Laxmi Devi W/O Sh. Shyam Sunder ... vs Smt. Kushal Kanwar D/O Late Shri ...
2023 Latest Caselaw 4936 Raj/2

[2023:RJ-JP:23412]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                S.B. Civil Revision Petition No. 87/2022

1.       Shyam Sunder Agarwal S/o Shri Hanumandas Agarwal,
         Aged About 65 Years, Resident Of Choudhary Mohalla,
         City Sawai Madhopur (Raj.).
2.       Ganesh Agarwal S/o Shri Shyma Sunder Agarwal, Aged
         About 40 Years, Resident Of Choudhary Mohalla, City
         Sawai Madhopur (Raj.).
3.       Chandra       Prakash       Agarwal        S/o     Shri    Shyam      Sunder
         Agarwal, Aged About 38 Years, Resident Of Choudhary
         Mohalla, City Sawai Madhopur (Raj.).
                                                      ----Defendants-Petitioners
                                       Versus
1.       Smt. Kushalkanwar D/o Late Shri Onkar Singh, Resident
         Of Jatwada Khud, Sawai Madhopur At Present Resident Of
         Village Sapla, Tehsil Chaksu, District Jaipur (Raj.).
                                                        ........Plaintiff-Respondent

2. Smt. Rajeshwari Devi D/o Late Shri Onkar Singh, Aged About 53 Years, Resident Of Jatwada Khurd, Sawai Madhopur At Present Resident Of Sultanpur Post Nizampura, Tehsil Lalsot, District Dausa (Raj.).

3. State Of Rajasthan, Through Sub- Registrar, Sub Registrar Office, Sawai Madhopur (Raj.).

----Proforma-Respondents Connected With S.B. Civil Revision Petition No. 112/2022

1. Laxmi Devi W/o Sh. Shyam Sunder Agarwal, Aged About 60 Years, Resident Of Choudhary Mohalla, City Sawai Madhopur (Raj.).

2. Smt. Anita Devi W/o Sh. Ganesh Agarwal, Aged About 40 Years, Resident Of Choudhary Mohalla, City Sawai Madhopur (Raj.).

3. Pinky Agarawal W/o Chandra Prakash Agarwal, Aged About 38 Years, Resident Of Choudhary Mohalla, City Sawai Madhopur (Raj.).

----Defendants-Petitioners Versus

[2023:RJ-JP:23412] (2 of 14) [CR-87/2022]

1. Smt. Kushalkanwar D/o Late Shri Onkar Singh, Resident Of Jatwada Khud, Sawai Madhopur At Present Resident Of Village Sapla, Tehsil Chaksu, District Jaipur (Raj.).

......Plaintiff-Respondent

2. Smt. Rajeshwari Devi D/o Late Shri Onkar Singh, Aged About 53 Years, Resident Of Jatwada Khurd, Sawai Madhopur At Present Resident Of Sultanpur Post Nizampura, Tehsil Lalsot, District Dausa (Raj.).

3. State Of Rajasthan, Through Sub- Registrar, Sub-

Registrar Office, Sawai Madhopur (Raj.).

                                                        ----Proforma-Respondents


For Petitioner(s)              :     Mr. Prem Shanker Sharma with
                                     Mr. G.L. Gour &
                                     Mr. Surendra Sharma
For Respondent(s)              :     Mr. Bipin Gupta
                                     Mr. Jag Mohan Saxena
                                     Mr. Dharmendra Pareek



       HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

                               Judgment / Order

15/09/2023

S.B. Civil Revision Petition No. 87/2022:

This revision petition is directed against the order dated

22.03.2022 passed by the learned Additional District Judge,

Sawaimadhopur (for brevity, "the learned trial Court") in Civil Suit

No.13/2019 whereby, an application filed by the

petitioners/defendants no.1 to 3 (for brevity "the defendants no.1

to 3") under Order 7 Rule 11 CPC has been dismissed.

