Rajasthan High Court - Jodhpur
Prem Bai And Ors vs Smt Jatan Bai And Ors ... on 2 January, 2025
Bench: Pushpendra Singh Bhati, Rekha Borana
[2025:RJ-JD:152-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 547/2015
Prem Bai and Ors
----Appellants
Versus
Smt Jatan Bai and Ors
----Respondents
For Appellant(s) : Mr. Chaitanya Gahlot with
Ms. Vandana Prajapati,
Mr. Bhawani Singh &
Mr. Amit Kumar Purohit
For Respondent(s) : Mr. Sandeep Shah Sr. Adv. assisted by
Mr. Abhimanyu Singh Rathore
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MS. JUSTICE REKHA BORANA
Order
02/01/2025
1. The present special appeal has been filed against the
judgment dated 04.05.2015 passed by learned Single Judge in
S.B. Civil Writ Petition No.417/1996 whereby the writ petition as
preferred by the petitioners against order dated 11.01.1996
passed by the Board of Revenue, was dismissed.
2. A brief history of the matter is as under:
i. A suit for permanent injunction was filed under Section 188
of the Rajasthan Tenancy Act, 1955 (hereinafter referred to
as, 'the Act of 1955') by one Fateh Lal against his sons and
one Smt. Chunni Bai. The said suit was dismissed on
25.10.1960 because of non-impleadment of Lehar Bai, his
wife in whose favour Fateh Lal had already executed a
document dated 26.12.1958 and had handed over the land
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in question to her for maintenance as she was living
separately from her husband Fateh Lal.
ii. The order dated 25.10.1960 was challenged by Fateh Lal
before the Revenue Appellate Authority, Udaipur (hereinafter
referred to as 'RAA') who vide order dated 06.02.1962
remanded the matter to Sub-Divisional Officer (hereinafter
referred to as 'SDO') with a direction to implead Lehar Bai as
a party respondent to the suit. The order of remand was
affirmed by the Board of Revenue (hereinafter referred to as
'BOR').
iii. In pursuance to the remand order, the SDO, vide judgment
and decree dated 29.04.1967, decreed the suit in favour of
Fateh Lal. The appeal against the said decree also stood
dismissed.
iv. However, the BOR set aside the orders passed by the SDO as
well as the RAA vide its judgment dated 03.01.1968 and
again remanded the matter to SDO with a direction to decide
afresh.
v. Meanwhile, Fateh Lal, vide sale-deed dated 24.06.1967, sold
out the land in question to Sohan Lal son of Magan Lal who
at that point of time, was not aware of pendency of any suit
qua the land in question.
vi. When Sohan Lal subsequently came to know about pendency
of the suit, he filed an application under Order 22 Rule 10,
CPC on 21.08.1969/18.11.1969 for being impleaded in the
suit. The next date fixed in the matter was 26.02.1970.
Before the said application could be decided, an application
for preponing the date in the matter was filed by Fateh Lal
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on 22.01.1970 with a submission that a compromise has
been arrived into between the parties and hence the suit be
decreed in light of the said compromise.
vii. On 29.01.1970, the suit was decreed in terms of the
compromise and as per the decree, the property was to
remain with Lehar Bai and income as received by the
receiver during the said period was directed to be handed
over to Lehar Bai. It is relevant to note here that during this
period, the property in question was in possession of a
receiver.
viii. On coming to know about the above compromise
decree, Sohan Lal filed a suit on 20.04.1971 under Sections
88 & 183 of the Act of 1955 for declaration and possession
with a submission that the compromise decree dated
29.01.1970 was a collusive one obtained fraudulently by
Fateh Lal and Lehar Bai and the same deserves to be declared
void qua him and the possession of the land deserves to be
handed over to him.
ix. The suit as filed by Sohan Lal was decreed in his favour vide
judgment and decree dated 07.04.1980 and the appeal
preferred against the said decree also stood dismissed on
18.05.1985. The second appeal preferred by legal
representatives of Fateh Lal and Lehar Bai also stood
dismissed.
x. It is relevant to note here that at the first instance, there
was a conflict of decision of two members of the Board of
Revenue and hence, the same was referred to a third
member. The third member, vide order dated 11.01.1996,
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agreed with the view of member Mr. Mathew and affirmed the
orders of both the two Courts below.
xi. It is against the said order dated 11.01.1996 that the writ
petition was preferred by the petitioners i.e. legal
representatives of Fateh Lal and Lehar Bai which stood
dismissed vide the judgment impugned dated 04.05.2015.
