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2024 DIGILAW 895 (RAJ)

Arvind Sharma, S/o. Bhawanishankar v. Girdhar Gopal Sharma, S/o. Bhawanishankar

2024-06-27

ASHOK KUMAR JAIN

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ORDER : (Ashok Kumar Jain (V. J.), J.) : 1. Instant revision petition is preferred by petitioner defendant no.2 aggrieved from order dated 08.04.2021 in civil suit no. 27/2019 passed by learned Civil Judge, Kanwas, District Kota whereby an application preferred under Order VII Rule 11 of CPC was dismissed. 2. Learned counsel for petitioner while relying upon grounds of revision petition has submitted that the plaintiff has filed a civil suit for declaration and permanent injunction for agriculture land as legal representative of Bhawani Shankar and challenged the gift deed dated 20.01.2017. He also submitted that a suit for declaration of khatedari right and correction of entries and division has already been filed by plaintiff Girdhar Gopal, Kamla Devi, Suchi Sharma before the Sub-Divisional Officer, Kanwas. He also submitted that during pendency of this revenue suit, the plaintiffs have filed another suit before the civil court, hence, same is directly hit by judgment of Hon’ble Supreme Court in case of Pyarelal Vs. Shubendra Pilania & Ors. (2019) 3 SCC 692 . He also submitted that unless the khatedari rights are declared in favour of plaintiffs, the civil suit to challenge the gift deed is not maintainable before the civil court. He also submitted that the civil suit preferred by plaintiff is barred by law under Section 207 of Rajasthan Tenancy Act, therefore, the civil suit is liable to be rejected under Order VII Rule 11 of CPC. The trial court has committed error while dismissing the application preferred by the petitioners. 3. Aforesaid contentions were opposed by learned counsel for respondent on the ground that a declaratory suit to challenge the gift deed executed by defendant no.1 is maintainable before the civil court. He also submitted that in the gift deed itself it was mentioned that the land in question is ancestral property and co-sharers are entitled to their share but to deprive the plaintiffs from obtaining their share, the questioned gift deed was executed by defendant no.1 in favour of defendant no.2. He also submitted that the suit before the Revenue Court is different than present suit, hence, same cannot be dismissed on the ground that before declaration of khatedari right, a suit cannot be filed. He also submitted that the grounds raised by the petitioner is a matter of defence and same cannot be considered while deciding application under Order VII Rule 11 CPC. He also submitted that the grounds raised by the petitioner is a matter of defence and same cannot be considered while deciding application under Order VII Rule 11 CPC. He also submitted that the ground raised herein is a mixed question of fact and law. 4. Heard learned counsel for the parties and perused the material available on record. 5. A perusal of record reflects that a civil suit for declaration and permanent injunction was filed by six plaintiffs Girdhar Gopal Sharma, Shashi Sharma, Santosh Joshi, Sheela Bhardwaj, Seema Sharma, Shuchi Sharma against Bhawanishankar, Arvind Sharma and Rajendra Sharma. In Para no.4 of the plaint pedigree of defendant no.1 Bhawanishankar is mentioned, which reflects that the wife of Bhawanishankar has already expired. The plaintiffs have claimed that the property in para no.2 is an ancestral property and not a self acquired property of Bhawanishankar, therefore, Bhawanishankar has no right to bequeath or execute a gift deed in favour of defendant no.2 in order to deprive other co-sharers from the property. The plaint itself indicates that primarily this gift deed dated 20.01.2017 was challenged in civil suit and a relief of declaration was sought against defendants with regard to sale deed. Further, ancillary relief of injunction was claimed in the suit. 6. In case of Dahiben vs Arvindbhai Kalyanji Bhanusali (Gajra) (D) through LRs and Ors. AIR 2020 SUPREME COURT 3310, Hon’ble Supreme Court while referring the cases of Azhar Hussain vs Rajiv Gandhi 1986 AIR 1253, Sopan Sukhdeo Sable v. Assistant Charity Commissioner, (2004) 9 SCC 512 , Saleem Bhai And Ors vs State Of Maharashtra And Ors. 2003 (1) SCC 557 , I.T.C. Limited vs The Debts Recovery Appellate Tribunal & Ors. 1998 (2) SCC 70 observed that the remedy under Order VII Rule 11 CPC is an independent and special remedy, wherein the court is empowered to dismiss a civil suit at the threshold, without proceeding to record evidence and conducting trial, on the basis of evidence adduced, if it is satisfied that action should be terminated on any of the grounds contained in Rule 11 of Order VII CPC. The underlying object is that if in a suit, no cause of action is disclosed or suit is barred by limitation, the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. The underlying object is that if in a suit, no cause of action is disclosed or suit is barred by limitation, the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such case, it would be necessary to put an end to a sham litigation, so that further judicial time is not wasted. 7. In case of Azhar Hussain vs Rajiv Gandhi (supra) Hon’ble Supreme Court held that the whole purpose of conferment of powers under the provision is to ensure that the litigation which is false and bound to prove abortive should not be permitted to waste judicial time of the court and further observed that: The whole purpose of confernment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocle need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary Civil litigation the Court readily exercises the power to reject a plaint if it does not disclose any cause of action. 