Rajasthan High Court

Braj Mohan S/O Late Shri Jagannath ... vs Rameshwar S/O Late Shri Jagannath ... on 23 February, 2022

Bench: Prakash Gupta

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

               S.B. Civil First Appeal No. 146/2021

1.     Braj Mohan S/o Late Shri Jagannath Sharma
2.     Jagdish S/o Late Shri Jagannath Sharma,
       Both R/o Pipali Wali Dhani, Near Jawahar Circle, Village
       Chainpura, Tehsil Sanganer, District Jaipur (Raj.)
                                                      ----Appellants/Plaintiffs
                                   Versus
1.     Rameshwar S/o Late Shri Jagannath Sharma, R/o Pipali
       Wali Dhani, Near Jawahar Circle, Village Chainpura, Tehsil
       Sanganer, District Jaipur (Raj.)
2.     Jabbarmal Chidaliya S/o Shri Chandan Mal, Authorized
       Director M/s Sujas Developers Private Limited Registered
       Office S-1, Mayur Tower, Second Floor, Nehru Bazar,
       Jaipur (Raj.)
                                               ----Respondents/Defendants

For Appellant(s) : Mr. JP Goyal, Sr. Advocate with Mr. Kushagra Sharma, Advocate and Mr. Abhi Goyal, Advocate For Respondent(s) : Mr. L.L. Gupta, Advocate Dr. Abhinav Sharma, Advocate

HON'BLE MR. JUSTICE PRAKASH GUPTA

Judgment

Date of Judgment :: 23/2/2022

This Civil First Appeal has been filed by the appellants-

plaintiffs (for short, 'the plaintiffs') against the order dated

10.3.2021 passed by the Trial Court, whereby the plaint filed by

the plaintiffs has been rejected being barred by law in view of the

provisions of Order 7 Rule 11 (D) readwith Section 9 CPC.

Facts of the case are that the plaintiffs filed a suit for

declaration and permanent injunction against the respondents-

defendants (for short, 'the defendants'), wherein it was averred

(2 of 11) [CFA-146/2021]

that the plaintiffs and the defendant no.1 are real brothers. Their

father was having agricultural land admeasuring total 9 bigha and

5 biswa in village Chainpura, Tehsil Sanganer, Distt. Jaipur, of

which the plaintiffs and defendant no.1 are khatedar tenants. On

some khasra numbers of the aforesaid agricultural land, the

plaintiffs and defendant no.1 got constructed their houses and

possession of 2000 sq. yards area admeasuring 180 Ft. X 100 Ft.,

was handed over by the plaintiffs and defendant no.1 to defendant

no.2. The defendant no.1 mesmerized the plaintiffs and got

executed an agreement to sell dated 19.1.2008 in favour of

defendant no.2 for selling the land in a sale consideration of Rs.

155,00,000/-, out of which Rs. 90,00,000/- were received by the

plaintiffs and balance amount of Rs. 65,00,000/- were received by

the defendant no.1. After the death of Jagannath (father of the

plaintiffs and defendant no.1) on 18.1.1999, the said agricultural

land was acquired by UIT for residential purposes, therefore, no

mutation was opened in the name of plaintiff and defendant no.1.

After the agreement to sell, the defendant no.1 fraudulently got

executed a Power of Attorney and relinquishment deed in his

favour and initiated the proceedings for getting compensation and

issuing a patta in his favour. When the plaintiffs came to know

about it, they submitted objections in JDA on 3.7.2014 and got

cancelled the Power of Attorney and initiated the proceedings for

declaring the relinquishment deed as null and void. It was further

submitted that on the basis of forged agreement to sell, the

defendant no.1 received Rs. 15,00,00,000/- additionally from the

defendant no. 2, for which the defendant no.2 lodged FIR No.

1022 at Police Station, Jawahar Circle, Jaipur on 3.12.2004 and

the information of which was received by the plaintiffs on

(3 of 11) [CFA-146/2021]

6.1.2015 when they received copy of the same and thereafter the

plaintiffs lodged FIR No. 68/2015 at Police Station, Jawahar Circle,

Jaipur.

The defendants filed an application under Order 7 Rule

11 (d) readwith Section 151, wherein it was stated that in the

plaint, the suit land was said to be agricultural land, therefore, in

view of Section 256 of the Rajasthan Tenancy Act, the Civil Court

had no jurisdiction to try the suit. It was also pleaded that the

plaintiffs were not having actual and physical possession over the

suit property and as the suit property had already been acquired

by UIT for residential purposes and award was passed, jurisdiction

of the Civil Court was barred. It was also contended that the

plaintiffs concealed the material facts from the Court and did not

file the suit with clean hands. It was further averred that since the

matter in relation to the suit property had already been decided by

this Court. Objection with regard to suit being time barred was

also taken.

