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2017 DIGILAW 2452 (RAJ)

Surendra Kumar v. Poolwanti Devi

2017-11-07

VIRENDRA KUMAR MATHUR

body2017
JUDGMENT Virendra Kumar Mathur, J. - This Civil First Appeal under section 96 CPC has been filed against judgment & decree dated 07.01.2017 in Civil Suit No.371/2015 (55/2001) { Suresh Kumar & ors. vs. Phoolwanti Devi & ors), whereby the suit was rejected on ground of jurisdiction. Briefly stated, the appellants preferred a suit for declaration and cancellation of sale deed as well as injunction with respect to Hindu Joint Family property. It was also alleged in the plaint that the appellants and respondent No.1 were members of Joint Hindu Family of Munna Lal and during his lifetime, partition of the properties never took place. It was also alleged that Munna Lal during his lifetime purchased various properties in the name of husband of respondent No.1 Jawahar Lal as well as in the name of respondent No.1 herself, which were acquired from income of Munna Lalji. The properties so acquired by Munna Lalji were described in para 4 of the plaint. 2. It was also alleged in the plaint that the properties described in khasra No.7/18 were never made demarcation and these are adjacent to khasra No.7/19, which is apparent from mauka report dated 07.02.1999. It was also stated that on 20.11.1994, by means of family arrangement, the respondent No.1 had agreed that properties in khasra No.7/18 shall form part of the Joint Hindu Family properties. 3. It was also stated that the respondent No.1, during lifetime of her husband and after his death, never intended to support the joint family and after the death of her husband Jawahar Lalji, she separated herself from the Joint Hindu Family in the year 1995. On 29.09.1998, the respondent No.1 sold 25 bighas land situated at khasra No.7/18 for Rs. 2,50,000/- to the respondents No.2 and 3, which could not have been done, for the same being forming part of the Joint Hindu Family properties. It was further stated that half portion of khasra No.7/18 belongs to Rupi Devi, mother of appellant No.1 and the remaining portion was of respondent No.1. The Sale Deed in question was never executed by proper means and the same was questioned by appellants on various grounds. 4. It was further stated that half portion of khasra No.7/18 belongs to Rupi Devi, mother of appellant No.1 and the remaining portion was of respondent No.1. The Sale Deed in question was never executed by proper means and the same was questioned by appellants on various grounds. 4. It was also stated in the plaint that a revenue suit by Rupi Devi with respect to possession was preferred, in which various reports were called and as apparent from the reports so annexed with the plaint, the respondent No.1 was never in possession of the land in question. It was with these averments that the plaint was filed, with the prayer that the property may be declared as Joint Hindu Family property and consequently, equal shares at the instance of members of the Joint Hindu Family may be declared and further, the sale deed dated 29.09.1998 may be cancelled and injunction be issued against respondents. 5. The respondent No.1 preferred a counter-claim to the suit while the respondents No.2 and 3 filed a joint reply. In the counter-claim filed by the respondent No.1, it was averred that the property has not been partitioned. The respondent No.1 also stated that the properties at Points No.3 & 4 were not property of the Joint Hindu Family and those were purchased out of the income in her name as well as in the name of her husband, at the instance of her parents. It was also averred that the properties described at Points No.1, 2 & 5 were property of the Joint Hindu Family and therefore, the respondent No.1 also has a right to seek partition with respect to same, while denying other averments made in the plaint. 6. It was further averred in the counter-claim that it was at the instance of appellant Surendra Kumar, who insisted upon respondent No.1 to adopt his son, the present suit has been filed. The property comprising in khasra No.7/18 was property of respondent No.1 and the family arrangement dated 20.11.1994 was never accepted by the respondent No.1 and it was not a registered document. It was stated that after death of mother of the appellant Smt Rupi Devi, 1/3rd share of Rupi Devi merely was acquired by the respondent No.1 and consequently, she had 1/3rd share in the property and she had complete right to sale the property, as being owner. 7. It was stated that after death of mother of the appellant Smt Rupi Devi, 1/3rd share of Rupi Devi merely was acquired by the respondent No.1 and consequently, she had 1/3rd share in the property and she had complete right to sale the property, as being owner. 7. It was also stated in the counter-claim that the remaining members of the family had ''/ 3 rd share each in the property and while stating of her share, further properties that form part of the Joint Hindu Family were also brought forward, which were described. In the counter-claim, total 11 different properties were described along with aforementioned properties, as part of the Joint Hindu Family property and it was prayed that all the gains as well as profits may also be divided into shares of 1/3 It was with this effect that the counter-claim was filed praying that the movable as well as immovable properties may be divided in the shares of 1/3. 8. The appellants herein contested the counter-claim while denying contents of the counter-claim and stated that the family arrangement so drawn was accepted by the respondent No.1 and therefore, the properties so described by the respondent No.1 could not be brought by means of counter-claim in a suit for partition. The properties described in the family arrangement only formed part of the Joint Hindu Family property and individual description of properties made in the counter-claim, came into ownership of appellant No.1 and appellant No.2 by means of Will of their mother Rupi Devi and now after the family arrangement, the same can not be refused by the respondent No.1. The counter-claim was alleged to be based completely on imaginary grounds and it was contended that she has not approached the court with clean hands, as she has already sold the property described as khasra No.785 before filing of counter-claim. 