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2023 DIGILAW 135 (RAJ)

Kailash Chandra Goyal v. Ramesh Chandra Goyal

2023-01-11

NARENDRA SINGH DHADDHA

body2023
ORDER 1. At the request of the learned counsel for the appellant/plaintiff (for short 'the plaintiff'), service of notice upon unserved respondents is dispensed with at the risk of the plaintiff. 2. With the consent of learned counsel for the parties, arguments have been heard and appeal is being decided finally at this stage. 3. The present civil first appeal has been filed against the order dated 29.11.2021 passed by the learned Additional District & Sessions Judge, Sawaimadhopur (for Short 'the trial Court') in Civil Suit No.366/2014 titled as 'Kailash Chandra Goyal Vs. Ramesh Chandra & Ors.', whereby the trial Court has allowed the application filed by the respondents-defendant Nos.1 to 4(for short 'the defendants) under Order 7 Rule 11 CPC and thereby dismissed the suit filed by the plaintiff. 4. Brief facts of the case are that the plaintiff has filed a suit against the defendants for cancellation of sale deeds dated 06.11.1971 and 06.01.1973, correction of the entries in the revenue record and permanent injunction. The plaintiff in his plaint clearly stated that the land mentioned in para No.1 of the plaint (in the revenue records) is in the name of Raghunath Goyal. Shri Narayan and Jagdish Prasad sons of Raghunath Prasad each having half-half share therein. The said land was undivided and in the joint ownership which was not partitioned by metes and bounds. After death of Jagdish Prasad Goyal, Kedar Prasad Goyal conspired with Atmanandpuri, Kalayanpuri and Shivdayalpuri sons of Gulabpuri sold the land mentioned in para No.4 of the plaint through sale deed dated 06.11.1971 and 06.01.1973 by committing forgery and concocting forged signature of late Shri Jagdish Prasad Goyal. Mutation was also opened in the name of the purchaser. Learned counsel for the plaintiff further submits that the written statement was filed by the defendants and issues were framed. Said suit was filed in the year 2003. Defendant Nos.1 to 4 had filed an application under Order 7 Rule 11 CPC on 11.11.2021, which has wrongly been allowed by the learned trial Court vide order dated 29.11.2021. Learned counsel for the plaintiff further submits that the main relief of the plaintiff is that the plaintiff wanted to cancel the sale deeds dated 06.11.1971 and 06.01.1973. Learned counsel for the plaintiff also submits that the sale deed can only be cancelled by the Civil Court. Other relief sought by the plaintiff are ancillary. Learned counsel for the plaintiff further submits that the main relief of the plaintiff is that the plaintiff wanted to cancel the sale deeds dated 06.11.1971 and 06.01.1973. Learned counsel for the plaintiff also submits that the sale deed can only be cancelled by the Civil Court. Other relief sought by the plaintiff are ancillary. Suit filed by the plaintiff is composite suit. Issues have been framed by the learned trial Court after pleading of the parties. Objections which were taken in the application by the defendants could be decided only after leading evidence by the parties in the civil suit. So, order of the learned trial Court be set-aside. 5. Learned counsel for the plaintiff has placed reliance upon the following judgments: (1) Bhagwati Kunwar Vs. Gulab Singh reported in 2019 SCC Online Raj. 2263; (2) Nathu Vs. Bhanwarlal & Ors. reported in (1998) 1 RLW 334; (3) Patrick Simmon & Ors. Vs. Shri Saint Anthony's School Education Association reported in (2015) 2 DNJ (Raj.) 593; (4) Pratapi Vs. Jhamku & Ors. reported in 2013 (3) DNJ (Raj.) 1112; (5) Gurucharansingh vs. Gurdayal Kaur in D.B.C.W.P. No.768/1979 decided on 22.01.1981; (6) Janki Devi Vs. Maniram in SBCFA No.106/1990 decided on 13.02.2000; (7) Bhau Ram Vs. Janak Singh reported in 2012(2) WLC (SC) Civil 254; (8) Ramswaroop Vs. Kesar reported in 2015 WLC (Raj.) UC 563. 6. Learned counsel for the defendant Nos. 1 to 4 has opposed the arguments advanced by learned counsel for the plaintiff and submitted that the learned trial Court has rightly allowed the application filed by the defendants and dismissed the suit because relief sought by the plaintiff can only be given by the Revenue Court because without declaration of the Khatedari rights, plaintiff cannot get the mutation cancelled and get corrected the entries in the revenue record. So, appeal be dismissed. 7. I have considered the arguments advanced by learned counsel for the plaintiff as well as learned counsel for the defendant Nos.1 to 4. 8. It is an admitted position that the plaintiff had filed a civil suit in the year 2003 claiming relief of cancellation of the sale deeds, and correction of entries in the revenue record etc. As per averments of the plaintiff, the plaintiff is seeking relief mainly for cancellation of the sale deed. 8. It is an admitted position that the plaintiff had filed a civil suit in the year 2003 claiming relief of cancellation of the sale deeds, and correction of entries in the revenue record etc. As per averments of the plaintiff, the plaintiff is seeking relief mainly for cancellation of the sale deed. It is also an admitted position that the sale deed can only be cancelled by the Civil Court after adducing evidences by the parties. The learned court below had framed the issues on 06.08.2007 in which learned court below had already framed the issues regarding jurisdiction of this Court. So, in my considered opinion, learned trial Court wrongly allowed the application under Order 7 Rule 11 CPC filed by the defendants because objection raised by the defendants can only be decided only after leading evidence by the parties. So, order dated 29.11.2021 passed by the learned trial Court deserves to be setaside. 9. Accordingly, appeal filed by the plaintiff is allowed. Judgment & decree dated 29.11.2021 passed by the learned trial Court is set-aside. Learned trial Court is directed to decide the suit filed by the plaintiff within a year from the date of receipt of certified copy of this order. 10. Pending application/s if any, stand/s disposed of.