Baabu Bhai vs Chand Khan
2023 Latest Caselaw 7378 Raj

[2023:RJ-JD:30355]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 274/2022

1. Baabu Bhai S/o Ahmad Gafar Ji, Aged About 65 Years, B/c Muslim, R/o Ghoshi Mohalla, Abu Road, Tehsil Abu Road, District Sirohi.

2. Lal Mohammad S/o Ahmad Gafar Ji, Aged About 49 Years, B/c Muslim, R/o Ghoshi Mohalla, Abu Road, Tehsil Abu Road, District Sirohi.

3. Alpudeen S/o Ahmad Gafar Ji, Aged About 45 Years, B/c Muslim, R/o Ghoshi Mohalla, Abu Road, Tehsil Abu Road, District Sirohi.

4. Smt. Sugra Bano (since deceased) W/o Late Shri Ahmad Gafar Ji, by caste Muslim, R/o Ghosi Mohalla, Abu Road, Tehsil Abu Road, District Sirohi.

----Appellants Versus

1. Chand Khan S/o Mubarak Khan Ji, Aged About 70 Years, B/c Muslim, R/o Anadra, Tehsil Reodar, District Sirohi.

2. Gramdan President Village Anandra, Tehsil Reodar, District Sirohi.

                                                                   ----Respondents


For Appellant(s)             :    Mr. Sunil Joshi
                                  Mr. S.P. Joshi



              HON'BLE MS. JUSTICE REKHA BORANA

                                   Judgment

19/09/2023

1. The present second appeal has been preferred against the

judgment and decree dated 30.08.2022 passed by the District

Judge, Sirohi in Civil Regular First Appeal No.2/2021 (CIS

No.02/2021) whereby the judgment and decree dated 18.02.2021

passed by the Civil Judge, Reodar, Sirohi in Civil original Suit

No.1/2015 has been affirmed. The learned trial Court vide its

judgment and decree dated 18.02.2021 proceeded on to dismiss

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the suit as preferred by the plaintiffs for declaration of the sale

deed to be void and for declaratory and permanent injunction on

merits as well as on the ground of same being barred by

limitation.

2. The dispute in question pertains to a land situated in a

Gramdan Village named Anadra in tehsil Reodar, District Sirohi.

The plaintiffs alleged that Chand Khan, their uncle, fraudulently,

with aid of Gramdan Chairman/President, got a sale deed dated

01.01.1989 executed in his favour vide which the share of Ahmed

Gafar, father of the plaintiffs was shown to be sold to him. It was

averred that defendant Chand Khan fraudulently got the sale deed

executed in his favour without the knowledge of Ahmed Gafar and

hence, the suit for declaration of sale deed dated 01.01.1989 to

be void and for injunction was filed on 07.01.2015. It was averred

in the suit that Gram Sabha did not have any right to register the

sale deed and hence the sale deed was void ab initio and could not

have affected any rights of the plaintiffs.

3. The case of defendant no.1 Chand Khan was that one of the

brothers Ahmed Gani, vide a gift deed, transferred his share in

favour of Chand Khan and the other brother Ahmed Gafar (father

of the plaintiffs), vide registered sale deed dated 01.01.1989, sold

out his share to him. He further averred that the sale deed was

registered by the Gram Sabha in terms of the Rajasthan Gramdan

Act, 1971 (hereinafter referred to as 'the Act of 1971') and that he

was in possession of the property since the date of sale.

4. Before proceeding further, it is relevant to note that in the

suit, an application under Order VII Rule 11 of the Code of Civil

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Procedure, 1908 (CPC) was filed by the defendant with an

averment firstly that the dispute pertains to an agricultural land

and hence the Civil Court would have no jurisdiction to entertain

the suit and secondly that the dispute was governed by the Act of

1971 and Section 46 of the said Act provides that neither the Civil

Court nor the Revenue Court has jurisdiction to entertain the

dispute.

The application under Order VII Rule 11, CPC was rejected

by the learned trial Court vide order dated 16.11.2017.

5. Learned trial Court, ultimately, proceeded on to dismiss the

suit on merits as well as on the ground of the same being barred

by limitation. Issue No.7 pertaining to limitation was decided in

favour of defendant No.1 and against the plaintiffs. Findings of the

trial Court were affirmed by the appellate Court vide judgment

and decree dated 30.08.2022 against which the present second

appeal has been preferred.

6. The first and foremost ground raised by learned counsel for

the appellants before this Court is that the learned trial Court

could not have entertained the suit itself, the same being barred

by law i.e. Section 46 of the Act of 1971. Section 46 of the Act of

1971 provides that no Civil or Revenue Court shall have

jurisdiction in respect of any matter which is to be decided by any

officer or authority under the Act. By virtue of Section 46, the Civil

Court had no jurisdiction and hence the decrees as passed by

Courts below are a nullity. Once it is held that the Court lacked

inherent jurisdiction to entertain the suit, the decree being a

nullity, could be declared to be so at any stage.

