Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 2032 (RAJ)

Vipin Jangid Brahmin v. Mahendra Jangid

2018-10-03

ASHOK KUMAR GAUR

body2018
JUDGMENT : ASHOK KUMAR GAUR, J. The instant petition has been filed by the petitioner challenging order dt.26.09.2017 passed by the Board of Revenue whereby the revision petition filed by the private-respondent has been allowed and order of the Additional Collector, Sikar dt.02.08.2016 has been set aside. 2. Brief facts are that the petitioner had filed a suit for declaration, partition and permanent injunction under Section 88, 183 & 288 of the Rajasthan Tenancy Act, 1956 and Section 136 of the Land Revenue Act, 1956. 3. The respondents during pendency of suit filed an application under Order 7 Rule 11 CPC. It was pleaded on their behalf that suit filed by the petitioner may be dismissed. It was pleaded that father of the petitioner had already filed a suit which was dismissed on 24.06.2016 and further the relinquish deed was also executed on 08.11.2006 in favour of brother of the petitioner-Shankarlal. The application further made a mention that since the petitioner had relinquished his rights, there was no cause of action in the suit and as such in absence of cause of action, the suit was liable to be dismissed. 4. The Court of Additional Collector, Sikar, after hearing both the parties, dismissed the application filed by the respondent under Order 7 Rule 11 CPC The said Court recorded a finding that the suit filed by the petitioner was in respect of declaration, partition and permanent injunction and as such for claiming these rights suit was not barred by any law. The Court further observed that grant of relief in the suit was to be considered after taking evidence of both the parties and after affording proper opportunity to both the parties. 5. The respondents feeling aggrieved against the order dt.02.08.2016, filed revision petition under Section 230 of the Rajasthan Tenancy Act, 1955. The Board of Revenue vide order dt.26.09.2016 has allowed the application of the respondents and suit as such has been dismissed. The Board of Revenue has recorded in its order that father of the petitioner has already filed second appeal No. 2127/2016 before the Board of Revenue and the same is still pending. The Board of Revenue further recorded a finding that after decision of the appeal of the father of the petitioner, rights of the parties will be decided and the parties were free to bring fresh suit after decision of the second appeal. 6. Mr. The Board of Revenue further recorded a finding that after decision of the appeal of the father of the petitioner, rights of the parties will be decided and the parties were free to bring fresh suit after decision of the second appeal. 6. Mr. Anoop Dhand, counsel for the petitioner has submitted that application under Order 7 Rule 11 CPC has wrongly been decided by the Board of Revenue. Learned counsel has submitted that application itself was not maintainable as the case of the respondents did not fall in any of exceptions/provisions which have been given under Order 7 Rule 11 CPC for rejection of plaint. Learned counsel has submitted that the suit filed by the petitioner discloses cause of action and as such it could not be held that suit was not maintainable. Learned counsel has further submitted that filing of appeal by father of the petitioner before the Board of Revenue, has no concern with the present suit, where the petitioner claimed his right independently. 7. Per contra, Mr. U.P. Gaur, counsel for the respondents has submitted that application No. 71693/2018 has been filed in the writ petition for dismissal of writ petition as the same has become infructuous on account of suit filed by the petitioner is pending before the competent Court i.e. Senior Civil Judge, Dataramgarh, District Sikar where the relinquish deed dt.08.11.2006 is challenged. 8. Learned counsel has submitted that once the basis of suit is relinquish deed dt.08.11.2006 and the same being challenged in Civil Court, the present writ petition itself has become infructuous. Learned counsel has submitted that the prayer sought in the writ petition for quashing the relinquish deed cannot be granted and it is the jurisdiction of Civil Court which can alone pass the appropriate order. Learned counsel has submitted that two parallel remedy cannot be availed by the petitioner and as such the prayer has been sought to dismiss the writ petition. Learned counsel has submitted that the Board of Revenue has rightly allowed the application filed by the respondents under Order 7 Rule 11 CPC. Learned counsel has submitted that the suit is not only barred by law but further it does not disclose cause of action. Learned counsel has submitted that the Board of Revenue has rightly allowed the application filed by the respondents under Order 7 Rule 11 CPC. Learned counsel has submitted that the suit is not only barred by law but further it does not disclose cause of action. He submitted that once the decree has been passed against the father of the petitioner and the rights have been crystallized, pendency of second appeal before the Board of Revenue, will not give fresh cause of action to the petitioner. He submitted that apart from res-judicata, none of the averments in suit disclose cause of action and as such the Board of Revenue, has not been committed any illegality in passing the order. 