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2017 DIGILAW 473 (RAJ)

Bhagwana Ram son of Shri Lekhram v. Gurmaje Kaur wife of Late Shri Karm Singh

2017-02-09

PANKAJ BHANDARI

body2017
ORDER : Pankaj Bhandari, J. 1. Petitioner has preferred this revision petition aggrieved by order dated 12.01.2016 passed by Additional District Judge No. 2, Hanumangarh, vide which the court allowed the appeal filed by the respondent plaintiff and held that the civil court has jurisdiction to decide the suit. 2. It is contended by counsel for the petitioner that the learned court below has allowed the appeal only on the ground that the question whether the power of attorney was executed or not and whether Karmjeet Singh through which the plaintiffs are claiming Khatedari rights was alive or not can be decided only by civil court. 3. It is contended by counsel for the petitioner that in the suit, the plaintiff has claimed that he be declared as Khatedar ignoring the sale deed dated 25.11.1993. A further relief is claimed that the entries showing the present petitioner as Khatedars be amended and the plaintiffs be recorded as Khetardars. 4. Counsel for the petitioner has placed reliance on Sangram Singh v. Roop Lal & Ors. WLN (UC) 1977 Page 454, Modu Ram v. Board of Revenue & Ors. 2015(3) WLN 284 (Raj.) and Kamla Prasad & Ors. v. Kishan Kant Pathak & Ors., 2007 (4)Supreme Court Cases 213. 5. It is contended by counsel for the plaintiff-respondent that the suit was triable by the civil court as in the plaint grounds were mentioned as to why the sale deed is void. The relief could only be granted by the civil court and therefore, the appellate court was right in allowing their appeal and directing the civil court to proceed in the suit. 6. I have considered the rival contentions and have also perused the pleadings. The plaint basically is for declaration of the Khatedari rights ignoring the sale deed dated 25.11.1993. The other relief pertains to removal of name of the defendants as Khetadars and recording the name of the plaintiffs as Khetadars, relief relating to injunction is also sought in the suit. 7. It is an admitted position that the petitioners are as on date recorded Khatedar as appearing from the perusal of the plaint. The plaintiff seeks a declaration that the sale deed in favour of the recorded Khetadars be ignored and plaintiff be considered as Khetadars and they be recorded as Khaterdars in place of the petitioners. 8. 7. It is an admitted position that the petitioners are as on date recorded Khatedar as appearing from the perusal of the plaint. The plaintiff seeks a declaration that the sale deed in favour of the recorded Khetadars be ignored and plaintiff be considered as Khetadars and they be recorded as Khaterdars in place of the petitioners. 8. Section 207 of the Rajasthan Tenancy Act provides that the suits of the nature specified in the Third Schedule shall be heard and determined by a Revenue Court and no Court other than a Revenue Court shall take cognizance of any such suit. 9. Serial number 5 of the Third Schedule of the Rajasthan Tenancy Act, provides that cases falling within the purview of Section 88 are to be heard by revenue courts. On the date of filing of the suit, admittedly, the plaintiff was not a Khatedar and he has sought declaration for being declared as a Khatedar, therefore, the revenue court only had jurisdiction to decide the dispute. 10. In Kamla Prasad & Ors. v. Kishan Kant Pathak & Ors. (Supra) the Court observed that the name of plaintiff was deleted from the record of rights and name of purchaser was entered. The Apex Court observed that the revenue court had jurisdiction to decide such dispute. The Court in Para 13 to 16 held as under:- On second question also, in our view, Courts below were right in coming to the conclusion that legality or otherwise of insertion of names of purchasers in Record of Rights and deletion of name of the plaintiff from such record can only be decided by Revenue Court since the names of the purchasers had already been entered into. Only Revenue Court can record a finding whether such an action was in accordance with law or not and it cannot be decided by a Civil Court. In this connection, the learned counsel for the appellant rightly relied upon a decision of this Court in Shri Ram & Anr, v. 1st Addl. Distt. Judge & Ors., (2001) 3 SCC 24 . In Shri Ram, A, the original owner of the land sold it to B by a registered sale deed and also delivered possession and the name of the purchaser was entered into Revenue Records after mutation. According to the plaintiff, sale deed was forged and was liable to be cancelled. Distt. Judge & Ors., (2001) 3 SCC 24 . In Shri Ram, A, the original owner of the land sold it to B by a registered sale deed and also delivered possession and the name of the purchaser was entered into Revenue Records after mutation. According to the plaintiff, sale deed was forged and was liable to be cancelled. In the light of the above fact, this Court held that it was only a Civil Court which could entertain, try and decide such suit. The Court, after considering relevant case law on the point, held that where a recorded tenure holder having a title and in possession of property files a suit in Civil Court for cancellation of sale deed obtained by fraud or impersonation could not be directed to institute such suit for declaration in Revenue Court, the reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land. The Court, however, proceeded to observe: "The position would be different where a person not being a recorded tenure holder seeks cancellation of sale deed by filing a suit in the civil court on the ground of fraud or impersonation. There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the revenue court, as the sale deed being void has to be ignored for giving him relief for declaration and possession". The instant case is covered by the above observations. The lower Appellate Court has expressly stated that the name of the plaintiff had been deleted from Record of Rights and the names of purchasers had been entered. The said fact had been brought on record by the contesting defendants and it was stated that the plaintiff himself appeared as a witness before the Mutation Court, admitted execution of the sale deed, receipt of sale consideration and the factum of putting vendees into possession of the property purchased by them. It was also stated that the records revealed that the names of contesting defendants had been mutated into Record of Rights and the name of plaintiff was deleted. 11. In Modu Ram v. Board of Revenue & Ors. It was also stated that the records revealed that the names of contesting defendants had been mutated into Record of Rights and the name of plaintiff was deleted. 11. In Modu Ram v. Board of Revenue & Ors. (Supra), the Court while dealing with Section 242 of the Rajasthan Tenancy Act observed that where there is a dispute which can be decided only by a revenue court, the civil court shall frame an issue on the plea of tenancy and refer it to the appropriate revenue court for the decision of that issue. 12. Admittedly, Khatedari rights can be determined only by the revenue courts and therefore, the trial court rightly directed the plaintiff to approach the revenue court. The appellate court has on wrong assumptions allowed the appeal. 13. Consequently, the revision petition is allowed and the order of the appellate court is quashed and the order passed by the trial court is upheld.