The said Court vide its order dated 13.7.2015 in view

of the provisions of Order 7 Rule 10 CPC returned the plaint for

presenting the same before the proper court. Against the order

dated 13.7.2015, an appeal was filed and the appellate Court vide

its order dated 24.4.2018 dismissed the appeal and affirmed the

order dated 13.7.2015 passed by the Trial Court. The defendants

filed the instant application under Order 7 Rule 11 readwith

Section 151 CPC. The trial court vide its order dated dated

10.3.2021 rejected the plaint filed by the plaintiffs being barred by

law. Hence, this Civil First Appeal has been filed.

Learned counsel for the plaintiffs submits that the

plaintiffs neither sought any relief in respect of land acquisition

(4 of 11) [CFA-146/2021]

proceedings nor sought any relief of possession, but the suit was

filed due to interse dispute between the parties for declaring the

agreement to sell dated 19.1.2008 as null & void. He further

submits that any document which is got executed by fraud, can

only be declared as null and void by the Civil Court and not by the

Revenue Court. He further submits that the writ petition and other

proceedings filed and decided are not in respect of the agreement

to sell, but are related to the acquisition proceedings, which do

not bar to seek relief against the defendants in the present suit,

therefore, the present suit is maintainable. He further submits

that the land in question is not being used for cultivation nor any

'Lagan' is being paid for the last so many years and even the

same is surrounded by residential colony, therefore, the same

cannot be said to be an agricultural land, where the rights and

liabilities are required to be determined under the Land Revenue

Act or Tenancy Act.

On the other hand, learned counsel for the defendants

has opposed the same and submits that earlier Jagdish Sharma

(plaintiff no.2) filed a civil suit for declaration, partition and

injunction against the plaintiff no. 1 and defendant. On account of

acquisition of land and award having been passed on 2.4.1981

and the land having been recorded in the name of JDA in the

revenue record, an application was filed by the defendant under

Order 7 Rule 11 (d), which was allowed by the trial court vide its

order dated 8.2.2013 and the suit filed by Jagdish Sharma was

rejected. Against the order dated 8.2.2013, Jagdish Sharma filed

S.B. Civil Regular First Appeal No. 183/2013 before this Court,

which was dismissed as withdrawn by the Coordinate Bench of this

Court vide order dated 14.10.2014. Thereafter aforesaid Jagdish

(5 of 11) [CFA-146/2021]

Sharma filed S.B. Civil Misc. Application No. 250/2015 for

recalling the order dated 14.10.2014, which was dismissed by the

Coordinate Bench of this Court vide order dated 25.7.2016.

Against the order dated 25.7.2016, Special Leave Petition (Civil)

No. D30034/2017 was filed, which also came to be dismissed by

the Hon'ble Apex Court vide its order dated 10.11.2017. However,

these material facts have been concealed by the plaintiffs from

this Court. Since the controversy in the matter had already been

set at rest, therefore, the trial court has rightly rejected the plaint

under Order 7 Rule 11 CPC. They further submit that the suit land

has already been acquired and award has already been passed,

therefore, suit for declaring the agreement to sell as null and void

was not maintainable. They further submit that Jagannath, father

of the appellants and defendant no.1 filed S.B. Civil Writ Petition

No. 231/1975 before this Court, which was dismissed by the

Coordinate Bench of this Court vide order dated 1.7.2008 in view

of the fact that the Notifications impugned in the writ petition had

already been examined and upheld upto the Hon'ble Supreme

Court.

Heard. Considered.

From a perusal of the material on record, it is noticed

that earlier Jagdish Sharma (plaintiff no.2) filed a civil suit for

declaration and partition against the plaintiff no. 1 and defendant.

The defendant filed an application under Order 7 Rule 11 CPC

raising the objection that the suit land had already been acquired

and the award had already been passed and the land was

recorded in the name of JDA in the revenue record, therefore, the

Civil Court was not having any jurisdiction to try the suit, which

was allowed by the trial court vide its order dated 8.2.2013 and

(6 of 11) [CFA-146/2021]

the suit filed by Jagdish Sharma was rejected. Against the said

order dated 8.2.2013, SB Civil Regular First Appeal No. 183/2013

was filed and the Coordinate Bench of this Court dismissed the

appeal vide order dated 14.10.2014. The order dated 14.10.2014

is reproduced as under:

"Learned counsel Mr. Sanjay Bharati appearing for the learned counsel Mr. Rajendra Kumar Sharma for the appellant seeks permission to withdraw the appeal in view of the application being No. 14846/2014 filed by the appellant. The permission as sought for is granted. The appeal stands dismissed as withdrawn."

