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2021 DIGILAW 91 (RAJ)

Tejaswin v. Lrs Of Bhanwar Puri

2021-01-13

ARUN BHANSALI

body2021
JUDGMENT 1. Though, the matter has come up for orders on stay application. At the request of learned counsel for the parties, they have been finally heard as record of the trial court has already been received. 2. This appeal is directed against the judgment dated 01.04.2019 passed by the trial court, whereby the suit filed by the appellants for cancellation of sale deed and partition has been held to be premature, qua one relief and therefore, the suit has been dismissed with liberty to file a fresh suit qua other relief. 3. The suit was filed by the plaintiffs, inter-alia, with the submissions that the agriculture land situated at Badgaon, Tehsil Shivganj, District Sirohi was ancestral property; a revenue suit seeking declaration of tenancy rights and partition was pending before the SDO, Shivganj, however, as the said suit was dismissed for non-prosecution, the defendant No.1 Bhanwar Puri (since deceased) executed sale deed in favour of defendant No.2, which was void, as such, the sale deed be cancelled and the land be partitioned by metes and bounds. 4. Further submissions have been made that a house was situated at Subhash Nagar, which was also joint family property and the plaintiffs were entitled for its partition. 5. After the written statement was filed by the defendant Nos. 1 to 5 & 7, an application under Order VII, Rule 10 CPC was filed by the defendant No.6, inter-alia, claiming that qua the agricultural land the suit seeking declaration of khatedari rights was already pending before the revenue court and therefore, the plaint be returned. 6. The application was contested by the plaintiffs, inter-alia, claiming that the reliefs claimed in both the suits were different and therefore, the application be dismissed. 7. The trial court, by its impugned order dated 01.04.2019, came to the conclusion that the cancellation of the sale deed can only take place after the khatedari rights of the plaintiffs were declared and based on the said determination came to the conclusion that the suit seeking cancellation of the sale deed was premature and therefore, ordered that as the plaintiffs have clubbed two different / separate reliefs, dismissed the suit giving liberty to the plaintiffs to file a fresh suit seeking partition of the residential property. 8. 8. Learned counsel for the appellants made submissions that the trial court was not justified in dismissing the suit on an application filed under Order VII, Rule 10 CPC. 9. Submissions were made that even qua the agriculture land regarding which the sale deed has been executed against the interests of the plaintiffs, the suit was maintainable before the Civil Court and that the trial court has gone beyond its jurisdiction in dismissing the suit and granting liberty to file a fresh suit qua the residential property. 10. Learned counsel appearing for the respondents made submissions that once the suit filed by the plaintiffs was pending before the revenue court regarding declaration of khatedari rights, there was no reason for filing a fresh suit and the trial court was, therefore, justified in dismissing the suit giving liberty to file a fresh suit, qua the residential property and therefore, the order impugned does not call for any interference. 11. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 12. A bare look at the plaint averments indicate that the case of the plaintiffs was that the transfer deed executed by the defendant No.1 Bhanwar Puri (since deceased) of the ancestral agricultural land, was void and a declaration in this regard was sought. 13. This Court in Hasti Cement Pvt. Ltd., Jodhpur & Anr. v. Sandeep Charan & Ors., 2018 (2) DNJ (Raj.) 421 has laid down that a suit seeking cancellation of the sale deed based on the ground that the property in question was ancestral would be maintainable before the civil court. It was, inter-alia, laid down as under: - "25. In view of the above discussion, the present case needs to be examined wherein, as noticed hereinbefore, the declaration has been sought in the plaint seeking cancellation of sale deed to the extent of share of the plaintiff on account of the fact that the suit property being ancestral joint Hindu property the transfer was made without any reason, basis or necessity. 26. 26. On the said aspect, while the judgment in the case of Sangram Singh (supra) laid down that such a sale would be void and, therefore, the suit would be triable by revenue court only, in later judgment in the case of Bhopal Singh (supra) it was laid down that such a sale would be voidable and not void. For the said proposition, reliance was placed on the judgment of Hon'ble Supreme Court in the case of Raghubanchmani (supra) and a unreported judgment in the case of Longram vs. Jaipal Singh : Civil Revision Petition No.153/1971 decided on 29/7/1971, taking different view was held as not a good law in view of the Supreme Court judgment, for the same reasons the judgment in the case of Sangram Singh (supra) also cannot be said to be a good law though the judgment in the case of Sangram Singh was not cited in the case of Bhopal Singh (supra). Relevant portion of the judgment dealing with the said aspect reads as under: "13. In view of the decision in Raghubanchamani's case AIR 1971 SC 776 , the sale-deed made by the plaintiff's father, who is defendant No. 5, in favour of the defendants Nos. 1 and 4 (petitioners) is voidable as according to the plaintiff it was without legal necessity and under Section 31(1) of the Specific Relief Act, when the plaintiff has reasonable apprehension that the sale-deed if left outstanding, may cause him serious injury, it became necessary for him to have it adjudged, void or voidable. The cancellation of the sale-deed, being the main relief in the suit, can only be granted by a Civil Court. Learned counsel for the petitioners cannot, in my opinion, derive any benefit from the decision in Jagansingh's case 1973 Raj LW 674. In Longram's case Civil Revn. No. 153 of 1971, D/- 29-7-1971 Raj) (supra) the learned Judge took the view that the sale by the father of undivided coparcenary property is void in the absence of the legal necessity and the prayer for cancellation of the sale-deed is not very material, and further that the suit was essentially for possession of agricultural land. The sale by the father of the plaintiff in the case before me is voidable according to the decision in Raghubanchamani's case AIR 1971 SC 776 . The sale by the father of the plaintiff in the case before me is voidable according to the decision in Raghubanchamani's case AIR 1971 SC 776 . I regret my inability to agree with the view taken in Longram's case and it is no more a good law after Raghubanchamani's case." In view of the above, the law laid down in the case of Bhopal Singh (supra) holding the instrument of the present nature as voidable, suit apparently is maintainable before the civil court and in view thereof the order passed by the trial court cannot be faulted." 14. In view thereof, the finding of the trial court that the suit was not maintainable before the civil court, qua the agriculture land, wherein cancellation was sought on account of the sale deed being voidable, cannot be sustained. 15. The trial court, though found the suit for partition of the residential property maintainable before the civil court, dismissed the entire suit with liberty to file a fresh suit qua the residential property and as such, once the finding regarding the agriculture land has been reversed, the entire suit is required to be restored back before the civil court. 16. Consequently, the appeal filed by the appellants is allowed. The order dated 01.04.2019 passed by the Family Court, Sirohi is set-aside. The matter is remanded back to the trial court for proceedings with the matter from the stage, the suit was dismissed. 17. The record be sent back immediately.