The relevant facts in brief are that the respondent

no.1/plaintiff (for brevity, "the plaintiff") filed a suit for declaration

and permanent injunction stating therein that after death of her

father Onkar Singh, a part of subject agricultural land as described

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in Para no.1 of the plaint situated in Village Jatwada Khurd,

Sawaimadhopur, was mutated in her favour vide mutation no.472

dated 30.08.2010. It is averred that under undue pressure

exerted by her sister-in-law on her mother, she executed a release

deed dated 20.10.2010 of her share in the subject land in favour

of her mother Smt. Munni Devi seeking cancellation whereof, she

has filed a Civil Suit No.112/2018 in the Court of Civil Judge,

Sawaimadhopur as also a revenue suit in the Court of Sub-

Divisional Officer, Sawaimadhopur and an appeal against the

mutation entry in the Court of District Collector. It was stated that

after death of her mother, she came to know that the entire land

has been got mutated by her sister-in-law in her favour on the

basis of a forged and fabricated release deed dated 29.10.2010

allegedly executed by her mother. It is averred that for

cancellation of this release deed also, a prayer has been made in

the Civil Suit No.112/2018 and in the revenue suit filed in the

Court of Sub-Divisional Officer, Sawaimadhopur. It was alleged

that the defendant no.4/respondent no.4 has executed a sale deed

dated 25.07.2014 of a part of subject agricultural land in favour of

the defendants no.1 to 3, which was a sham sale deed without

delivery of its possession to the purchaser. Seeking a decree of

declaration that the sale deed dated 25.07.2014 was null and void

against her rights with a further prayer for the decree of

permanent injunction, the suit has been filed. Therein, the

defendants no.1 to 3 filed an application under Order 7 Rule 11

CPC raising objection as to its maintainability in view of Section

207 of the Rajasthan Tenancy Act, 1955 (for brevity, "the Act of

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1955"). The application has been dismissed by the learned trial

Court vide order dated 22.03.2022, impugned herein.

Assailing the order, learned counsel for the defendants no. 1

to 3 submits that the learned trial Court did not appreciate that

the suit filed by the plaintiff for declaration and permanent

injunction was not maintainable in view of provisions of Section

207 of the Act of 1955. He submits that although, it is claimed in

the plaint that she was co-khatedar of the subject agricultural

land; but, indisputably, it was not recorded in her khatedari after

execution of the release deed dated 30.08.2010 by her of her

share in the subject agricultural land in favour of Smt. Munni Devi

based whereupon, mutation was recorded in the name of her

mother. He, therefore, prays that the civil revision petition be

allowed and the order dated 22.03.2022 be quashed and set aside

and the plaint be rejected. He, in support of his submissions,

relies upon the judgment of the Hon'ble Apex Court of India in

case of Pyarelal Vs. Shubhendra Pilania (Minor) Through

Natural Guardian (Father) Shri Pradeep Kumar Pilania &

Ors.: (2019) 3 SCC 692.

Per contra, learned counsel for the plaintiff would submit that

since, she is the recorded khatedar of the subject agricultural

land, the suit filed by her for declaration and permanent injunction

is maintainable. He submits that the judgment in case of Pyarelal

(supra) is inapplicable in the present case inasmuch as therein,

the plaintiff was not recorded as khatedar of the agricultural land.

He further submits that during pendency of the suit, her appeal

against mutation entry has been allowed and her name has been

mutated in the Jamabandi. Referring to the provisions of Section

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207 of the Act of 1955 and the III Schedule, he would submit that

since, the suit seeking a decree of declaration with regard to a

registered deed being null and void, does not find mention therein,

the suit is maintainable. He, therefore, prays for dismissal of the

revision petition.

In rejoinder, learned counsel for the defendants no.1 to 3

submits that order of the District Collector cancelling the mutation

has been stayed by the Board of Revenue, Ajmer (for brevity,

"BoR") vide order dated 08.07.2021 in the revision petition

preferred by them against the order of the District Collector.

Heard. Considered.

The learned trial Court has dismissed the application filed by

the defendants no.1 to 3 on the premise that the plaintiff has

stated in Para no.2 of the plaint that she has already filed a civil

suit seeking cancellation of the release deed dated 20.10.2010

and she has not sought any declaration of her khatedari rights in

the subject land in any of the suits. It has further been observed

by the learned trial Court that since, in the written statements

filed by the defendants, all the objections as raised in the

application under Order 7 Rule 11 CPC, have already been taken,

the same would be decided after framing the issue. However, this

Court is not inclined to concur with reasonings assigned by the

learned trial Court.