[2023:RJ-JD:30355] (4 of 10) [CSA-274/2022]

Learned counsel submitted that even if the ground of the

Court lacking jurisdiction was not raised before the Courts below,

the same can very well be raised before this Court as the same

goes to the root of jurisdiction. Learned counsel further submitted

that the question whether the Civil Court has the jurisdiction to

try/entertain the matters pertaining to the Act of 1971 does arise

in the present appeal and therefore, the said question being a

substantial question of law, be framed for adjudication and the

appeal be admitted.

7. Learned counsel also submitted that in the present matter,

the Court below ought to have exercised its powers under Order

VII Rule 10, CPC and ought to have returned the plaint to the

plaintiffs.

In support of his submissions, learned counsel relied upon

the following judgments:

(i) Kiran Singh and Ors. vs. Chaman Paswan and Ors.; AIR 1954 SC 340

(ii) Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rehman & Ors.; (1970) 1 SCC 670

(iii) Sunder Dass vs. Ram Prakash; (1977) 2 SCC 662

(iv) Pyarelal vs. Shubhendra Pilani & Ors.; (2019) 3 SCC

(v) Sua Lal & Ors vs State of Rajasthan & Ors; SB CWP NO. 698/2015 (Rajasthan High Court) decided on 02.03.2016

(vi) Gangabisan Mayaramji Paliwal vs Sindi Vividha Karyakari Sahakari Society Ltd. Sindi; Second Appeal No.447/1998 (Bombay High Court) decided on 28.07.2014

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(vii) Chandra Prem Shah and Ors. vs. K. Raheja Universal

Pvt. Ltd. & Ors.; 2015 (5) ABR 821.

8. Heard learned counsel and perused the material available on

record.

9. An interesting position has arisen in the present matter. The

present suit was preferred by the plaintiffs before the Civil Court

wherein an objection was raised by the defendant that the same

would not be maintainable before the Civil Court in view of the

provisions of the Act of 1971. The plaintiffs opposed the said

submission and averred that the suit would be maintainable before

the Civil Court only and consequently, the application under Order

VII Rule 11, CPC as preferred by the defendant was rejected.

After the suit of the plaintiffs and the first appeal thereof

having been dismissed, a ground has now been raised in the

present second appeal by counsel for the appellants - plaintiffs

that the Civil Court did not have the jurisdiction to entertain the

present suit in terms of the Act of 1971. Meaning thereby, the

plaintiffs, who had specifically averred the suit to be maintainable

before a Civil Court, have now taken a U-turn and averred that the

decrees in question are void, the same having been passed by the

Civil Court which lacks inherent jurisdiction to entertain the

present suit.

10. The law on the point and the judgments as relied upon by

learned counsel for the appellants which lay down the ratio that an

issue pertaining to the inherent lack of jurisdiction can be raised

and entertained by the Court at any stage, even at the stage of

execution, is well settled. There is no dispute on the settled law

[2023:RJ-JD:30355] (6 of 10) [CSA-274/2022]

that a decree passed by a Court without jurisdiction is nullity and

that its invalidity could be set up whenever and wherever it is

sought to be enforced or relied upon, even at the stage of

execution and even in collateral proceedings (Kiran Singh and

Ors. Vs. Chaman Paswan and Ors., AIR 1954 SC 340).

11. But then, while propounding the said ratio, the Hon'ble Apex

Court in the same judgment, held that even if parties are held

entitled to raise the objection for the first time in the appellate

Court, even then, "the requirement as to prejudice has to be

satisfied, and the party who has resorted to a forum of his

own choice on his own valuation cannot himself be heard

to complain of any prejudice. Prejudice can be a ground for

relief only when it is due to the action of another party and

not when it results from one's own act. Courts cannot

recognise that as prejudice which flows from the action of

the very party who complains about it. Even apart from

this, we are satisfied that no prejudice was caused to the

appellants by their appeal having been heard by the

District Court. There was a fair and full hearing of the

appeal by that Court; it gave its decision on the merits on a

consideration of the entire evidence in the case, and no

injustice is shown to have resulted in its disposal of the

matter. The decision of the learned Judges that there were

no ground for interference under section 11 of the Suits

Valuation Act is correct."