Thereafter an application no. 250/2015 was filed by

Jagdish Sharma for recalling the order dated 14.10.2014, which

also came to be dismissed by the Coordinate Bench of this Court

vide order dated 25.7.2016. The operative part of the order dated

25.7.2016 is reproduced as under:

"izkFkZuk i= ij lquk x;k ,oa fopkj fd;k x;kA

mijksDr izkFkZuk i= ds Øe esa tgka rd

[email protected] }kjk vius vf/koDrk dks fn;s x;s vf/kdjksa dk

iz'u gS] fnukad 16-5-2013 dks [email protected] dh vksj ls

vf/koDrk dks fn;s x;s odkryukesa esa vihy dks foMªks fd;s tkus

dk Hkh vf/kdkj fn;k x;k gSA blds lkFk lkFk [email protected]

dh vksj ls bl U;k;ky; esa foMªks dk izkFkZuk i= fnukad 15-7-2014

dks izLrqr fd;k x;k ftlds lkFk [email protected] dk 'kiFki= Hkh

layXu gS ftlesa Li"V :i ls izkFkZuk i= dh pj.k la[;k 1 ls 7

dks viuh tkudkjh esa gksuk crkdj 'kifk vk;qDr ds le{k

lR;kfir djk;k x;k gSA ,slh fLFkfr esa tgka izkFkZuk i=

(7 of 11) [CFA-146/2021]

[email protected] ds 'kiFk i= ls lefFkZr gS ,oa mlh izkFkZuk i= o

'kiFk i= ds vk/kkj ij led{k ihB }kjk vihy dks foMªks fd;k

x;k gS] bu leLr rF;ksa dks /;ku esa j[krs gq,s bl U;k;ky; dh

led{k ihB }kjk ikfjr vkns'k fnukad 14-10-2014 dks okil fy;s

tkus ¼recall½ ckcr~ izLrqr izkFkZuk i= Lohdkj fd;s tkus ;ksX;

izrhr ugh gksrk gSA

vr% [email protected] dh vksj ls bl U;k;ky; dh led{k

ihB }kjk ikfjr vkns'k fnukad 14-10-2010 dks okil fy;s tkus

¼recall½ ckcr~ izLrqr izkFkZuk i= [kkfjt fd;k tkrk gSA "

The said order dated 25.7.2016 was challenged by

Jagdish Sharma by filing Special Leave Petition (Civil) Nos.

D30034/2017 before the Hon'ble Apex Court, which came to be

dismissed vide order dated 10.11.2017.

Thereafter in the present suit, the defendants filed an

application under Order 7 Rule 11 (d) readwith Section 151 CPC

and the trial court vide its order dated 10.3.2021 rejected the

plaint filed by the plaintiffs being barred by law. The operative part

of the order dated 10.3.2021 is reproduced as under:

"okn i= ds lkj dks ijhf{kr djus ls ;fn i{kdkjksa ds e/; fookn fo|eku

nLrkost dks 'kwU; ?kksf"kr ugh djus dk gksdj fujLr ¼cancel½ djkus dk gS] mlh fLFkfr

esa okn flfoy U;k;ky; esa iks"k.kh; ekuk tk ldrk gSA orZeku ekeys esa i{kdkjksa ds chp

Lohd`r :i ls fooknxzLr Hkwfe ds lEcU/k esa pys rdklesa ds ckn esa vij ftyk U;k;k/kh'k

Øe 11 t;iqj egkuxj }kjk fnukad 08-02-2013 dks fn;s vius fu.kZ; esa Hkh ;g Li"Vr%

QkbZfMax nh gS fd tgka Hkwfe dk vtZu gks pqdk gS] ogka jkT; dks Hkwfe ds iz;qDr fgLls dks

fdlh r`rh; i{k dks vokIr djus ls izfrcaf/kr djus dk nkok Hkwfe vtZu vf/kfu;e pwafd

Lo;a esa ,d ifjiw.kZ lafgrk gksus ls] ,slk nkok flfoy U;k;ky; esa pyus ;ksX; ugh gS]

bldk ,dek= mipkj fjV gSA"

The order dated 8.2.2013 passed by the trial court

attained finality upto the Hon'ble Apex Court, but the plaintiffs

(8 of 11) [CFA-146/2021]

concealed this material fact. The plaint has been cleverly drafted

by the plaintiffs and in order to bring the suit within the

jurisdiction of Civil Court, they made the prayer that the

agreement to sell dated 19.1.2008 be declared as null and void.

