) UC 291, Mohar Singh v. Wazir Chand, 1969 RLW 347. 10. Vehemently opposing the submissions, learned counsel appearing for the respondents submitted that the trial court was perfectly justified in dismissing the application filed by the petitioners inasmuch as it cannot be said that the jurisdiction of the civil court is barred for the reliefs claimed by the plaintiffs. It was submitted that the suit is for declaration and governed by Section 24 of the Court Fees Act and has to be valued in terms of Section 7 of the Court Fees Act and has been rightly valued. Regarding the jurisdiction of the revenue court, it was submitted that the provisions of Section 207 of the Tenancy Act enumerate the types of the suit which can be filed and the type of declaration which is sought by the plaintiffs is not envisaged by the said provision and, therefore, it cannot be said that the suit as filed by the plaintiffs is barred under Section 207 of the Tenancy Act and consequentially the revision petition filed by the petitioners deserves to be dismissed. 11. Reliance was placed on Suhrid Singh v. Randhir Singh & Ors., 2010 (2) Civil Court Cases 510 (SC), Baijnath Singh & Anr. v. Jagdish & Ors., 2014 (4) Civil Court Cases 699 (M.P.), Makhan Lal & anr. v. Urban Improvement Trust Jaipur & anr., 1978 WLN 31, Shantilal Agarwal v. Smt. Ramabai & Ors., AIR 1974 Raj. 69 and Horil v. Keshav & anr., 2012 (1) WLC (SC) Civil 405. 12. I have considered the submissions made the learned counsel for the parties and have perused the material available on record. 13. So far as the issue pertaining to valuation of the suit and the pecuniary jurisdiction of the court is concerned, it is not in dispute that the sale deed dated 27/11/2013, which is subject matter of the present suit is for a consideration of Rs. 7,50,000/-. 13. So far as the issue pertaining to valuation of the suit and the pecuniary jurisdiction of the court is concerned, it is not in dispute that the sale deed dated 27/11/2013, which is subject matter of the present suit is for a consideration of Rs. 7,50,000/-. The Hon'ble Supreme Court in the case of Suhrid Singh (supra) after considering various aspects as to in what cases a declaration is required and in what cases cancellation is required held that difference between a prayer for cancellation and declaration is that an executant of the document has to seek cancellation of the deed while a person, who is not an executant of the document, if he wants to avoid the deed, is required to sue for a declaration of the deed as invalid, void and nonest. 14. Admittedly, the plaintiffs are not the executants of the sale deed in question and, therefore, relief of declaration sought by them is justified in the circumstances of the case. Once the suit is for declaration, provisions of Section 24 of the Court Fees Act would come in picture, wherein, the said provision requires that in a suit for a declaratory decree or order, whether with or without consequential relief, where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the 'market value' of the property, subject to a minimum fee of Rs. 20/-. The determination of the market value has to be done in terms of Section 7 of the Court Fees Act which provides that market value of the land in a suit falling under clauses (a) and (b) of Section 24 shall be deemed to be where rent in respect of such land has been settled, twenty-five times the rent rate sanctioned therefor during the last settlement and based on the said provision the plaintiffs have valued the suit at Rs. 4568.50 p. and has paid the court fee on the same. In view thereof, it cannot be said that the plaintiffs have valued the suit incorrectly and that the court lacks pecuniary jurisdiction, as alleged by the petitioners. 15. 4568.50 p. and has paid the court fee on the same. In view thereof, it cannot be said that the plaintiffs have valued the suit incorrectly and that the court lacks pecuniary jurisdiction, as alleged by the petitioners. 15. So far as the jurisdiction of the civil court for the present suit being barred is concerned, the provisions of Section 207 of the Tenancy Act provides that all suits and application of the nature specified in the Third Schedule shall be heard and determined by a revenue court and that no court other than a revenue court shall take cognizance of any such suit or application or of any suit or application based on a cause of action in respect of which any relief could be obtained by means of any such suit or application. 16. The Third Schedule appended to the Tenancy Act provides for the suit for declaration under Section 88, 89, 90 and 91 of the Act. While under Section 88, suit for declaration of the plaintiffs right as a tenant, or as a tenant of khudkasht, or as a sub-tenant, or for a share in a joint tenancy can be filed; suit for declaration under Section 89 pertains to class of tenancy and other related issues can be filed; under Section 90 suit pertains to declaration of land as khudkasht can be filed and Section 91 provides for declaration of any other right. 17. In the present case, a bare look at the plaint reveals that the plaintiffs have sought declaration regarding the sale deed being void and nonest on account of the same being contrary to essential provisions of Section 44 of the Transfer of Property Act and various provisions as contained under the Rajasthan Tenancy Act. The nature of declaration as sought by the petitioners is apparently not governed by the provisions of Section 88 to 91 of the Tenancy Act and the type of suits which have been enumerated in Third Schedule so as to attract the bar under the provision of Section 207 of the Act and, therefore, on that count it cannot be said that the jurisdiction of the civil court was barred. 18. 18. So far as the judgment in the case of Rukmani (supra) is concerned, the suit therein was for cancellation of registered sale deed based on the petitioner's half share as the sale deed was executed for the entire land. In the present case, the plaintiffs continue to have their share in the land in question, however, the dispute pertains to the execution of sale deed qua particular portion of the land and as such the judgment in the case of Rukmani (supra) has no application. 19. Similarly, in the case of Ram Narayan (supra) the declaration was sought regarding ?th share in the borewell, water pump and electricity connection and consequential injunction was sought against the defendants from interfering with the use and against the electricity company for disconnecting the electricity connection, which relief also pertains to the share in the land with declaration of plaintiff's right as tenant. 20. In the case of Mohar Singh (Supra) again the issue pertains to declaration regarding the plaintiff being the sole khatedar of the land in question, which is not the case in the present suit, where the plaintiffs continued to be the khatedar tenants. However, the dispute pertains to sale executed qua a particular portion of the land. 21. In view of the above discussion, it is apparent that the suit filed by the plaintiffs seeks declaration regarding the sale deed being illegal, void and nonest on account of sale of specific land by the co-tenants and such declaration is not envisaged by provisions of the Tenancy Act so as to attract bar of Section 207 of the Tenancy Act. 22. Consequently, the application filed by the petitioner under Order 7, Rule 11 has no substance and the trial court was justified in rejecting the application filed by the petitioners. No interference is called for in the order impugned, the revision petition is, therefore, dismissed.