Although, in Para no.6 of the plaint, it is claimed that the

plaintiff is khatedar of the subject land which is not partitioned till

date; but, it is also stated in the plaint that she had executed a

release deed dated 30.08.2010 of her share in the agricultural

land in favour of her mother Smt. Munni Devi who, in turn had

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executed a release deed dated 29.10.2010 in favour of her sister-

in-law Smt. Vimlesh. It has further been averred that seeking

cancellation of the release deed dated 30.08.2010 executed by her

and the forged and fabricated release deed dated 29.10.2010

allegedly executed by her mother, she has already filed a civil suit

as also a revenue suit and an appeal against the mutation entry

based upon such release deed(s). It is trite law that while

adjudicating upon maintainbility of a suit, its contents should not

be read in isolation or out of context; but, harmoniously and its

nature/maintainability has to be assessed on its meaningful

reading. If the instant plaint is examined on the aforesaid

touchstone, it is revealed that on the day it was presented, the

plaintiff was not the recorded khatedar of the land; rather, on the

strength of a release deed executed by her of her entire share in

the subject agricultural land in favour of her mother, she was

divested of her right in the subject agricultural land. The question

whether in absence of her khatedari rights in the subject land, the

suit for declaration and permanent injunction is maintainable or

not, finds answer in case of Pyarelal (supra), wherein, the

Hon'ble Supreme Court of India, taking into consideration the

provisions of the Act of 1955, held as under:

"22. The appellant has prayed that the gift deed dated 10 February, 2011 be declared void to the extent of the share claimed by the appellant and that respondent Nos. 1 to 5 be restrained from alienating the share of the appellant.

The civil court may decree the relief prayed only if it is first determined that the appellant is entitled to khatedari rights in the suit property. Under the provisions of the Tenancy Act, the jurisdiction to declare khatedari rights vests exclusively with the revenue courts. Only after such determination may

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the civil court proceed to decree the relief as prayed. The explanation to Section 207 clarifies that if the cause of action in respect of which relief is sought can be granted only by the revenue court, then it is immaterial that the relief asked from the civil court is greater than, or in addition to or not identical with the relief which the revenue court would have granted. In view of this matter, the civil court may not grant relief until the khatedari rights of the appellant have been decreed by a revenue court.

23. A claimant whose khatedari rights have been decreed by a revenue court is however on a different footing from a claimant whose khatedari rights are pending adjudication by a revenue court. Where the khatedari rights are yet to be decreed, a claimant must first approach the revenue courts. The relief to declare the gift deed void and to restrain respondents Nos. 1 to 5 from interfering with or alienating the property vesting in a civil court may be sought for in a suit by a claimant in whom khatedari rights have been decreed by a revenue court.

24. In Ram Vs. Addl. District Judge (2001) 3 SCC 24, a suit was filed before the civil court for the cancellation of a sale deed of an agricultural land on the grounds of fraud and impersonation. The defendant contended that the suit is barred by Section 331 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 which reads thus:

"331. Cognizance of suits etc. under this Act. - (1) Except as provided by or under this Act, no Court other than a Court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908), take cognizance of any suit, application, or proceedings mentioned in Column 3 thereof or of a suit, application or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application;

x x x Explanation.- If the cause of action is one in respect of which relief may be granted by the revenue Court, it is immaterial that the relief asked for from the civil Court

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may not be incidental to that which the revenue Court would have granted."

25.The question before this court was whether a recorded tenure-holder having prima facie title in his favour and in possession was required to file a suit in the revenue court, or where the civil court had jurisdiction to entertain and decide the suit seeking relief of cancellation of a void document. Upholding the jurisdiction of civil court to try the suit, a two judge Bench of this Court differentiated between a recorded tenure holder, and an unrecorded tenure holder with the following observations:

"7. ...we are of the opinion that where a recorded tenure holder having a prima facie title and in possession files suit in the civil court for cancellation of sale deed having been obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the revenue court, the reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land. The position would be different where a person not being a recorded tenure holder seeks cancellation of sale deed by filing a suit in the civil court on the ground of fraud or impersonation. There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the revenue court, as the sale deed being void has to be ignored for giving him relief for declaration and possession."

