Rajasthan High Court - Jodhpur

Sunil vs Ostwal Phoschem (India) Ltd ... on 6 January, 2025

Author: Rekha Borana

Bench: Rekha Borana

 [2025:RJ-JD:462]

       HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                        JODHPUR
                    S.B. Civil First Appeal No. 215/2023

  1.      Sunil S/o Manohar Lal Sanadhya, Aged About 42 Years,
          Sanadhya Bhawan, Bhopalganj Bhilwara(Raj)
  2.      Brijesh Kumar S/o Manohar Lal Sanadhya, Aged About 47
          Years, Sanadhya Bhawan, Bhopalganj Bhilwara(Raj)
  3.      Yogesh Kumar S/o Manohar Lal Sanadhya, Aged About 44
          Years, Sanadhya Bhawan, Bhopalganj Bhilwara(Raj)
  4.      Anil S/o Manohar Lal Sanadhya, Aged About 38 Years,
          Sanadhya Bhawan, Bhopalganj Bhilwara(Raj)
  5.      Smt Sheela W/o Manohar Lal Sanadhya, Aged About 65
          Years, Sanadhya Bhawan, Bhopalganj Bhilwara(Raj)
                                                                      ----Appellants
                                       Versus
  1.      Ostwal Phoschem (India) Ltd, Through Its Director Shri
          Rajendra Prasad Ostwal S/o Haraklal Ostwal R/o H-46
          Azad Nagar Bhilwara
  2.      Pankaj Ostwal S/o Mahendra Kumar Ostwal, R/o 5-O-2,
          R.c. Vyas Colony Bhilwara
  3.      Manohar      Lal    S/o     Prabhu        Lal     Sanadhya,     Sanadhya
          Bhawan, Bhopalganj Bhilwara(Raj)
  4.      State Of Rajasthan, Through Land Holdar Tehsildar,
          Bhilwara
                                                                    ----Respondents


  For Appellant(s)           :     Mr. Rishabh Shrimali
  For Respondent(s)          :     Mr. Rakesh Chotia



               HON'BLE MS. JUSTICE REKHA BORANA

Reportable                         Judgment

 06/01/2025

1. The present regular first appeal has been preferred against

the order dated 15.04.2023 passed by the Additional District

Judge No.3, Bhilwara in Civil Original Suit No.05/2021 whereby

the application under Order VII Rule 11 of Code of Civil Procedure,

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1908 ('CPC') as filed on behalf of the defendants had been allowed

and as a consequence, the suit for cancellation of sale-deeds,

declaration of khatedari rights and permanent injunction as filed

on behalf of the plaintiffs stood dismissed. A decree has been

drawn accordingly.

2. The averments made in the plaint were to the effect that the

land in question was an ancestral and joint Hindu family property

and the plaintiffs being coparceners were entitled for their

respective shares in the suit property. However, defendant No.3 -

Manoharlal, father of plaintiffs No.1 to 4 and husband of plaintiff

No.5, sold out the said property to defendants No.1 & 2 without

there being any necessity and without he being solely entitled to

sell out the same.

3. With the above pleadings, prayers to cancel the sale deeds

dated 21.08.2020; for possession of the land in question; for

declaration of the land to be the joint Hindu family property and

further to be the khatedari land of the plaintiffs; and for

permanent injunction, were made in the suit.

4. An application under Order VII Rule 11, CPC in the said suit

was filed on behalf of defendants No.1 & 2 on the grounds, firstly

that the suit in question is effectively for declaration of khatedari

rights qua an agricultural land and hence, the same was not

maintainable before a Civil Court. Secondly, no suit for declaration

was even maintainable in terms of Section 8 of the Hindu

Succession Act, 1956 at the behest of son and wife of defendant

No.3 as defendant No.3 himself was alive. Thirdly, the land in

question was recorded in the revenue records in sole khatedari of

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defendant No.3 and hence, he being the sole owner/khatedar was

legally entitled to sell out the same. Fourthly, even if it is assumed

that the property in question was a joint Hindu family property,

defendant No.3 sold out the same being the Karta of the family

and hence, the plaintiffs had no right to challenge the same and

more so, when defendant No.3 himself was alive. Lastly, the land

in question was not an ancestral property but the same was of

sole ownership of defendant No.3 and the plaintiffs, in collusion

with defendant No.3, malafidely filed the present suit to somehow

deprive the defendants of their legitimate rights.

5. No reply to the application was filed on behalf of the

plaintiffs.

6. Learned Trial Court proceeded on to allow the application

while relying upon the judgments in Ramswaroop & Anr. Vs.

