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Gurucharansingh and ors. Vs. Mst. Gurdayal Kaur and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 768 of 1979
Judge
Reported inAIR1982Raj91
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9; Specific Relief Act, 1963 - Sections 31; Rajasthan Tenancy Act, 1955 - Sections 242
AppellantGurucharansingh and ors.
RespondentMst. Gurdayal Kaur and ors.
Appellant Advocate H.M. Parekh, Adv.
Respondent Advocate R.N. Bishnoi, Adv. and; H.N. Calla, Addl. Govt. Adv.
DispositionPetition allowed
Cases ReferredAct and Gulla v. Doliya
Excerpt:
.....a plea of..........to this petition may be noticed:smt. shyam kaur widow of hazur singh (deceased), smt. gurdayal kaur (plaintiff-respondent no. 1) and smt. jaswant kaur (plaintiff-respondent no. 2) instituted a suit for cancellation of the decree dated march 7, 1963 passed in suit no. 7 of 1961 (gurucharan singh v. hazur singh) by the assistont collector, hanumangarh on the ground that it was collusive and fraudulent and that smt. shyam kaur (deceased) not being a party to suit no. 7 of 1961 was not bound by that decree. it was also prayed in the plaint (ex. 1) that a declaration may also he made with regard to the shares of the plaintiffs and smt. suchiyar kaur (defendant-respondent no. 5) and after partition, possession of their shares may also be delivered to them. in the alternative, it was prayed.....
Judgment:

S.K. Mal Lodha, J.

1. By this petition under Article 226 of the Constitution of India, petitioners Gurucharan Singh and 6 others seek to quash the order (Ex. 4) dated Nov. 9, 1978 of the Board of Revenue for Rajasthan, Ajmer (for short 'the Board' hereinafter), by which, it held that a revenue court has jurisdiction to try the suit filed by Smt. Shyam Kaur deceased, Smt. Gurdayal Kaur (respondent No. 1) and Smt. Jaswant Kaur (respondent No. 2) for declaration and possession, which was instituted against Gurucharan Singh and 10 others in the Court of Assistant Collector, Hanumangarh on Nov. 3, 1966.

2. A few facts leading to this petition may be noticed:

Smt. Shyam Kaur widow of Hazur Singh (deceased), Smt. Gurdayal Kaur (plaintiff-respondent No. 1) and Smt. Jaswant Kaur (plaintiff-respondent No. 2) instituted a suit for cancellation of the decree dated March 7, 1963 passed in suit No. 7 of 1961 (Gurucharan Singh v. Hazur Singh) by the Assistont Collector, Hanumangarh on the ground that it was collusive and fraudulent and that Smt. Shyam Kaur (deceased) not being a party to Suit No. 7 of 1961 was not bound by that decree. It was also prayed in the plaint (Ex. 1) that a declaration may also he made with regard to the shares of the plaintiffs and Smt. Suchiyar Kaur (defendant-respondent No. 5) and after partition, possession of their shares may also be delivered to them. In the alternative, it was prayed that a decree for joint possession may be passed. The suit was contested on various grounds. One of the questions that arose and which forms the subject-matter of issue No. 5 is whether the suit is triable by a revenue court or it was triable by a civil court? The matter went up to the Board, for, the parties wanted that issue No. 5 relating to jurisdiction should be decided first. The Board, however, did not give any decision on issue No. 5 and, therefore, a writ petition was filed before this Court, which was decided by order dated April 2, 1970. The High Court while deciding that petition issued the following directions:

'The Board is, directed to re-hear the revision and in doing so, to take up issue No. 5 first of all as it relates to the question of jurisdiction. It is further directed that the Board should pass such fresh order as may be necessary in the circumstances of the case after deciding that issue.'

The Board did not comply with the directions and when the matter came to its file, it remanded the case to the court of Assistant Collector. The Assistant Collector decided issue No. 4 which related to the consequences of not impleading the plaintiff No. 1 (Smt. Shyam Kaur) as party to the former suit in which the decree was obtained and which was challenged by the plaintiffs as collusive and fraudulent; A revision was filed against the decision of issue No. 4 before the Board, which was dismissed. Thereafter, the petitioners filed a writ petition insisting that the Board should be directed first to comply with the directions of this Court given in the order dated April 2, 1970 and it should be asked to decide issue No. 5 which relates to the jurisdiction. By order (Ex. 3) dated July 13, 1977, D. B. Civil Writ Petition No. 122 of 1977 (Gurucharan Singh v. Mst. Shyam Kaur) was accepted and the order of the Board dated Jan. 21, 1977 and the order of the Assistant Collector, Hanumangarh dated Aug. 7, 1976 were set aside and a direction was issued to the Board to re-hear the revision petition and in doing so to decide issue No. 5 first which relates to the jurisdiction and after deciding that issue, if it thinks that the matter was triable by the revenue court then it should pass such order after hearing the parties, which if may deem necessary in the circumstances of the case. By order (Ex 4) dated Nov. 9, 1978, the Board held that a revenue court has jurisdiction to entertain and try the suit and it, therefore, remanded the case to the Assistant Collector, Hanumangarh with a direction to decide the question of the effect of the partition decree dated March 7, 1963 in the suit and thereafter, if warranted to decide the other issues and the suit as a whole. The petitioners have challenged the order (Ex. 4) dated Nov. 9, 1978 in this writ petition and have prayed that a writ of certiorari may be issued for quashing it.