26. Though the above principles emerge in the context of the bar under Section 331 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, the logic of the judgment extends to the bar under Section 207 read with Section 256 of the of the Tenancy Act. A recorded khatedar stands on a different footing compared to a claimant seeking a decree of their khatedari rights. A claimant seeking a decree of khatedari rights is barred from filing a suit in the civil court prior to their khatedari right being decreed by a

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revenue court when the relief sought for by the civil court includes a determination of khatedari rights.

27. In the present case, the High Court has proceeded on the basis that the suit seeking a declaration of the gift deed relating to disputed agricultural land situated in Sikar as void and restraining Respondent Nos. 1 to 5 from transfer or sale of the agricultural land before the civil court is squarely covered by the bar to the jurisdiction of the civil court under the provisions of the Tenancy Act. The claim of the appellant to khatedari rights is pending adjudication by a revenue court which has the exclusive jurisdiction to adjudicate upon such a claim. The appellant has no right to seek relief before the civil court without first getting his khatedari rights decreed by the revenue court.

28. For the above reasons, we find that there is no merit in the challenge preferred by the appellant to the impugned judgment and order of the High Court. The appeals shall, accordingly stand dismissed. There shall be no order as to costs."

In the aforesaid case, it has been held that in absence of

khatedari rights of the plaintiff in the subject agricultural land, his

suit for declaration qua a registered deed is not maintainable. This

ratio in this judgment, squarely applies to the instant case.

Although, it is observed in case of Pyarelal (supra) that the

plaintiff therein had filed a suit in the revenue Court seeking

declaration of their khatedari right; but, absence of any suit by the

plaintiff herein would not make any difference.

A coordinate bench of this Court has, in case of Vijay Singh

& Ors. vs. Buddha & Ors.-MANU/RH/1111/2012 involving

almost identical controversy, held as under:

"10. Section 207 of the Rajasthan Tenancy Act provides that all suits and applications of the nature specified in Schedule-III shall be heard and determined

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by a Revenue Court and further it has been provided that no Court other than a revenue court shall take cognizance of any such suit or application or of any suit or application based on a cause of action in respect of which any relief could be obtained by means of any such suit or application. The explanation appended to Section 207 of the Act provides that if the cause of action is one in respect of which relief might be granted by the revenue court, it is immaterial that the relief asked for from the Civil Court is greater than, or additional to or is not identical with that which the revenue court may possibly grant. The term 'cause of action' though no where defined is now very well understood. It means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It follows that in each and every case the cause of action for filing of the suit shall have to be strictly scrutinised in order to determine whether the suit is exclusively cognizable by a revenue court or is impliedly cognizable only by a revenue court or is cognizable by a Civil Court. If more than one reliefs are claimed in the suit, then the jurisdiction of the civil or revenue courts to entertain the suit shall be determined on the basis as to what is the real or substantial or main relief claimed in the suit. If the main relief is cognizable by a revenue court, the suit would be cognizable by the revenue court only and the fact that the ancillary reliefs are cognizable by the civil court would be immaterial for the determination of the proper forum for filing the suit. On the other hand, if the main relief is cognizable by a civil court, the suit would be cognizable by civil court only and ancillary reliefs are immaterial.

13. As whole of the land in dispute was never entered in the name of father of appellants in the relevant revenue record and after his death even in the name of appellants and name of Shri Ladu always remained

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entered in the record and only one-half share of the land was entered in the name of Shri Nizam and thereafter in the name of appellants, I am of the considered view that unless the appellants obtain a decree of declaration to the effect that by means of sale deed dated 3.11.1959 khatedari rights in whole of the land accrued initially in favour of late Shri Nizam and after his death in their favour and name of Shri Ladu remained wrongly entered in the revenue record and thereafter name of respondents No. 1 to 7 was also wrongly entered, the sale deed dated 18.5.2010 executed by respondents No. 1 to 7 in favour of respondent No. 8 to the extent of one-half share of Shri Ladu, can not be held to be without any authority and void, ineffective and inoperative to the rights of appellants and liable to be canceled. It is an admitted fact that Shri Ladu also was khatedar-tenant of one-half share of the land in dispute, therefore, it is for the appellants to prove that he died issue-less in the year 1958 and his share of the land also devolved on respondent Shri Buddha and late Shri Mangla and they were entitled to sale one-half share of Shri Ladu also to the father of appellants. The appellants can have a right to get the sale deed dated 18.5.2010 canceled only if it is found by a competent court that initially their father Shri Nizam was khatedar-tenant and after his death appellants became khatedar tenant of whole of the land in dispute. It is therefore, more than clear that the main or substantial or real relief claimed by the appellants is that they may be declared khatedar-tenant of whole of the land. As the land in dispute is an agricultural land, such declaration can be granted only by a revenue court. Section 88 of the Rajasthan Tenancy Act provides for filing of a suit for declaration by a person claiming to be a tenant in respect of his right as a tenant or for declaration of his share in the joint tenancy. The suit