12. As observed in the preceding paras, the present is a matter

wherein an objection was raised by the defendant that the suit is

[2023:RJ-JD:30355] (7 of 10) [CSA-274/2022]

not maintainable before the Civil Court which was objected to by

the plaintiffs and now the plaintiffs, after having lost before both

the Courts, have raised a plea that the Civil Court did not have

jurisdiction to entertain the suit in question. This Court is of the

clear opinion that firstly, the suit in question did not fall within

the preview of Section 46 of the Act of 1971 and secondly, the

ground as raised by counsel for the appellants cannot be held to

be tenable because of following reasons :

(i) The ground was raised by the defendant at the inception of the

suit itself vide an application under Order 7 Rule 11, CPC which

was opposed by the plaintiffs and the same was decided against

the defendant. The Court below held the suit to be maintainable

before a Civil Court. The said order dated 16.11.2017 was never

challenged by the plaintiffs, rather was supported. As held in

Kiran Singh's case (supra) the plaintiffs who resorted to a

forum of their own choice cannot now be heard to complain of any

prejudice. The impugned judgment and decree in question is a

result of the suit instituted by the plaintiffs themselves before a

Civil Court and now they cannot be permitted to pray that the said

judgment and decree is void. The plaintiffs cannot be held to be

prejudiced in any manner so far as the issue of jurisdiction is

concerned, as the same was due to their own action and as held

by the Hon'ble Apex Court, the Courts cannot recognise a

prejudice which flows from the action of the very party who

complains about it.

[2023:RJ-JD:30355] (8 of 10) [CSA-274/2022]

(ii) Coming on to the question whether the suit in question even

fall within the preview of Section 46 of the Act of 1971. Section 46

reads as under :

"46. Bar of jurisdiction.- (1) Save as otherwise provided in this Act, no civil or revenue court shall have jurisdiction in respect of any matter which is required to be settled, decided or dealt with by any officer or authority under this Act.

(2) No order made by any such officer or authority under this Act shall be called in question in any court."

A bare perusal of above provision makes it clear that the

jurisdiction of civil or revenue Court is barred in matters which

have been required to be settled by any officer or authority under

this Act. Firstly, no power or authority to cancel any sale deed

registered by the Gram Sabha itself has been given to Gram

Sabha under the Act of 1971. Secondly, even if the said power is

assumed to be incorporated by virtue of Section 28 of the Act of

1971, the same also provides only for cacellation of an allotment if

it is in contravention to the provision of clause (b) of Section 27 of

the Act of 1971. Clause (b) of Section 27 of the Act of 1971

provides as under :

"(b) The Gramdan Kishan shall not transfer his interest in the land, without the previous approval in writing of the Gram Sabha and except -

(i) to a person who has joined the Gramdan Community in respect of the village in which the land is situate on the terms and conditions agreed upon between them."

[2023:RJ-JD:30355] (9 of 10) [CSA-274/2022]

Meaning thereby, the only two eventualities when an

allotment can be cancelled by the Gram Sabha are firstly, when

it has been transferred without the previous approval of the Gram

Sabha and secondly, if it has been transferred to a person who is

not a member of Gram Sabha Community.

As is evident on record, it is the case of the plaintiffs that the

sale deed was executed and registered fraudulently in connivance

with the President/Chairman of the Gram Sabha. Meaning thereby,

the sale deed in question was registered by the Gram Sabha, that

is, the transfer of the land was with consent of the Gram Sabha. It

is also evident on record that the land was transferred to brother

of the seller who admittedly, is the member of the Gram Sabha

Community. It is nowhere the case of the plaintiffs that the

purchaser (defendant no.1) was not the member of Gramdhan

Community. It was rather the contention of defendant no.1 that

the plaintiffs were not the residents of Gramdhan Community as

they were residents of Abu Road. The fact that the plaintiffs are

the residents of Abu Road and the defendant is the resident of

Gram Dhan Village is crystal clear from the cause title of the

present appeal itself which reflects the appellants to be the

residents of Abu Road and respondent No.1 to be resident of

Village Anadra.

(iii) Further, even if it is assumed that the Gram Sabha, in terms

of Act of 1971, had the power/authority to cancel the document in

question, it is nowhere the case of the plaintiffs that any such

application was even moved before the Gram Sabha or any such

prayer for cancellation of the sale deed in question was made to

[2023:RJ-JD:30355] (10 of 10) [CSA-274/2022]

Gram Sabha and the same was refused/rejected. The plaintiffs,

who did not even choose to avail the remedy, if any, before the

Gram Sabha and preferred a suit directly before the Civil Court

without availing the said remedy, cannot now be held entitled to

plead that the Civil Court did not have the jurisdiction to entertain

the suit.

(iv) Therefore, even on merits, it is clear that firstly, the transfer

of the land was not in contravention of any provision of Gram

Dhan Act; secondly, no application for cancellation of any

allotment was ever moved by the plaintiffs before the Gram

Sabha; thirdly, the transfer being not in contravention of Section

27 of the Act, could not have been cancelled by the Gram Sabha

by virtue of Section 28 and fourthly, the relief of cancellation of

sale deed as prayed for in the present suit does not fall within the

domain of Act of 1971 and hence the bar as provided under

Section 46 would not govern the present dispute.

13. No other ground has been raised before this Court.

14. In view of above analysis and observations, this Court does

not find any substantial question of law to have arisen in the

present appeal and the same is therefore, dismissed.

15. The stay petition and the pending applications, if any, also

stand dismissed.

(REKHA BORANA),J Vij/-

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