Smt. Kesar & Ors.; 2015 WLC (Raj.) UC 563 and Amrit Lal &

Ors. Vs. Heera Ram & Anr.; 2016 (3) DNJ (Raj.) 1151.

7. Learned counsel for the appellants submitted that firstly, the

suit in question was essentially for cancellation of the registered

sale deeds in terms of Section 31 of the Specific Relief Act, 1963

and hence, it is only the Civil Court which would have the

jurisdiction to entertain the reliefs as prayed for. So far as the

relief for declaration is concerned, the same is an ancillary relief.

Secondly, the reliefs as prayed for in the present suit do not fall

within the ambit of Sections 82 to 91 of the Rajasthan Tenancy

Act, 1955 (hereinafter referred to as 'the Act of 1955') and hence

the reliance of the learned Trial Court on the said provisions was

totally fallacious.

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8. Learned counsel further submitted that in terms of Section 9

of CPC, the Civil Court has jurisdiction to try all suits of civil nature

except the suits which are either expressly or impliedly barred. So

far as the relief for cancellation of sale deeds is concerned, the

same is within the jurisdiction of the Civil Court only and further,

the reliefs for declaration and injunction being not expressly

barred, the Civil Court definitely has the jurisdiction to entertain a

suit pertaining to agricultural land also, if the reliefs for injunction

and declaration are ancillary in nature.

9. Learned counsel further submitted that even otherwise the

sale deeds in question being voidable documents, the suit was

maintainable before a Civil Court only in terms of ratio as laid

down in Hasti Cement Pvt. Ltd., Jodhpur & Anr. Vs. Sandeep

Charan & Ors.; 2018 (2) DNJ (Raj.) 421.

10. Learned counsel lastly submitted that even if the Court

reached to a conclusion that the relief for declaration as prayed

for, could not be granted/entertained, in the alternate, it could

definitely have framed an issue qua the same and could have sent

the same to the Revenue Court for decision thereupon in terms of

Section 242 of the Act of 1955. By any means, the plaint could not

have been rejected.

11. In support of his submissions learned counsel also relied

upon the judgment rendered in Sunil Dhanpat Raj Bhandari &

Anr. Vs. Shakuntala Kumari alias Sangeeta Kanwar Prem

Singh & Ors.; 2018 (3) RLW (Raj.) 2396.

12. Per contra learned counsel for the respondents submitted

that a bare perusal of the reliefs as prayed for in the suit makes it

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clear that the main relief is for declaration, firstly of the property

in question to be ancestral and secondly of khatedari rights of the

plaintiffs. Definitely, unless and until the said rights are

determined and a declaration thereof is made by a competent

Revenue Court, no relief for cancellation of sale deeds could even

otherwise be granted by the Civil Court. Learned counsel further

submitted that in the present matter, even the issue whether the

land in question was an ancestral one or not is in dispute and

hence, unless and until the plaintiffs got their rights declared by a

competent Revenue Court, the suit with a relief for cancellation of

sale deeds could not have been maintained by them.

13. Learned counsel further while relying upon the judgment

passed in the case of Rukmani Vs. Bhola & Ors.; 2012 (4)

RLW (Raj.) 3050 submitted that only the Revenue Court is

competent to grant the relief of declaration qua an agricultural

land and if, after adjudication, the Revenue Court would pass a

decree for declaration in favour of the plaintiffs, that Court would

be competent to grant the consequential relief also. In the

eventuality of the suit for declaration been decreed, as a

consequential relief, the Revenue Court is competent to declare

that the sale deeds in question are null and void to the extent of

the share of the plaintiffs and the plaintiffs would not even be

required to file a separate suit thereafter for cancellation of sale

deeds. By all means, the present suit was not maintainable before

a Civil Court and the learned Trial Court rightly allowed the

application under Order VII Rule 11, CPC.

[2025:RJ-JD:462] (6 of 14) [CFA-215/2023]

14. Besides Rukmani's case (supra), learned counsel relied

upon the Apex Court judgment in the case of Pyarelal Vs.

Shubhendra Pilania & Ors.; (2019) 3 SCC 692 and the

judgments passed by the Coordinate Benches of this Court in

Smt. Kamli Devi Vs. Smt. Rampyari & Ors.; 2023 (1) RLW

(Raj.) 740 and Mahendra Kumar & Ors. Vs. Smt. Maya Devi

& Ors.; S.B. Civil Revision Petition No.182/2017 (decided

on 11.02.2021).