9. A rejoinder was also filed by the respondent No.1. An application under Order 39 rules 1 & 2 CPC was also filed by appellants along with the plaint and the learned trial court granted interim order on 06.02.2006, directing to maintain status quo with regarding to suit property. 10. It was also mentioned that even thereafter certain sale deeds were entered into with respect to property in question, inasmuch as 7 Contempt Petitions are pending before various courts at Pali. 11. 10. It was also mentioned that even thereafter certain sale deeds were entered into with respect to property in question, inasmuch as 7 Contempt Petitions are pending before various courts at Pali. 11. In reply to the plaint after amendment, the respondents No.6, 7 & 8 preferred their written statement, stating that the respondent No.1 had legal right in selling the property in question, as the property was not Joint Hindu Family property, they are bona fide purchasers of the property and the respondent No.7 as well as respondent No.8 had 3/10 share in the property, for which sale consideration has been provided to the respondent No.1. The respondent No.6 had 2 / 5 share in the property, for which the consideration was properly given and therefore, the sale deed in question were apparently valid and consequently, the suit deserves to be dismissed. 12. The respondent No.9 also filed separate written statement. 13. On the basis of pleadings of the parties, the trial court framed 14 issues. The trial court decided issue No.2 with respect to jurisdiction as preliminary issue. Arguments were heard and thereafter, judgment & decree dated 07.01.2017 was passed dismissing the suit. 14. Aggrieved by the judgment & decree dated 07.01.2017, the appellants have preferred this appeal on the grounds, inter alia, that the trial court has exceeded in its jurisdiction while dismissing suit of the appellants. Once, after hearing on the issue of jurisdiction, the trial court has arrived at a finding that the jurisdiction with respect to suit can not be exercised by it then proceeding further for discussing the case on merits and dismissing the suit is not permissible under any proposition of law, hence, the impugned order deserves to be set aside. 15. It was also alleged that if the trial court had arrived at a conclusion that the jurisdiction does not vest in it under powers of section 9 CPC then it could have either returned the plaint for presentation before court of competent jurisdiction or even referred the matter on the issue regarding tenancy rights under section 242 of the Rajasthan Tenancy Act. However, no such power has been exercised by the trial court and the trial court directly proceeded to dismiss the suit on merits, which could not have been done in absence of jurisdiction. 16. However, no such power has been exercised by the trial court and the trial court directly proceeded to dismiss the suit on merits, which could not have been done in absence of jurisdiction. 16. It was also contended that the trial court has relied on nature of the land, which can not be sole ground for determination of jurisdiction. It is averment in the plaint along with relevant documents that is to be examined for determining nature of the suit and therefore, the findings so arrived that the suit being pertaining to revenue land is not maintainable in civil court, is contrary to law. 17. The appellant submitted that the plaint as has been filed before the trial court bears nature of civil suit, which can most appropriately be decided by a civil court. This is apparent from reading of the plaint that right, that is sought to be challenged, is infringement of civil rights in the joint family property and therefore, said right can only be decided by a civil court and hence, the impugned judgment & decree is liable to be quashed and set aside. 18. In the context of allegations put forth by the appellants, perused the pleadings and relief sought in the suit filed by appellants as well as the judgment under appeal. 19. In the present appeal, the trial court on the basis of pleadings of the parties framed as many as 19 issues and two additional issues. The trial court decided issue No.10 relating to jurisdiction of the court as preliminary issue and gave judgment only on the basis of findings on issue No.10. The trial court decided this issue in two parts viz. issue No.10(ka) whether the suit land was agriculture land and therefore, this court has no jurisdiction?, and the other part, issue No.10(kha) if yes, then whether the plaint should be returned or dismissed? The trial court decided this issue in two parts viz. issue No.10(ka) whether the suit land was agriculture land and therefore, this court has no jurisdiction?, and the other part, issue No.10(kha) if yes, then whether the plaint should be returned or dismissed? From perusal of the pleadings, it is evident that the suit was with respect to agriculture land mentioned in para 4, in which 5 agriculture lands only were mentioned and out of that, the property mentioned at serial No.3 agriculture land was purchased on 30.01.1983 by Smt Phoolwanti, which was sold by her, being khatedar of that land and the land mentioned at serial No.4, which was also agriculture land, was purchased by her husband Jawahar Lal on 28.04.1981 and after his death, khatedari therein devolved in the name of Smt Phoolwanti and this land also was sold by her as khatedar. The other defendants No.2, 3, 6 & 9 are subsequent purchasers of these lands. 