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2017 DIGILAW 118 (RAJ)

Ram Pratap S/o Shri Duda Ram v. State of Rajasthan through District Collector, Hanumangarh

2017-01-10

SANGEET LODHA

body2017
ORDER : Sangeet Lodha, J. 1. This writ petition is directed against order dated 4.8.16 passed by the Board of Revenue Rajasthan, Ajmer, whereby the revision petition preferred by the petitioner under Section 230 of Rajasthan Tenancy Act, 1955 (for short "the Act"), against the order dated 28.8.14 passed by the Assistant Collector-cum-Sub Divisional Officer, Rawatsar, in Revenue Suit No. 125/10, rejecting an application preferred by the petitioner under Order 7, Rule 11 CPC, has been partly allowed. 2. The fourth respondent/plaintiff preferred a suit for partition and permanent injunction before the Assistant Collector-cum-Sub Divisional Officer, Rawatsar, inter-alia against the petitioner/defendant in respect of the agriculture land ad measuring 57 bighas comprising khasra no. 1 min and 95 bighas comprising khasra no. 10 min, total 142 bighas in chak no. 3 NWD, Tehsil Rawatsar. 3. The suit is being contested by the petitioner/defendant by filing a written statement thereto. On the basis of pleadings of the parties, the trial court framed the issues and the matter is posted for evidence. At this stage, the petitioner preferred an application under Order 7, Rule 11 CPC seeking rejection of the plaint, stating that a suit for partition filed by the plaintiff's father Dhanpat, the petitioner herein, and Ramkishan s/o Jasram, was decreed by the court of Assistant Collector, Hanumangarh vide judgment and decree dated 19.9.84 passed in Revenue Suit No. 526/84. It was contended that in view of the partition decree already passed during the lifetime of plaintiff's father Dhanpat, the suit preferred by the plaintiff-Rampyari is barred by principle of res judicata. That apart, it was contended that the plaintiff's father had expired in the year 1994 and thus, after lapse of about 20 years, the suit preferred by the plaintiff is barred by limitation. That apart, it was contended that the plaintiff has filed the suit inter-alia against Jasraj, a dead person. 4. The application was contested by the respondent/plaintiff by filing a reply thereto, taking the stand that the plaintiff's father Dhanpat was sole khatedar of the land and his brothers had no share whatsoever in the land in question. The plaintiff averred that she has already filed an appeal before the Revenue Appellate Authority, Hanumangarh against the judgment and decree dated 19.9.84. The plaintiff averred that she has already filed an appeal before the Revenue Appellate Authority, Hanumangarh against the judgment and decree dated 19.9.84. Regarding the suit being filed against the dead person, it was stated that in the cause title Jasraj has been shown as dead and as a matter of fact, on account of inadvertent error instead of Ramkishan s/o Jasraj, Jasraj has been impleaded as party defendant in the suit. 5. After due consideration, the trial court arrived at the finding that issues have already been framed and it would be appropriate that the matter is decided on merits on the basis of the evidence to be led by the parties. Accordingly, the Revenue Court rejected the application preferred by the petitioner/defendant. 6. Aggrieved by the order dated 28.8.04 passed by the Revenue Court, the petitioner/ defendant preferred a revision petition before the Board of Revenue. The Board of Revenue observed that in the suit for partition filed in the year 1984 by inter-alia the plaintiff's father, the plaintiff was not a party and therefore, whether she had knowledge about the decree passed or not is an issue which needs to be decided on the basis of the evidence to be led by the parties. The Board opined that the question regarding the decree passed being binding upon the respondent/plaintiff also need to be decided on the basis of the evidence. The Board observed that since the legal representatives of deceased Jasraj have not been taken on record, the suit as against Jasraj stands abated. Accordingly, the application preferred by the petitioner/defendant under Order 7, Rule 11 has been partly allowed. Hence, this petition. 7. Learned counsel appearing for the petitioner contended that the Revenue Court has committed error apparent on the face of record in rejecting the application preferred by the petitioner on the ground that since issues have already been framed, it will be appropriate to decide the suit on merits on the basis of evidence to be led by the parties. Learned counsel submitted that the application under Order 7, Rule 11 can be filed at any stage of the proceedings. Learned counsel submitted that the plaintiff's father had expired in the year 1994 whereas the suit is filed in the year 2010 while impleading Jasraj as party who had expired 65 years ago. Learned counsel submitted that the application under Order 7, Rule 11 can be filed at any stage of the proceedings. Learned counsel submitted that the plaintiff's father had expired in the year 1994 whereas the suit is filed in the year 2010 while impleading Jasraj as party who had expired 65 years ago. Learned counsel submitted that the suit filed is apparently barred by limitation. 8. I have considered the submissions of the learned counsel and perused the material on record. 9. Indisputably, the application under Order 7, Rule 11 of CPC, seeking rejection of the plaint can be filed at any stage of the proceedings. But then, while considering the application preferred under Order 7, Rule 11, the court is required to look into the averments made in the plaint. Nothing can be added or subtracted and the court is not competent to go into the correctness or otherwise of the allegation in the plaint. From perusal of the averments made in the plaint, it cannot be said that it does not disclose any cause of action or it is barred by law. The question with regard to the knowledge of the plaintiff regarding the decree being passed by the revenue court of competent jurisdiction, is question of fact which could be decided only on the basis of the evidence to be led by the parties. The question of limitation raised is also a mixed question of law and facts, which needs to be decided on the basis of the evidence to be led by the parties. Suffice it to say that from perusal of the plaint, in no manner it can be inferred that it is barred by law. In this view of the matter, the Board of Revenue has committed no error in rejecting the revision petition preferred by the petitioner to the extent indicated herein above. 10. No case for interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India is made out. 11. The writ petition is therefore, dismissed in limine. Petition dismissed.