15. Heard learned counsels and perused the record.

16. Before adjudicating on the issues concerned, the

consideration of the reliefs as prayed for in the suit would be

relevant as for determining whether the Civil Court or the Revenue

Court has the jurisdiction to try the suit, the frame of the suit, the

allegations contained in the plaint, the substance and the main

object of the suit, the pith and substance of the plaint and not

merely its form, are required to be looked into. The reliefs as

prayed for in the suit in question are as under:-

" - fd vkjkth la[;k&1025 dks ls jdck 3 ch?kk esa ls 2 ch?kk 10 fcLok dk foØ;i= fnukad 21@08@2020 ,oa 10 fcLok dk foØ;i= fnukad 21@08@2020 izfroknh la[;k&1 o 2 ds i{k esa fu'ikfnr dks fujLr Qjek;k tkdj oknxzLr vkjkth dk vkf/kiR; izfroknh la[;k&1 o 2 ls oknhx.k dks fnyk;k tkosA

- fd oknxzLr 03 ch?kk vkjkth dk vr%dkfyd ykHk dh jkf"k rkjh[k nkok nk;jh ls vkf/kiR; fnyk;s tkus rd oknhx.k dks izfroknh la[;k&1 o 2 ls fu;ekuqlkj fnyk;h tkosA

- fd oknhx.k ds i{k esa fo#) izfroknhx.k ;g ?kksf'kr Qjek;k tkos fd mDr vkjkth la[;k&1025 jdck 3 ch?kk iq"rSuh gksdj fgUnq lgnkf;xh dh lEifRr gksdj oknhx.k ,oa izfroknh la[;k&3 dh

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[kkrsnkjh vf/kdkjksa dh vkjkth gS] ftlesa pkjksa oknhx.k dk 1@5&1@5 fgLlk vFkkZr 4@5 fgLlk gSA izfroknh Øe&3 dk 1@5 fgLlk gSA

- fd oknhx.k ds i{k esa izfroknh la[;k&1 o 2 bl vk"k; dh LFkk;h fu'ks/kkKk iznku dh tkos fd os mDr vkjkth dks fdlh Hkh rjg ls fdlh Hkh vU; dks varfjr u rks djsa o u djkosaA ;fn nkSjkus dk;Zokgh okn fdlh Hkh rjg ls varfjr dj ns rks mDr varj.k dks fujLr ekuk tkosA

- fd okn }kjk vkthou oknhx.k dks izfroknh la[;k&1 ls 3 rd ls fnyk;k tkosA

- fd vU; dksbZ vuqrks'k tks eqfQn oknh gks izfroknhx.k ls fnyk;k tkosA"

17. A bare perusal of the above reliefs makes it clear that

although the first relief is for cancellation of the sale deeds but

relief No.3 specifically is for declaration to the effect that the

property in question being an ancestral and joint Hindu family

property, is the khatedari land of the parties and further that the

plaintiffs are entitled for 1/5th share each in the said property.

18. A conjoint reading of the above reliefs makes it further clear

that only if relief No.3 for declaration is decided in favour of the

plaintiffs, they would be entitled to get the sale deeds cancelled

i.e. relief No.1. Vice versa cannot be possible as without a finding

of the land in question to be an ancestral and joint Hindu family

property and a declaration of the plaintiffs to be entitled for 1/5th

share each, the sale deeds executed by defendant No.3 cannot be

directed to be cancelled. That is to say, prayer No.1 is totally

consequential and dependent on the result of prayer No.3.

Therefore, in the specific opinion of this Court, the main relief in

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the present suit is for declaration of khatedari rights of the

plaintiffs and the other reliefs, mainly relief No.1, is an ancillary

and consequential relief.

19. Section 88 and Section 207 of the Act of 1955 provide as

under:-

"88. Suits for declaration of right-- (1) Any person claiming to be a tenant or a co-tenant may sue for a declaration that he is a tenant or for a declaration of his share in such joint tenancy.

(2) A tenant of Khudkasht may sue for a declaration that he is such a tenant.

(3) A sub-tenant may sue the person from whom he holds for declaration that he is a sub-tenant.

(4) A landholder other than a State Government may sue a person claiming to be a tenant or co-tenant of a holding or a tenant of Khudkasht or a sub-tenant for a declaration of the right of such person.

207. Suits and applications cognizable by revenue court only-- (1) All suits and application of the nature specified in the Third Schedule shall be heard and determined by a revenue court.

(2) 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 suitor application.

Explanation-- 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 could have granted."

