Dolat Khan vs Kamla Devi
2022 Latest Caselaw 14698 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 106/2022

1. Dolat Khan S/o Hakam Ali Khan, Aged About 40 Years, R/o Kuchaman City, Tehsil Nava, Distt. Nagaur.

2. Darab Khan S/o Noor Mohd, Aged About 39 Years, R/o Kuchaman City, Tehsil Nava, Distt. Nagaur.

3. Parmaram S/o Dhanna, Aged About 25 Years, R/o Kala Bhata Ki Dhani, Tehsil Nava, Distt. Nagaur.

----Petitioners Versus

1. Kamla Devi D/o Ugmaram @ Umaram, W/o Shri Kishnaram, R/o Jiliya (Badh Ki Dhani), Tehsil Nava, Distt. Nagaur.

2. Vimla Devi D/o Ugmaram @ Umaram, W/o Sohanlal, R/o Mangalpura, Tehsil Nava, Distt. Nagaur.

3. Nirmala Devi D/o Ugmaram @ Umaram, W/o Mehram, R/ o Darapura, Tesil Parbatsar, Distt. Nagaur.

4. Bhagwati Devi D/o Ugmaram @ Umaram, W/o Parmaram, Naraypura (Naiyo Ki Dhani), Tehsil Nava, Distt. Nagaur.

5. Ugmaram @ Umaram S/o Harbakta, R/o Sitapur, Tehsil Nava, Distt. Nagaur.

                                                                ----Respondents


For Petitioner(s)        :     Mr. Darshan Jain
For Respondent(s)        :     Mr. C.R. Jakhar



            HON'BLE MS. JUSTICE REKHA BORANA

                                    Order

14/12/2022

The matter comes up on an application for vacation of the

interim order dated 03.08.2022.

With the consent of learned counsel for the parties, the

revision petition itself has been heard finally.

The present revision petition has been filed against the order

dated 22.04.2022 whereby the application under Order 7 Rule 11

of the Code of Civil Procedure as filed by the defendants has been

rejected.

(2 of 3) [CR-106/2022]

The case of the petitioners is that the suit as filed by the

plaintiffs was by nomenclature, for cancellation of the sale-deed

but in effect it was for declaration of their khatedari rights. He

further submitted that until there is a declaration of rights by a

competent Revenue Court, the suit before the Civil Court could not

be maintained and was strictly barred by law. Learned counsel

has relied upon the judgment passed by the Hon'ble Apex Court in

the case of Pyarelal vs. Shubhendra Pilania (Minor) & Ors.

reported in (2019) 3 Supreme Court Cases 692.

Per contra, learned counsel for the non-petitioners submits

that the suit was filed way back in the year 2011 and the written

statements were filed by all the defendants from time to time.

The application under Order 7 Rule 11 was filed on 30.03.2021

after the completion of the plaintiff evidence. Further, the said

application was filed by defendant No.1 Ugma Ram and not the

present petitioners. Ugma Ram did not prefer to challenge the

order impugned. The ground as raised in the application under

Order 7 Rule 11 was never raised in the written statements by any

of the defendants. Counsel further submits that even otherwise

the suit is for cancellation of sale-deed and not for declaration of

khatedari rights as sought to be portrayed by the defendants.

Learned counsel relied upon the judgment passed by the Hon'ble

Apex Court in the case of Gagandeep Kaur & Anr. vs.

Paramjeet Kaur & Ors. reported in 2019 (2) Civil Court Cases

491 (Rajasthan).

Heard learned counsel for the parties and perused the

material available on record.

A perusal of the plaint and the relief as prayed for by the

plaintiffs makes it clear that the same is for cancellation of sale-

(3 of 3) [CR-106/2022]

deed which had been executed by defendant No.1 in favour of the

other defendants. As a consequential relief, the prayer for

injunction has also been made. A complete reading of the prayers

as made in the plaint clarifies that the same does not pertain to

any relief for declaration as the plaintiffs being daughters of the

defendant No.1 khatedar did not require any declaration in their

favour and were co-owners of the property by virtue of law.

As held in Gagandeep Kaur's case, in a suit for cancellation

of sale-deed on account of the fact that the suit property in

question was ancestral and transfer was made without any reason,

basis or necessity, the transaction was only voidable and not void

and therefore, the suit was maintainable before the Civil Court.

So far as the judgment of Pyarelal (supra) relied upon by the

petitioners is concerned, the same would not apply to the facts of

the present matter as in the said matter there was a specific

prayer for declaration of khatedari rights.

Therefore, this Court is of the specific opinion that the suit is

not barred by any law and therefore, would not fall within the

purview of Order 7 Rule 11, CPC.

In view of the above observations, this Court is not inclined

to interfere with the order dated 22.04.2022 and the present

revision petition is therefore, dismissed.

All the pending applications stand disposed of.

(REKHA BORANA),J 112-T.Singh/-

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