Rajasthan High Court
Lalaram vs Ramkishore And Ors on 21 January, 2022
Bench: Sameer Jain
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 18986/2017
Lalaram Son Of Late Ram Sahai, Resident Of Village
Maharajpura, Tehsil Bassi, District Jaipur.
----Petitioner
Versus
1. Ramkishore, Son Of Late Ram Sahai, Resident Of Village
Maharajpura, Tehsil Bassi, District Jaipur.
2. State Through Tehsildar, Bassi, District Jaipur.
3. Gram Panchayat, Kacholiya Through Sarpanch, Tehsil
Bassi, District Jaipur.
4. Dy. Registrar, Bassi, District Jaipur.
----Respondents
For Petitioner(s) : Mr. Aman Pareek on behalf of
Mr. Rajat Ranjan (through VC)
For Respondent(s) : Mr. Anoop Pareek (through VC)
HON'BLE MR. JUSTICE SAMEER JAIN
Judgment / Order
Reserved on : 10/01/2022
Pronounced on : 21/01/2022
1. Present writ petition has been filed against the order dated
02.07.2008 passed in Civil Suit No.140/2006 by the learned SDO,
Bassi, District Jaipur by which the application filed by the
petitioner under Order 7 Rule 11 CPC has been dismissed as well
as the order dated 16.08.2017 passed by the learned Board of
Revenue by which the revision filed by the petitioner against
impugned order dated 02.07.2008 passed by the learned SDO,
Bassi, District Jaipur has been dismissed.
2. Brief facts of the case are that the plaintiff-respondent filed a
suit No.140/2006 before the learned SDO, Bassi, District Jaipur
(2 of 4) [CW-18986/2017]
alleging therein that plaintiff-respondent and defendant-petitioner
are in joint possession of cultivatory and Khatedari ancestral
agricultural land as mentioned in para No.1 of the plaint. The said
property was in khatedari of Sohanlal who was Uncle of plaintiff-
respondent and defendant No.1-petitioner.
It was further stated in the plaint that Mr. Sohanlal expired in
the year 1979 without leaving any heirs and the plaintiff-
respondent and defendant No.1-petitioner are legal heirs and
owners of the said property having equal shares. The defendant
No.1-petitioner executed a forged will of Late Mr. Sohanlal wherein
he showed himself as the adopted son of Mr. Sohanlal. Mutation
was wrongly opened in the name of defendant No.1-petitioner. The
plaintiff-respondent and defendant No.1-petitioner both are in
possession of estate of Late Sohanlal. It was further stated in the
plaint that plaintiff-respondent had been requesting the defendant
No.1-petitioner for last 15 years to get the plaintiff-respondent's
name entered in the revenue records but the defendant No.1-
petitioner has mala fide intention and is not effecting it. Therefore,
the plaintiff-respondent prayed for declaration that he is
khatedar/kashtkar of 1/2 share of the disputed property. Further,
the plaintiff-respondent also prayed for permanent injunction
against the defendant-petitioner.
3. Against the said suit for declaration and permanent
injunction, the defendant-petitioner filed an application under
Order 7 Rule 11, Rule 15, Rule 16, Section 10, Section 11 read
with Section 151 CPC submitting therein that the learned Board of
Revenue in Appeal No.44/1994/LR/Jaipur titled Goduram Vs.
(3 of 4) [CW-18986/2017]
Lalaram and Ors. vide order dated 19.03.1995 has already held
that the defendant-petitioner was adopted by Late Mr. Sohanlal.
Mr. Ramkishore was also a party in the said litigation. Therefore,
the present suit is not maintainable being hit by rule of estoppel
and res-judicata.
4. Per contra, the plaintiff-respondent-Ramkishore submitted
that the present application under Order 7 Rule 11 CPC is not
maintainable and is liable to be dismissed because the earlier
proceedings were revenue proceedings and pertaining to mutation
while the issue of adoption, possession, involved herein, cannot be
decided by the revenue courts and has no binding effect until and
unless the same are adjudicated upon by the Civil Courts.
Secondly, his submission was that the earlier dispute pertained to
different parties and on different issues. Further, res-judicata is a
mixed question of law and fact and it can only be decided after
framing of issues and evidence and not at a preliminary stage.
Further, the same objection has to be raised in written statement
and therefore, the application is not maintainable under Order 7
Rule 11 CPC.
5. After considering above submissions of both the sides,
learned SDO as well as learned Board of Revenue vide impugned
orders, referred above, held that the present application under
Order 7 Rule 11 CPC is not maintainable and being aggrieved of
above, the present writ petition has been filed.
6. This Court has gone through the records of the writ petition
and submissions advanced by both the respective counsels.
(4 of 4) [CW-18986/2017]
7. In the considered view of this Court, the supervisory
jurisdiction under Article 227 of the Constitution of India can only
be invoked when there is a mistake apparent on the face of record
of the impugned order or there is manifest illegality.
8. In the present matter, on perusal of records it is found that
the learned Board of Revenue by way of speaking order has held
that on account of the fact that the earlier issue decided by the
Board was pertaining to mutation and parties were different, being
a revenue authority and not a Civil Court, the said findings will not
constitute a binding precedence and hence res-judicata shall not
be applied.
9. Further, the question of res-judicata is a mixed question of
law and facts which can only be decided after framing of issues
and carrying out evidences and the objections have to be raised in
the written statement and not at the stage of Order 7 Rule 11
CPC. Hence, the learned Board of Revenue has rightly held vide
order dated 16.08.2017 that the said application under Order 7
Rule 11 CPC is not maintainable.
10. In the light of above facts, this Court is of the view that no
interference is called for in the orders impugned dated 02.07.2008
and 16.08.2017 and therefore, the writ petition is liable to be
dismissed and the same is accordingly dismissed.
11. All pending applications also stand disposed of.
(SAMEER JAIN),J
Raghu/
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