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2018 DIGILAW 1687 (RAJ)

Jhamku v. Devi Lal

2018-08-09

ARUN BHANSALI

body2018
JUDGMENT Arun Bhansali, J. This revision petition is directed against the order dated 9/12/2016 passed by the Addl. District Judge No.4, Udaipur, whereby, the application filed by the petitioner under Order VII Rule 11 CPC has been rejected. 2. The suit was filed by the plaintiff seeking cancellation of sale deed, declaration and injunction pertaining to the land ad measuring 63 Bigha 17 Biswa situated at village Khalatod. In the plaint two reliefs were sought: (i) cancellation of sale deed executed by defendant no.1 in favour of defendant no.2 and (ii) declaration in the name of plaintiff and permanent injunction. The application was filed by the petitioner under Order VII Rule 11 CPC on the ground that as the suit pertains to agriculture land, the same was barred under the provisions of Section 207 of the Rajasthan Tenancy Act, 1955 ('the Act, 1955'). 3. The application was resisted by the plaintiff. It was inter alia indicated that though the suit pertains to agriculture land, the nature of dispute is such which can only be decided by the civil court. Submissions were also made that the suit was based on the Will executed in favour of the plaintiff and it is within the jurisdiction of civil court only to adjudicate on the validity of the Will and, therefore, the application was liable to be dismissed. The trial court after hearing the parties came to the conclusion that as the suit has been filed seeking cancellation of sale deed based on the Will, the said relief can only be granted by the civil court and consequently rejected the application. It is submitted by learned counsel for the petitioner that the trial court fell in error in coming to the conclusion that the suit was triable by civil court and, therefore, order impugned deserves to be quashed and set aside. It is submitted by learned counsel for the petitioner that the trial court fell in error in coming to the conclusion that the suit was triable by civil court and, therefore, order impugned deserves to be quashed and set aside. It is submitted that a bare reading of the plaint would indicate that the plaintiff wanted a declaration pertaining to the ownership of the land based on the alleged Will in his favour and said declaration could very well be granted by the revenue court and the relief regarding cancellation of sale deed was merely a consequential relief, therefore, the suit could only be maintained before the revenue court and as the filing of the suit before the civil court is barred under Section 207 of the Act, 1955, the order impugned deserves to be set aside. Reliance was placed on Kulveer Singh & Anr. vs. Board of Revenue, Ajmer : S.B.Civil Writ Petition No.2751/2015 decided on 22/4/2015. 4. I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record. 5. The suit is pending before the civil court since the year 2012; the petitioner had already filed his written statement denying the execution of Will and alleging the same as fraudulent & concocted and, therefore, the issue no.3 in this regard was framed by the trial court, whereafter, the present application has been filed by the petitioner seeking dismissal of the suit being barred by the provisions of law, under Order VII Rule 11 (d) CPC. 6. Though written statement has been filed and issues have been framed, learned counsel for the petitioner insisted that only plaint needs to be read and the fact that petitioner in his written statement questioned the validity of the Will cannot be looked into while deciding the application under Order VII Rule 11 CPC. Said submission made by learned counsel for the petitioner would have had substance in case the application was filed at an appropriate stage i.e. before filing of the written statement/framing of issues. Said submission made by learned counsel for the petitioner would have had substance in case the application was filed at an appropriate stage i.e. before filing of the written statement/framing of issues. It is not in dispute that the application under Order VII Rule 11 CPC can be filed at any stage of the suit, however, while deciding the said application the court cannot be oblivious of the grounds, reliefs and the stand taken by the defendant in his written statement in case the written statement has already been filed/issues have been framed in a matter. As now the stand of the petitioner pertaining to the Will relied on by the plaintiff is explicitly clear, wherein, he has questioned the validity of the Will on several grounds, the validity of the Will needs to be adjudicated in the present suit and jurisdiction pertaining to validity of the Will ex facie lies with the civil court and the revenue court cannot adjudicate the validity of the Will. 7. In Vimal Kumar Jain vs. Mahaveer Prasad Jain : Civil Revision No. 18/2005 decided on 17/10/2005 at Jaipur Bench it was laid down that qua validity of the Will a declaration can only be granted by the civil court and not by the revenue court and unless the validity of the Will is adjudicated, ancillary relief pertaining to sale deed also cannot be granted by the revenue court and, therefore, bar under Section 207 of the Act, 1955 would not be attracted. 8. So far as the judgment in the case of Kulveer Singh is concerned, in the said case the revenue court on coming to the conclusion that the Will was not proved based on the cross examination of the propounder and noticing the suspicious circumstances came to the conclusion that defense was baseless, it was held that the revenue court was justified in decreeing the suit. The said judgment cannot come to the aid of petitioner as the issue as to whether the suit was barred under Section 207 of the Act of 1955 and/or the issue relating to Will should have been referred to civil court under Section 242 of the Act was not in question. 9. In view of the above discussion, the order impugned passed by the trial court does not call for interference. There is no substance in the revision petition and the same is, therefore, dismissed.