20. In terms of the above provisions of the Act of 1955, the

jurisdiction to declare khatedari rights vests exclusively with the

Revenue Courts. Only after such determination been made by the

Revenue Court, a Civil Court can proceed to decree the relief for

cancellation of any consequential document. The explanation to

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Section 207 clarifies that if the cause of action in respect of which

relief is sought can be granted only by a Revenue Court, it is

immaterial that the relief asked for from the Civil Court is greater

than, or in addition to, or not identical with the relief which the

Revenue Court could have granted. As observed by Hon'ble the

Apex Court in Pyare Lal (supra), where Khatedari rights are yet

to be decreed, a claimant must first approach the Revenue Court.

Therein, the Court observed that unless and until the rights qua

an agricultural land are determined by the Revenue Court, no

consequential relief for cancellation of any document pertaining to

the said land can be granted by the Civil Court. The above ratio

has been reiterated in the recent judgment of a Co-ordinate Bench

of this Court in Smt. Kamli Devi (supra) wherein the Court, while

dealing with almost akin facts, observed as under:-

"9.The trial court has categorically observed in its order dated 16.05.2022 that plaintiff has not instituted any independent proceedings before the revenue court for declaration of her 1/8th share/khatedari rights in the aforesaid lands in question for which she has assailed the registered sale deeds to the extent of her 1/8th share. Learned counsel for appellant also admits before this Court that no such independent and separate revenue proceedings by appellant-plaintiff have been instituted before the revenue court and her claim for 1/8th share in the aforesaid lands in question is solely based on judgment and consent decree dated 23.02.2015. For the discussion made hereinabove, judgment and decree dated 23.02.2015 does not render any help to plaintiff for claiming her 1/8th share/khatedari rights in lands in question.

10.It is trite law that while considering the application under Order VII Rule 11 CPC, the averment of plaint and documents referred in the plaint and produced along with plaint are to be considered. Any defence put forth by defendants is wholly relevant at this stage. Further, it is no more integra that pleadings of plaint should be considered as a whole. If, on a meaningful reading of the plaint, not by a cursory reading, the plaint does not disclose a cause of action and clear right to sue to plaintiff or otherwise

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appears to be barred by law, the same can be rejected under Order VII Rule 11 CPC. In the present case at hand, on perusal of pleadings of plaint as a whole and considering documents and judgments of revenue court challenged and referred in the plaint, the clear position emerges is that unless and until plaintiff does not get declared her 1/8th khatedari rights/share in the aforesaid lands in question before the revenue court, she has no cause of action/right to challenge the sale deeds executed by her father and the subsequent sale deeds before the civil court. She has wrongly invoked the jurisdiction of civil court to get indirectly declare her 1/8th khatedari rights to the extent of 1/8th share in the agricultural lands of sale deeds in question, for which exclusive jurisdiction is vested to the revenue court by virtue of Section 207 of Rajasthan Tenancy Act, 1955. If appellant-plaintiff approached to the revenue court seeking declaration of her 1/8th share/khatedari rights in the land in question under disputed sale deeds executed by her father and her revenue suit is decreed in her favour as a natural corollary and in consequence sale deeds in question may be declared as null and void to the extent of 1/8th share/khatedari rights of appellant."

21. In Kamli Devi (supra), the Court relied upon the earlier

judgment of this Court in Rukmani Vs. Bhola & Ors. (supra)

wherein also, the Court was dealing with almost akin facts. The

facts in the case of Rukmani (supra) being totally identical, a

reproduction of the relevant portion of the said judgment would be

relevant for the present matter. The Court therein observed as

under:-

"7. In the present case, the relief claimed in the suit is that the sale deed dated 4.7.85 may be cancelled on the ground that the land which has been transferred by way of this sale deed is an ancestral property, and therefore, the deceased-husband of the plaintiff, who was son of defendant-respondent-Shri Bhola had 1/2 share in it and the remaining 1/2 share belongs to Shri Bhola and after the death of her husband, the plaintiff has 1/2 share in it. It is an admitted fact that the whole of the disputed land is recorded in revenue record only in the name of defendant-Shri Bhola. It has been averred by the defendants that the land in dispute is not an ancestral property and, therefore, son of defendant had no right in the life time of his father and, therefore, plaintiff also has no right in it. Thus, the main question to be determined