9. Learned counsel for the respondents has placed reliance on judgment passed in the case of [Shipping Corporation of India Ltd. v. Machado Brothers] reported in (2004) 11 SCC 168 : AIR 2004 SC 2093 and [Satya Pal Anand v. State of Madhya Pradesh] reported in (2016) 10 SCC 767 . Learned counsel has submitted that writ petition is not appropriate forum to decide the deed which is executed in favour of the somebody and further under Order 7 Rule 11 CPC, the Court has power to dismiss the suit, if does not disclose the cause of action. 10. I have heard counsel for both the parties and perused the material available on record. 11. This Court finds that the petitioner has challenged order dt.26.09.2016 passed by the Board of Revenue exercising power under Section 230 of the Rajasthan Tenancy Act, 1955 while setting aside the order dt.02.08.2016 passed by the Additional Collector, Sikar rejecting the application of the respondents filed under Order 7 Rule 11 CPC. 12. This Court finds that the petitioner in the instant petition has not challenged the relinquish deed, as has been canvassed by learned counsel for the respondents before this Court. 13. This Court finds that the application under Order 7 Rule 11 CPC has been allowed by the Board of Revenue only on the premise that the subordinate Court (Additional Collector) did not pass a reasoned and speaking order. 13. This Court finds that the application under Order 7 Rule 11 CPC has been allowed by the Board of Revenue only on the premise that the subordinate Court (Additional Collector) did not pass a reasoned and speaking order. The Board of Revenue has further been swayed by the fact that the appeal of the father of the petitioner is pending before the Board of Revenue and till date the said appeal has not been decided, hence the suit filed by the petitioner is not maintainable. This Court finds reasoning of the Board of Revenue to be erroneous. The Board of Revenue could not have allowed the application under Order 7 Rule 11 CPC filed by the respondents. The prayer made by the petitioner in the suit is for declaration, partition and permanent injunction as well. 14. The scope of Order 7 Rule 11 CPC for rejection of plaint, is confined, as per learned counsel, where the suit itself does not disclose a cause of action as per clause (a) and as per clause (d) the suit appears from the statement in the plaint, to be barred by any law. 15. This Court finds that perusal of the! prayer made in the suit does not cover the case of the petitioner under Order 7 Rule 11 as per clause (a) and further the suit is not barred by any law under O. 7 R. 11 as per clause (d). 16. The submission of learned counsel for the respondents that the High Court is not appropriate forum to decide the validity of any document/deed, it is Civil Court's alone which have power in this regard, this Court finds that the petitioner has not made prayer in the instant petition for challenging the relinquish deed. 17. Learned counsel for the respondents himself has placed on record copy of the suit which has been filed by the petitioner challenging the relinquish deed in the Court of Additional Collector, Dataramgarh. 18. This Court finds that the judgment cited by counsel for the respondents in the case of Shipping Corporation of India Ltd. v. Machado Brothers, (supra) does not apply in the facts of the case as there is no challenge to the relinquish deed in the instant petition. 18. This Court finds that the judgment cited by counsel for the respondents in the case of Shipping Corporation of India Ltd. v. Machado Brothers, (supra) does not apply in the facts of the case as there is no challenge to the relinquish deed in the instant petition. Learned counsel for the respondents submits that the suit which are rendered infructuous can be brought to notice of the Court due to subsequent events and order can be passed under Order 7 Rule 11 CPC by making application under Sec. 151 CPC. 19. The perusal of the judgment cited of the Apex Court, this Court finds that the Apex Court has held that by subsequent event if the original proceeding has become infructuous, exdebito justitiae, it is the duty of the Court to take such action as is necessary in the interest of justice which includes disposing of infructuous litigation and further it is open to the parties concerned to make an application under Section 151 CPC to bring to the notice of the Court the facts and circumstances which have made the pending litigation infructuous. The proposition laid down by the Hon'ble Supreme Court in respect of filing of application, before the Court to bring to notice of the Court about rendering the suit infructuous and an application under Section 151 CPC can be filed to the same effect. 20. In the instant case, the issue is not with respect to suit of the petitioner becoming infructuous and as such the said judgment is of little assistant to the respondents. 21. This Court finds that the order passed by the Board of Revenue is not legally sustainable and the same is required to be quashed and set aside. 20. Accordingly, the present writ petition is allowed and the order passed by the Board of Revenue dt.26.09.2017 is quashed and set aside.