Municipal Council vs Kishan Singh (2023:Rj-Jd:37780)
2023 Latest Caselaw 9079 Raj

[2023:RJ-JD:37780]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 153/2019

Municipal Council, Nagaur Through Its Commissioner

----Petitioner Versus

1. Kishan Singh S/o Shri Ramkaran, B/c Jat Bhukar, R/o Nagaur Road, Degana, Tehsil Degana, District Nagaur.

2. Baldev S/o Shri Likhma Ram Jat, R/o Behind Panchayat Samiti, Manasar, Tehsil And District Nagaur.

3. Sita Ram S/o Shri Kishan Ji, B/c Mali, R/o Naya Darwaja, Khodon Ka Bas, Nagaur.

4. State Of Rajasthan, Through District Collector, Nagaur.

5. Tehsildar, Nagaur.

----Respondents

For Petitioner(s) : Mr. Rajesh Joshi, Sr. Advocate with Mr. Deepesh A. Purohit

HON'BLE MS. JUSTICE REKHA BORANA

Judgment

04/11/2023

1. The present revision petition has been preferred against the

order dated 07.08.2019 passed by Additional District Judge No.2,

Nagaur in Civil Suit No.68/2011 whereby in a suit for specific

performance of contract, an application as preferred by the

petitioner defendant No.4 Municipal Council under Order 7 Rule

11, CPC has been rejected.

2. The ground as raised by defendant No.4 in the application

was that defendant No.1 Sita Ram had been declared to be a

trespasser by the revenue Court which order became final and

hence, the defendant's title itself being under a cloud, it could not

have been transferred to the plaintiff vide any document. It was

[2023:RJ-JD:37780] (2 of 4) [CR-153/2019]

further submitted that the land in question was a public land being

'agore' land and land of 'way' and hence, even otherwise no

agreement qua the said land could have been executed. The

agreement, if any, was void ab initio and therefore, no decree qua

such document can be passed. Hence, a suit, wherein no effective

relief can be granted, cannot be held to be maintainable. It was

further submitted that present was a collusive suit qua a

Government land and hence, deserves to be dismissed at the very

inception.

3. The application as preferred by defendant No.4 has been

rejected by the Court below with an observation that the

defendant has failed to show that the suit was barred by any law

and further that the issue whether the plaintiff is entitled to any

decree for specific performance, could be decided only after the

suit being adjudicated on merits.

4. Learned counsel for the petitioner submitted that no cause of

action has been pleaded by the plaintiff and therefore, the plaint

was liable to be rejected. In support of his contention, counsel

relied upon the judgment passed by Hon'ble Supreme Court in the

case of Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra)

dead through Legal Representatives & Ors., (2020) 7 SCC

366.

5. Heard learned counsel for the petitioner and perused the

material available on record.

6. A bare perusal of the plaint makes it clear that the plaintiff

had come up with the specific case that the land averred to be a

public land by the defendants has wrongly been averred to be so.

Further, it has specifically been averred that no way is existing on

[2023:RJ-JD:37780] (3 of 4) [CR-153/2019]

the site and therefore, the mutation entries are wrong. It has

further been averred that despite continuous requests, defendant

No.1 has failed to execute the sale deed in favour of the plaintiff in

terms of the agreement to sell and hence, a cause of action has

arisen to the plaintiff to lay the present suit.

7. In the opinion of this Court, the above averments clearly

reflect a cause of action having arisen to the plaintiff for the

present suit. The pleadings regarding the cause of action have

definitely been made in the plaint and the same cannot be

rejected on the said ground.

8. This Court is of the clear opinion that the finding as reached

by the Court below is in consonance with law and does not

deserve any interference. The opinion of this Court is based on the

following reasons:-

i) The present is a suit not only for specific performance

of contract but also for permanent injunction. If the averment of

defendant No.4 to the extent that defendant No.1 had been

declared to be a trespasser on the Government land is admitted

on the face of it, the same ipso facto proves the fact of the

defendant being in possession.

ii) This Court cannot ignore the fact that the present suit

is also for permanent injunction with a prayer to restrain the

defendants from interfering with the possession of the plaintiff.

Even if it is assumed that no decree for specific performance can

be granted in the present matter because of the land being a

public land, it cannot be assumed that the suit for relief for

injunction on the basis of possession would also not be

maintainable.

[2023:RJ-JD:37780] (4 of 4) [CR-153/2019]

iii) The effect of the orders passed by the revenue courts

declaring the defendant to be a trespasser, on the present

proceedings, could only be decided after adjudication of the same

on merits. Further, while allowing the application of defendant

No.4 for impleadment in the present suit and while rejecting the

writ petition as preferred by the plaintiff against the said order, the

writ court also observed that the same would be necessary for

proper adjudication of the issues involved in the present suit.

Meaning thereby, the adjudication of the suit on merits

was implied while passing the said order also.

iv) This Court cannot also ignore the fact that the present

is a suit for specific performance and even if the Court reaches to

the conclusion that a decree for specific performance cannot be

granted, the plaintiff can definitely be held entitled for a decree for

the refund of the consideration amount, if prayed for.

9. By all means, it cannot be held that the plaint is liable to be

rejected on application under Order 7 Rule 11, CPC. The impugned

order does not deserve any interference and hence, the revision

petition is dismissed.

10. Stay petition and all pending applications, if any, also stand

dismissed.

(REKHA BORANA),J 46-KashishS/-

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