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2017 DIGILAW 461 (RAJ)

KHOOB LAL v. MAHAVEER PRASAD

2017-02-08

PANKAJ BHANDARI

body2017
JUDGMENT : PANKAJ BHANDARI, J. 1. The petitioners have moved this revision petition aggrieved by order dated 24.10.2016, vide which the application filed by the petitioner under Order 7, Rule 11 CPC has been rejected. 2. It is contended by counsel for the petitioners/defendants that in the earlier litigation filed by the petitioners, which was a suit for declaration of the khatedari rights, their suit was decreed and the appeal filed by the plaintiffs-Mahaveer and Naval Kishore was allowed. The second appeal preferred by the petitioners was dismissed by the Board of Revenue, against which a writ petition was preferred by the petitioners, which was allowed and the suit was decreed. The appeal preferred before the Division Bench against the said order was also dismissed and the order was upheld upto the Hon'ble Supreme Court. 3. It is also contended by counsel for the petitioners that in the earlier litigation, the learned Single Judge observed that the proper remedy for the appellants (plaintiffs in the case) was to approach the civil court for the purpose of establishing their easementary rights. 4. It is further contended by counsel for the petitioners that the plaint has been cleverly drafted, so as to negate the earlier judgment. 5. The attention of this Court has been drawn to para 4 of the plaint, wherein the plaintiffs have mentioned that they re not challenging the property rights of the defendants with relation to part of khasra No.59 and 61, and they are claiming their rights only to the extent of a patta issued by the erstwhile Sirohi State. 6. It is also contended by counsel for the petitioners that the plaintiffs have wrongly mentioned that the court permitted them to file a suit for claiming their property rights, whereas they were permitted to file a suit for establishing their easementary rights. 7. In support of his contentions counsel for the petitioners has placed reliance on Temple of Thakur Shri Mathuradassji, Chhota Bhandar v. Shri Kanhaiyalal & Ors., 2008(2) RLW 1390 (Raj.), Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas & Anr., AIR 2008 SC 2187 and T. Arivandandam v. T.V. Satyapal & Anr, AIR 1977 SC 2421 . 8. I have considered the contentions of counsel for the petitioners and have also perused the plaint in its entirety and the impugned order. 9. 8. I have considered the contentions of counsel for the petitioners and have also perused the plaint in its entirety and the impugned order. 9. The initial suit, which was filed by the petitioners, was not filed against the present plaintiffs and it is only by leave of the court that they were permitted to file an appeal, and ultimately, that suit was decreed. The plaintiffs in this case are claiming injunction on the basis of the patta issued to them by the erstwhile Sirohi State. The ultimate relief claimed in the plaint is also pertaining to plot No.5 and the patta issued by the erstwhile Sirohi State and the relief claimed is that the defendants be restrained from dispossessing the plaintiffs and from creating hindrance in their enjoyment of the property. 10. In the earlier suit, the relief claimed was pertaining to khasra No.59 and 61 and the declaration has also been granted with relation to the khatedari rights of khasra No.59 and 61. The present suit pertains to plot No. 5 and as to what will be the impact of the earlier decree, is to be seen by the court after the written statement is filed. 11. Since the plaintiffs were permitted by the High Court to file a suit, now at this stage, it cannot be considered on perusal of the plaint that the plaint is barred by Order 7, Rule 11 CPC, and therefore, the judgments relied upon by counsel for the petitioners do not have applicability to the facts of this case. Thus, the court below has not committed any illegality in passing the impugned order. 12. Consequently, the present revision petition is dismissed. The stay application also stands disposed.