8. Further, it was observed that the power conferred on the court to terminate a civil action is drastic one but the conditions enumerated in Rule 11 of Order VII are required to be strictly adhered to. The duty is caste upon the court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint read with the documents referred upon or whether the suit is barred by any law. 9. In case of Ram Singh & Ors vs Gram Panchayat Mehal Kalan (1986) 4 SCC 364 Hon’ble Supreme Court has observed that when a suit is barred by any law, plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation. Thus, by clever drafting any court can presume that suit is entertainable and not barred by law. 10. In case of T. Arivandandam vs T. V. Satyapal & Another 1977 4 SCC 467 Hon’ble Supreme Court while considering the provision of Rule 11 of Order VII CPC observed that it is dangerous to be too good. Thus, by clever drafting any court can presume that suit is entertainable and not barred by law. 10. In case of T. Arivandandam vs T. V. Satyapal & Another 1977 4 SCC 467 Hon’ble Supreme Court while considering the provision of Rule 11 of Order VII CPC observed that it is dangerous to be too good. We are referring to the following observation by representing following para: We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now, pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, be should exercise his power under Or. VII r. 1 1 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C. An activist Judge is the answer to irresponsible law suits. The trial court should insist imperatively on examining the party at the first bearing so that bogus litigation can be shot down at the earliest stage. The Penal Code (Ch. XI) is also resourceful enough to meet such men, and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi "It is dangerous to be too good." 11. A perusal of law over the point clearly reflects that a meaningful reading of plaint is required and at such state of Order VII Rule 11 CPC the Court cannot go into a roving enquiry and travel beyond facts narrated in the plaint or the documents annexed in support of plaint. Since, the land in question is agriculture land, therefore, we have to carefully go through the plaint and also consider that the relief claimed by the plaintiffs in the suit can be effectively redressed from revenue court. 12. Since, the land in question is agriculture land, therefore, we have to carefully go through the plaint and also consider that the relief claimed by the plaintiffs in the suit can be effectively redressed from revenue court. 12. A perusal of plaint clearly reflects that in para no.6 it has been mentioned that the revenue suit was filed by Girdhar Gopal and Others against Bhawanishankar and Others before the Sub- Divisional Officer, Sangod and same is pending as case no. 7/2018. A copy of this suit is annexed by the petitioners which indicated that Girdhar Gopal, Kamla Devi and Shuchi Sharma have filed a revenue suit under Sections 88, 89, 188 and 53 of Rajasthan Tenancy Act. A perusal of revenue suit indicate that in the revenue suit nowhere it was mentioned that defendant no.1 has executed a gift deed on 20.11.2017. In present plaint, a fact is mentioned in para no.10 that after filing of written statement in revenue suit by defendants they came to know about execution of gift deed. As a result, the civil suit was filed on 21.12.2019. 13. A perusal clearly reflects that after discovery of gift deed this civil suit was filled primarily to challenge gift deed qua the rights of plaintiff. As regard to right of tenancy in agriculture land is concerned, there is no doubt that same can be declared by the competent revenue court and not by the civil court but it is also a settled proposition of law that revenue entries are meant for fiscal purpose and they are only to ascertain tenants or khata-holders of land. In case of Pyarelal Vs. Shubhendra Pilania (supra), Hon’ble Supreme Court has considered the provision of Section 207 of Rajasthan Tenancy Act and held that the jurisdiction of civil court is barred in respect of suits and application of the nature specified in IIIrd schedule. The suit for declaration of khatedari rights in agriculture property can be filed before the revenue court only. 14. The plaintiffs have claimed that the suit for cancellation and declaration is only maintainable before the civil court. In case of Mani Ram Chimpa and Ors. vs. Mamkori Chimpa and Ors. (2021) 2 RLW (Raj) 1219, while considering similar situation a Co-ordinate Bench of this Court has distinguished the circumstances with regard to filing of civil suit for cancellation of document before civil court. In case of Mani Ram Chimpa and Ors. vs. Mamkori Chimpa and Ors. (2021) 2 RLW (Raj) 1219, while considering similar situation a Co-ordinate Bench of this Court has distinguished the circumstances with regard to filing of civil suit for cancellation of document before civil court. Herein, a suit before revenue court was already pending and during pendency of revenue suit it was disclosed that the document was executed to deprive the plaintiffs to claim their right over the property. After this disclosure, instant civil suit was filed to challenge the gift deed executed by defendant no.1 in favour of defendant no.2. Therefore, the judgement in case of Pyarelal vs Shubhendre Pilania (Supra) is not applicable in instant case. 15. Considering the entirety of facts and circumstances as mentioned herein, I am of the considered view that the trial court has rightly dismissed the application under Order VII Rule 11 of CPC preferred by the present petitioners. The trial court was of the view that the relief claimed by plaintiff is not barred under Section 207 of Rajasthan Tenancy Act and the petitioners were unable to establish that the relief claimed by the plaintiffs is barred by any law. Thus, the revision petition is devoid of merits and is liable to be dismissed. 16. In view of discussion made hereinabove, the revision petition preferred aggrieved from order dated 08.04.2021 is hereby dismissed. 17. Misc. application, if any, stands disposed of.