Rajeshwar Singh s/o Ram Singh Ji Chundawat v. State of Rajasthan through District Collector, Udaipur
2017-05-29
SANGEET LODHA
body2017
DigiLaw.ai
ORDER : Sangeet Lodha, J. This revision petition is directed against order dated 27.5.16 passed by the Civil Judge (S.D.), Salumbar in Civil Suit No.10/14, whereby an application preferred by the petitioners under Order 7, Rule 11 CPC, stands dismissed. 2. The respondent/plaintiff filed a suit under Section 38, 39 of Specific Relief Act, 1963 (for short "the Act of 1963") seeking injunction inter alia against the petitioners not to demolish/damage the property subject matter of the suit namely, Naginabari, which is alleged to be ancient and historical archaeological building protected under the provisions of the Rajasthan Monuments, Archaeological Sites and Antiquities Act, 1961 (for short "the Act of 1961"). It is averred in the petition that taking benefits of negligence on the part of the State authorities, the defendant no.7 & 8 have executed sale deed of the property in question in favour of the defendant no.6, the petitioners no.1 herein, whereas they have no title over the disputed property inasmuch as, the said property does not find mention in the list of the property of then Jagirdar issued by the Jagir Commissioner vide order dated 20.11.1959. 3. During the pendency of the petition, the petitioners filed an application under Order 7, Rule 11 CPC, seeking rejection of the plaint on the ground that the disputed property is the personal property of the defendant no.7 & 8 which has been sold to the defendant no.6 and thus, no cause of action accrues to the plaintiff in respect of the property in question. That apart, it was contended that without there being any relief claimed for declaring the sale deed executed as illegal, the suit as framed is not maintainable. The objection was also raised regarding the valuation of the property, stating that the value of the property is Rs.3 lacs as per the sale deed executed by the defendant no.7 & 8 in favour of respondent no.6 and therefore, the suit filed on deficient court fees deserves to be rejected. 4. After due consideration, the application preferred has been rejected by the court below observing that the suit filed for injunction without there being the relief of declaration in respect of the sale deed has been correctly valued and cannot be said to have been filed on deficient court fees.
4. After due consideration, the application preferred has been rejected by the court below observing that the suit filed for injunction without there being the relief of declaration in respect of the sale deed has been correctly valued and cannot be said to have been filed on deficient court fees. The court observed that while deciding the application preferred under Order 7, Rule 11, the court is required to look into the averments made in the plaint and since it is specifically mentioned that the disputed property is not owned by the defendant no. 7 & 8 rather, it is government property, being not included in the list of the properties of erstwhile jagirdar and thus, the suit filed seeking mandatory injunction and permanent injunction on the valuation made, cannot be rejected. 5. Learned counsel appearing for the petitioners contended that the court below has not considered the contention of the petitioners that the suit for permanent injunction preferred without seeking decree of cancellation of sale deed is not maintainable. Learned counsel submitted that the plaint clearly recites that the property vests in the petitioner Rajeshwar Singh by virtue of sale deed executed in his favour by the petitioners no.2 & 3 herein and thus, without challenge to the registered sale deed, the suit is not maintainable. Learned counsel submitted that the suit was filed for a property which was purchased by the petitioner no.1 for a consideration of Rs.3 lacs and therefore, the court below has no pecuniary jurisdiction to entertain the suit and that apart, the court fees paid by the plaintiff is also not adequate. Learned counsel would submit that ignoring this aspect of the matter, the court below has seriously erred in rejecting the application. 6. I have considered the submissions of the learned counsel and perused the material on record. 7. It is settled law that while deciding an application for rejection of the plaint under Order 7, Rule 11 (d), the court is not competent to go into correctness or otherwise of the allegations contained in the plaint. The plaint can only be rejected if from bare perusal of the statement in the plaint without any addition or subtraction it appears to be barred by law. 8.
The plaint can only be rejected if from bare perusal of the statement in the plaint without any addition or subtraction it appears to be barred by law. 8. Indisputably, in the instant case, the suit seeking permanent and mandatory injunction has been filed by the plaintiffs with the specific averments that the property in question is protected ancient and historical archaeological building under the Act of 1961, which was never included in the list of personal properties of erstwhile jagirdar remains the property of the State Government. It is true that there is a reference of the sale deed being executed by the petitioner no.2 & 3 herein in favour of the petitioner no.1 in respect of the disputed property in the plaint, but, it is specifically averred therein that the petitioner no.2 & 3 herein had no title over the property in question and therefore, on the strength of the sale deed, no title is created in favour of the petitioner no.1 herein. In the considered opinion of this court, the question regarding the title of the petitioners herein over the property in question remains a contentious issue between the parties and the same has to be determined by the court below after framing the issues on the basis of the evidence to be led by the parties. Obviously, if the title of the petitioners herein is established, the consequences will follow. But in any case, from bare perusal of the plaint, it cannot be said that the suit as framed does not disclose cause of action or is barred by law. Since the suit has been filed seeking mandatory and permanent injunction and there is no relief for cancellation of the sale deed is incorporated therein, the valuation of the suit made does not appear to be deficit. In any case, the petitioners have already filed written statement, taking objection in this regard as well and thus, obviously, the contentious issue shall be determined by the court below after framing the issues in accordance with law. 9. Needless to say that if the suit can be disposed of on an issue of law only, it is always open for the petitioners to make a prayer to the court to try that issue as preliminary issue in terms of provisions of Order 14, Rule 2 CPC. 10.
9. Needless to say that if the suit can be disposed of on an issue of law only, it is always open for the petitioners to make a prayer to the court to try that issue as preliminary issue in terms of provisions of Order 14, Rule 2 CPC. 10. No case for interference by this court in exercise of its revisional jurisdiction is made out. 11. The revision petition is therefore, dismissed.