3. Before the learned Single Judge the following three grounds
were raised on behalf of the petitioners:
i. The suit as preferred by Sohan Lal was not maintainable
before the Revenue Court as it was specifically for a relief of
cancellation of a decree and the said relief could have been
granted only by a Civil Court.
ii. The sale-deed dated 26.04.1967 executed by Fateh Lal in
favour of Sohan Lal was itself void being hit by the provisions
of Section 52 of the Transfer of Property Act, 1882
(hereinafter referred to as, 'the Act of 1882').
iii. Sohan Lal was bound by the compromise decree in terms of
Section 52 of the Act of 1882 as he himself had moved an
application for impleadment in the suit as preferred by Fateh
Lal. He being a party to the suit was bound by the decree
passed in the said suit.
4. The learned Single Judge held all the three grounds as raised
by the petitioners to be not tenable, with an elaborate discussion
on all the said three issues.
5. After hearing both the counsels and perusing the record, this
Court is in complete agreement with the view taken by the learned
Single Judge on all the issues for the following reasons:
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i. As is clear on record and even observed by the learned
Single Judge, the reliefs as prayed for in the suit in question
were firstly, for possession of the property in question
secondly, for declaration of the plaintiff to be the khatedar
of the land in question and thirdly, to hold the compromise
deed to be of no effect qua the plaintiff. The cancellation of
compromise decree dated 29.01.1970 was nowhere prayed
for. Meaning thereby, a prayer for declaration of the
compromise decree to be of no effect qua the plaintiff was
made but no cancellation of the same was prayed for.
ii. As is settled position of law, it is the main relief which
decides the maintainability of the suit before a Court. So far
as the present matter is concerned, evidently the main relief
is for possession of the property in question. The other
reliefs are ancillary reliefs and as per Explanation to Section
207 of the Act of 1955, if the main relief can be granted by
the Revenue Court, it is immaterial that the relief asked for
from the Civil Court is greater than, or addition to, or is not
identical with, that which the Revenue Court could have
granted. Meaning thereby, if the Revenue Court is competent
to grant the main relief, it would be competent to grant the
ancillary reliefs too.
iii. Further, as observed above, it is only a declaration which has
been prayed for in the present suit and as is settled position
of law and as relied upon by the learned Single Judge on the
ratio laid down in the cases of Rukmani vs. Bhola & Ors.;
2012(4) RLW 3050 (Raj.) and Vijay Singh & Anr. vs.
Buddha & Ors.; 2012(4) RLW 2932 (Raj.), once a
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declaration under Section 88 of the Act of 1955 is granted,
prayer for cancellation is not even essential as the document
would automatically be rendered void and ineffective.
iv. Furthermore, in terms of Section 207 of the Act of 1955, all
suits and applications of nature specified in the Third
Schedule are to be heard and determined by a Revenue
Court only. Item No.6 of Third Schedule to the Act of 1955
specifically provides for suits relating to the declaration and
Item No.23A provides for suits for recovery of possession.
Meaning thereby all the reliefs prayed for in the suit
definitely lie within the jurisdiction of the Revenue Court.
v. It is further relevant to note that the defendants, at the very
inception i.e. before the S.D.O., did not even press the
ground of maintainability of the suit before the Revenue
Court. The same was however, emphasized before the
Revenue Appellate Authority and the Board of Revenue but
the said two Courts concurrently held that the suit was
maintainable before the Revenue Court.
6. So far as the issue regarding lis pendens is concerned, as the
learned Single Judge observed and rightly so, the application for
impleadment as filed by Sohan Lal was not even decided and the
suit was decreed on basis of compromise even before decision of
the said application. It cannot therefore be held that Sohan Lal
was a party to the suit and would be bound by the compromise
decree as passed in the said suit.
7. Regarding the applicability of the principle of lis pendens qua
the sale deed dated 26.04.1967, as observed by the learned
Single Judge, for applicability of Section 52 of the Act of 1882, it is
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essential that the right to immovable property is directly and
specifically in question and the same must affect the rights of any
other party thereto under any decree or order which may be made
therein. In the present case, the suit as filed by Fateh Lal was a
simplicitor suit for injunction and there was no issue pertaining to
the ownership or right to the property in question. Even vide
decree dated 29.01.1970, no right of any party was decided and
the suit was simplicitor permitted to be withdrawn by Fateh Lal
and the possession was agreed to be kept with Lehar Bai. Further,
there was no counter-claim by Lehar Bai in the said suit pertaining
to her ownership. Therefore, a simplicitor withdrawal of the suit
without declaration of any right of ownership qua the immovable
property cannot be said to be hit by the provisions of Section 52
of the Act of 1882.
8. Further, all said and done, as been concurrently held by all
the Courts below, the compromise decree dated 29.01.1970 was
obtained by fraud and without any notice to Sohan Lal. Therefore,
in view of the said particular fact also, Section 52 of the Act of
1882 would not apply in the present matter.
9. In view of the above analysis, this Court does not find any
ground to interfere with the impugned judgment dated
04.05.2015 and the present appeal is hence, dismissed.
(REKHA BORANA),J (PUSHPENDRA SINGH BHATI),J
53-T.Singh/-
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