In the case of T. Arivandandam v. T.V. Satyapal and

Another reported in (1977) 4 SCC 467, it has been held by the

Hon'ble Apex Court:

"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently 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, he should exercise his power under Order 7, Rule 11 CPC 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 10, CPC. An activist Judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Cr.XI) 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."

(Emphasis supplied by me) It will also be apposite to refer to the following

observations of the Hon'ble Apex Court in the case of Pearlite

(9 of 11) [CFA-146/2021]

Liners (P) Ltd. Versus Manorama Sirsi reported in (2004) 3

SCC 172 as under:

"10. The question arises as to whether in the background of the facts already stated, such reliefs can be granted to the plaintiff. Unless there is a term to the contrary in the contract of service, a transfer order is a normal incidence of service. Further, it is to be considered that if the plaintiff does not comply with the transfer order, it may ultimately lead to termination of service. Therefore, a declaration that the transfer order is illegal and void, in fact amounts to imposing the plaintiff on the defendant in spite of the fact that the plaintiff allegedly does not obey order of her superiors in the management of the defendant Company. Such a relief cannot be granted. Next relief sought in the plaint is for a declaration that she continues to be in service of the defendant Company. Such a declaration again amounts to enforcing a contract of personal service which is barred under the law. The third relief sought by the plaintiff is a permanent injunction to restrain the defendant from holding an enquiry against her. If the management feels that the plaintiff is not complying with its directions it has a right to decide to hold an enquiry against her. The management cannot be restrained from exercising its discretion in this behalf. Ultimately, this relief, if granted, would indirectly mean that the court is assisting the plaintiff in continuing with her employment with the defendant Company, which is nothing but enforcing a contract of personal service. Thus, none of the reliefs sought in the plaint can be granted to the plaintiff under the law. The question then arises as to whether such a suit should be allowed to continue and go for trial. The answer in our view is clear, that is, such a suit should be thrown out at the threshold. Why should a suit which is bound to be dismissed for want of jurisdiction of a court to grant the reliefs prayed for, be tried at all? Accordingly, we hold that the trial court was absolutely right in rejecting the plaint and the lower appellate court rightly affirmed the decision of the trial court in this behalf. The High Court was clearly in error in passing the impugned judgment whereby the suit was restored and remanded to the trial court for being decided on merits. The judgment

(10 of 11) [CFA-146/2021]

of the High Court is hereby set aside and the judgments of the courts below, that is, the trial court and the lower appellate court are restored. The plaint in the suit stands rejected."

(Emphasis supplied by me)

Indisputably the land in question had already been

acquired and award had already been passed and land was

recorded in the name of JDA. Earlier suit filed by plaintiff Jagdish

Sharma was rejected by the trial court vide its order dated

8.2.2013, which was confirmed by the Coordinate Bench of this

Court vide order dated 14.10.2014. Thereafter a Misc. Application

No. 250/2015 was filed by Jagdish Sharma for recalling the order

dated 14.10.2014, which was also dismissed by the Coordinate

Bench of this Court vide order dated 25.7.2016. Against which

Special Leave Petition (Civil) No. D30034/2017 was filed before

the Hon'ble Apex court, which also came to be dismissed vide

order dated 10.11.2017. However, at the time of filing the present

suit, deliberately and with malafide intention, these material facts

have been concealed by the plaintiffs from this Court.

In the case of Temple of Thakur Shri Mathuradassji,

Chhota Bhandar Versus Shri Kanhaiyalal & Ors. 2008 (2)

RLW 1390, it has been held by the Coordinate Bench of this Court

that if the suit is filed by abusing the process of the Court

and cannot be dismissed under Order VII Rule 11 of CPC,

then the Court is not helpless and can accordingly invoke

the powers under Section 151 of CPC and can dismiss the

suit under Section 151 of CPC.

                                            (Emphasis supplied by me)




                                                                              (11 of 11)                  [CFA-146/2021]

Thus, it is trite that when the application was filed

under Order 7 Rule 11(d) readwith Section 151 CPC, which did not

fall within the scope of Order 7 Rule 11 CPC, the Court can reject

the same while exercising the powers under Section 151 CPC.

Taking into consideration the aforesaid facts and

circumstances of the case, in my opinion it was a fit case to reject

the plaint and the trial court was right in rejecting the plaint under

Order 7 Rule 11 readwith Section 151 CPC.

For the aforesaid reasons, I find no force in this appeal

and the same being bereft of any merit, is liable to be dismissed,

which stands dismissed accordingly.

Consequent upon the dismissal of the appeal, stay