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is that whether the land in dispute is an ancestral property and, therefore, the deceased-husband of the plaintiff had 1/2 share in it and was co-tenant alongwith his father the defendant-Shri Bhola. It is well established that in order to determine the true nature of the relief claimed in a suit, the pith and substance and not the form in which the relief may be couched has to be considered. On considering the pleadings in the plaint in the present case carefully and applying the doctrine of pith and substance of the pleadings, I have come to the conclusion that the relief claimed in the suit really amounted to a relief for a declaration that the deceased- husband of the plaintiff and after his death the plaintiff has 1/2 share and is co-tenant in the land in question. The suit in the present case cannot be said to be one for mere avoidance of the sale deed dated 4.7.85. In my view unless a clear finding is given that the plaintiff is a co-tenant and has 1/2 share in the land in question, the sale deed in question cannot be cancelled. It cannot be said in the present case that unless the sale deed is cancelled, the revenue court cannot grant a declaration as to the share of the plaintiff in the land in question. As the plaintiff or her deceased-husband is not a recorded khatedar of the land in dispute, in my view, unless a revenue Court by way of a revenue suit declares under Section 88 of the Act that the deceased-husband of the plaintiff and after his death the plaintiff has 1/2 share or any other share and thus, is a co-tenant alongwith defendant-Shri Bhola in the land in dispute, the Civil Court cannot cancel the sale deed only on the prayer made by the plaintiff-appellant. It is well settled that a suit for cancellation of a deed affecting certain property can be brought by a person who cannot establish his title to the property so long as such deed is not cancelled. That would be so, in the case of a person, who was a party to the deed or was otherwise bound by it in law. It is also well settled that it is not necessary for a third party to a deed i.e. which is neither a party thereto nor is bound by it, to bring a suit for cancellation of the deed in question. In such a case it is not necessary for the plaintiff to get the sale deed cancelled in order to be entitled to the relief claimed by him. In the present case also, the plaintiff or her husband is not a party to the sale deed in question, therefore, it is not necessary for the plaintiff to get it cancelled as she or her husband is not bound by it. If the substance of the pleadings and relief claimed by the plaintiff-appellant is considered in a right perspective, it is clear that the plaintiff by means of the present suit is seeking a relief of declaration in her favour that she is khatedar tenant/co-tenant of 1/2 share of the land in dispute alongwith the defendant. The land in dispute being an agricultural land, such declaration can be given only by a revenue court under the

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provisions of the Act. It cannot be disputed that a suit for declaration regarding an agricultural land is to be filed under Section 88 of the Act if a person claims to be tenant or a co-tenant in the agricultural land in dispute. Section 207 of the Act provides that all suits of the nature specified in the third schedule shall be heard and determined by a revenue court and no other court other than a revenue court shall take cognizance of any such suit. In Item 5 of the third schedule a suit for declaration under Section 88 of the Act has been mentioned. I am also of the view that if the revenue court passes a decree for declaration in favour of the plaintiff to the effect that she is khatedar-tenant or co-tenant of 1/2 or any other share in the land in dispute, that court is equally competent to grant a consequential relief to the effect that the sale deed in question is void and ineffective to the extent of share of the plaintiff and it is not essential for the plaintiff to file a separate suit thereafter in a civil Court for getting the sale deed cancelled. I am also of the view that if the revenue court declares the plaintiff-co-tenant of the land in dispute, it is not necessary for her to get the sale deed cancelled as that would be automatically void and ineffective to the extent of share of the plaintiff."

22. In view of the settled position of law, this Court is of the

clear opinion that the main relief as prayed for in the suit in

question is for declaration and the relief for cancellation of sale

deed is a consequential/ancillary relief. Therefore, the ratio as laid

down in the cases of Pyare Lal, Rukmani and Kamli Devi

(supra) would govern the issue in question. This Court is therefore

of the view that the finding as recorded by learned Trial Court is

totally in consonance with law and does not deserve any

interference.

23. So far as the judgments relied upon by counsel for the

appellant are concerned, the same are clearly distinguishable on

basis of the reliefs as prayed for therein.

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24. Hasti Cement (supra) was a matter wherein no prayer for

declaration of khatedari rights was made. Therein, the declaration

sought was only qua the land in question to be of an un-

partitioned joint Hindu family property. Therein, the Court while

relying upon the judgment of Rukmani (supra) observed as

under:-

"22. The fact that even in a case of a void document a relief of declaration in this regard has been sought, as laid down in the case of Rukmani (supra) once the declaration about status of Tenancy rights is granted, the consequential relief to the effect that the instrument in question is void and ineffective can always be granted by the Revenue Court."

25. Sunil Dhanpat Raj Bhandari (supra) was a matter wherein

a relief for cancellation of the document in question was prayed

for with the specific averments of fraud. Therein, no prayer of

declaration was even made. In those circumstances, the Court

observed that the document in question being voidable, although

pertaining to an agricultural land, the suit would be maintainable

before a Civil Court.

26. Amrit Lal (supra) was a matter wherein the Court

specifically observed that the nature of declaration as sought by

the plaintiffs was not governed by the provisions of Section 88 to

91 of the Act of 1955 and hence, did not attract the bar of Section

207 of the Act of 1955.