20. Main relief claimed in the plaint was that all the properties shown in the suit were purchased by the HUF established by Munna Lal Lodha, all the heirs of Munna Lal Lodha were members of this HUF, the properties of the HUF were never partitioned and the HUF exists even today. It was claimed in the plaint that the properties were purchased by the HUF, therefore, rights of plaintiffs and defendant No.1 are equal and sought declaration of such rights. Consequently, also sought cancellation of the sale deeds executed by Smt Phoolwanti for the properties at serial Nos.3 & 4 by showing herself as khatedar. 21. On behalf of the respondents, it was argued that the plaintiffs claimed relief in respect of agriculture land and as per sections 88 & 202 of the Rajasthan Land Revenue Act, the suit can be tried by revenue court only. Defendant No.1 Smt Phoolwanti has executed sale deeds under khatedari rights, which existed in her name and those sale deeds can not be cancelled unless it is proved that Smt Phoolwanti was not the only khatedar but was joint khatedar and hence, the relief of cancellation of sale deeds was ancillary relief. 22. Defendant No.1 Smt Phoolwanti has executed sale deeds under khatedari rights, which existed in her name and those sale deeds can not be cancelled unless it is proved that Smt Phoolwanti was not the only khatedar but was joint khatedar and hence, the relief of cancellation of sale deeds was ancillary relief. 22. Learned counsel for the appellants placed reliance on judgment of this Court in Shyam Kumar vs. Budh Singh: AIR 1977 Raj 238 , wherein it was observed: "It is well settled that the question of jurisdiction namely, whether; a suit is exclusively triable by a revenue court or a civil court can take cognizance of it has to be decided on the allegations made in the plaint. It is also further settled that it is the substance of the plaint and the true nature of the suit that is to be seen to determine the question of jurisdiction. If in substance the relief claimed is one which the revenue courts alone are entitled to give the jurisdiction of the civil courts will be ousted even though it may require the revenue court to incidentally determine some ancillary facts" 23. In Khema vs. Bhagwan: AIR 1995 Raj 94 , this Court held as follows: "relief for cancellation of three registered sale deeds is the main relief which cannot be granted by Revenue Courts and other reliefs sought in the present suit are ancillary reliefs. Such intricate questions of cancellation of sale deeds are to be decided by judicially trained mind of civil Courts and cannot be left to be decided by Revenue Courts which are obviously not well acquainted to try such intricate questions of law.....a suit for cancellation of sale deeds is exclusively triable by Civil Court and the other reliefs sought by the plaintiff are ancillary reliefs." In Smt Brijbala vs. Additional District Judge & ors: AIR 2013 (NOC) 255 (All), it was held: "where the name of a party is entered in the revenue record and a suit is for cancellation of a sale deed executed in favour of another person, then the name of the person which finds entry in the revenue record, can file a civil suit for cancellation of the sale deed, and such a person need not approach the revenue court for declaration. It is only where the revenue entry is sought to be varied, in the absence of any entry in favour of the plaintiff, that the suit has to be filed before the revenue court." 24. In Rajendra Kumbhat & ors. vs. Devi & ors.: 2015 (2) WLN 326 while considering provisions of section 207 of the Rajasthan Tenancy Act it was observed: "A perusal of sub-section (2) of Section 207 of the Act of 1955 makes it amply clear that only those suits triable by the revenue court specified in the third schedule of the Act are barred before any other court except the revenue court. If Section 207 is read in conjunction with Third Schedule, then it would ipso facto reveal that in Third Schedule of the Act of 1955, there is no mention about a suit for cancellation of a registered instrument. Therefore, on the face of it, invocation of Section 207 of the Act of 1955 by the petitioners is misplaced and it cannot be said that suit for cancellation of a registered instrument is barred before a civil court within the four corners of Section 207 of the Act of 1955." It was further observed: "Hon''ble Apex Court summarized the guidelines vis-a-vis jurisdiction of civil Court to try a suit. The guidelines are as under: (1) Where the statute gives a finality to the orders of the special tribunals the civil court''s jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply." 25. The counsel for the respondents, on the other hand, has cited judgments based on jurisdiction of revenue courts in respect of agriculture properties. 26. In view of aforesaid settled position of law, the substance of the suit i.e. whether properties mentioned in the suit were property of HUF established by Munna Lal Lodha and hence, Smt Phoolwanti alone could not have sold the properties at Sr. No.3 & 4 as sole khatedar, irrespective of the properties were agriculture land, require inquiry by the civil court. No.3 & 4 as sole khatedar, irrespective of the properties were agriculture land, require inquiry by the civil court. In view of core contention of appellant-plaintiffs that the properties were purchased by the HUF, therefore, rights of plaintiffs and defendant No.1 are equal and sought declaration of such rights in the HUF property, subject matter of claim of partition being agriculture land is only an ancillary aspect. It cannot be said that suit for cancellation of a registered instrument is barred before a civil court, merely because it pertains to agriculture land. 27. In view of aforementioned position of law in the facts & circumstances of the controversy involved in the suit, the trial court erred in dismissing the suit on merits after recording finding on question of jurisdiction. The findings of the trial court on issue No.10 regarding jurisdiction is liable to be set aside. 28. Hence, the appeal is allowed. The findings of the trial court on issue No.10 is set aside. The impugned judgment & decree dated 07.01.2017 dismissing the suit is also quashed and set aside. The matter is remanded to the trial court for decision of the suit afresh, after adjudication on remaining issues on merits.