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covered by Section 88 of the Act is included at Item No. 5 in the IIIrd Schedule appended to the Tenancy Act. Thus, in respect of a matter covered by the aforesaid item in the IIIrd Schedule the revenue court alone has exclusive jurisdiction to entertain a suit for declaration of the plaintiffs' right as a tenant of agricultural land. According to provisions of Section 207 of the Act, the jurisdiction of the revenue court to try a suit of the nature specified in Item No. 5 relating to agricultural tenancy would be based on the cause of action for filing such suit. In the facts of the case the relief regarding cancellation of sale deed dated 18.5.2010 at the most can be said to be an ancillary/consequential relief to the main relief of declaration of khatedari rights. In the light of the well settled legal position, it cannot be disputed that if the main relief can be granted only by a revenue court, it can grant ancillary/ consequential relief also. In my opinion, if the competent revenue court comes to a conclusion that the appellants are entitled to be declared khatedari-tenant of whole of the land in dispute, it can also held that the sale deed dated 18.5.2010 is without any legal authority and void, ineffective and inoperative to the rights of the appellants and it is liable to be cancelled." (Emphasis mine)

If maintainability of the instant civil suit is examined in the

backdrop of the aforesaid judgments, it is apparent that the plaint

does not reveal the plaintiff to be recorded khatedar of the subject

agricultural land; rather, it reflects that she has no right in it by

virtue of execution of a release deed of her entire share in it in

favour of her mother for cancellation of which, she has already

filed a civil suit as also a revenue suit. In view thereof, a clear

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picture which emerges is that the plaintiff is neither khatedar of

the subject agricultural land nor, has any subsisting right in it in

absence whereof, the suit for declaration of the sale deed dated

25.07.2014 executed by the defendant no.4 in favour of the

defendants no.1 to 3 and the decree of permanent injunction

cannot be granted by the Civil Court unless the plaintiff is able to

get the release deed cancelled from the competent Court and get

herself declared khatedar tenant of the subject land.

Submissions of the learned counsel for the plaintiff with

regard to cancellation of the mutation by the District Collector,

does not merit acceptance. Indisputably, the order dated

22.07.2019 passed by the District Collector in an appeal preferred

by the plaintiff against the mutation entry has been stayed by the

BoR in a revision petition preferred by the defendants vide order

dated 08.07.2021. Even otherwise also, the civil suit as also the

revenue suit filed by the plaintiff seeking cancellation of the

release deed of her entire share in the subject agricultural land

are still subjudice.

Merely because the defendants have filed the written

statements taking objection as to maintainability of the suit, it

could furnish no ground to the learned trial Court to reject the

application under Order 7 Rule 11 CPC for such an application is

maintainable at any stage of the suit and the plaint deserves to be

rejected if it appears to be barred by law from the averments

made therein. Therefore, the order dated 22.03.2022 cannot be

sustained in the eye of law.

Resultantly, this civil revision petition is allowed. The order

dated 22.03.2022 is quashed and set aside. The application filed

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by the defendants under Order 7 Rule 11 CPC is allowed and the

plaint stands rejected.

S.B. Civil Revision Petition No. 112/2022:

Learned counsels for the respective parties are in agreement

that except the date of the registered sale deed executed by the

respondent no.4/defendant no.4 in favour of the

petitioners/defendants no.1 to 3 being different, the rest of the

facts in the instant case are identical to that in S.B. Civil Revision

Petition No.87/2022 which has been allowed by this Court vide a

separate order.

In view thereof, this revision petition is also allowed.

(MAHENDAR KUMAR GOYAL),J

Sudha/07-08

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