3. No reply has been filed on behalf of the respondents.

4. We have heard Mr. H.M. Parekh, learned counsel for the petitioners, Mr. B.N. Bishnoi, learned counsel for respondents Nos. 1 to 3 and Mr. H.N. Calla, learned Additional, Government Advocate.

5. Mr. Parekh, learned counsel for the petitioners has contended that having regard to the averments made in the plaint (Ex. 1) and the reliefs sought by the plaintiffs, it is clear that the suit is not triable by a revenue court. He submitted that the main relief asked for by the plaintiffs is declaration to the effect that the decree dated March 7, 1963 obtained in Suit No. 7 of 1961 was collusive and fraudulent and that it is ineffective against the tenancy rights of the plaintiffs. According to the learned counsel, the other reliefs asked for by the plaintiffs are ancillary and that as the declaration that the decree dated March 7, 1963 passed in Suit No. 7 of 1961 is void and ineffective against the tenancy rights of the plaintiffs, cannot be granted by a revenue court, the Board has committed a serious illegality when it held that the suit is triable by a revenue court. In this connection, he drew our attention to Section 207 and the Third Schedule of the Rajasthan Tenancy Act (No. XIII of 1955) (hereinafter referred to as 'the Act') and submitted that the Third Schedule of the Act contains no specific item in regard to a suit for cancellation of a decree.

6. On the other hand, Mr. R.N. Bishnoi, learned counsel for respondents Nos. 1 to 3 contended that the suit is for declaration, partition and possession and that in view of the provisions contained in Sections 53 and 88 of the Act, which deal with division of holding and declaration of right respectively, which are covered by items Nos. 3 and 5 of the Third Schedule of the Act the suit is triable by a revenue court. He also submitted that the suit which was instituted by the plaintiffs for declaration, partition and possession is covered by item No. 35 (General) of the Third Schedule of the Act. He urged that the relief for declaring the decree dated March 7, 1963 to be void and ineffective against the tenancy rights of the plaintiffs is an ancillary one and not the main relief. He drew our attention to the Explanation to Section 207 of the Act and placed reliance on Asala v. Narain, 1963 Raj LW 323, Mohar Singh v. Wazir Chand, 1969 Raj LW 347, Mohanlal v. Ratna; AIR 1971 Raj 164 and Rooda Ram v. Rattu Ram, 1972 Raj LW 532 and thus supported the order (Ex. 4) dated Nov. 9, 1978 of the Board.

7. We have, given our most anxious and thoughtful consideration to the rival contentions raised by the learned counsel for the parties and have also read the plaint (Ex. 1) with due care and attention. . .

8. In Badrilal v. Moda, AIR 1979 Raj 142, a Full Bench of this Court, to which one of us (S.K. Mal Lodha, J.) was a member, after noticing Shyamkumar v. Budhsingh, 1977 Raj LW 131: (AIR 1977 Raj 238) and Ratanlal v. Gram Panchayat, Agolai, 1977 Raj LW 143: (AIR 1977 NOC 308) opined that for the purpose of seeing whether the suit is exclusively triable by a revenue court and the civil court has no jurisdiction to try the same, averments in the plaint are carefully to be looked into and all the allegations made in the plaint should be taken into consideration and not the reliefs alone claimed in the plaint for the purpose of determining the question of jurisdiction. It was observed as follows:

'The substance of the plaint providesa good guide to find out the true natureof the object of the suit.'It was rightly not disputed by the learned counsel for the parties that the question of jurisdiction is to be decided on thebasis of the averments made in the plaintand all the allegations made thereinshould be considered in order to decidewhether the suit is exclusively triable bya revenue court, for, it is well settledthat it is the substance of the plaint andthe true nature of the object of thesuit that has to be seen for the purposeof determining the question of jurisdiction.9. This has necessitated the examination of the plaint (Ex. 1). In Suit No. 7 of 1961, deceased Hazur Singh was party. In para 2 of the plaint (Ex. 1), it has been inter alia stated as under:

^^------------------rk-25&1&61 dks :c: vnkyr lkgc ,- lh- guqekux< bu xyr okds;kr ds lkFkis'k fd;k fd c:os ckgeh rdlhe eqroQh gtwjflg o eqnk;ykge ua- 1 ;k 6 eqdnek gktkus rdlhe dh gqbZ gS] is'k fd;k ftles eqroQh gtwjflg us rk- 15&3&61 dksbdckynkok is'k fd;k rFkk eqnk;yk ua- 10 ds f[kykQ 29&9&61 dks dk;Zokgh bdrjQk vey es yk;s tkus dk vkns'k Qjek;k x;k A bl reke dk;Zokgh ds ckn rk-7&3&63 dks eqrnQh gtwjflg ds f[kykQ c:os bdcky o eqnk;yk ua 10 ds bdrjQkfZMh Qjek;k x;k A udy ipkZ fMh gekjk nkok is'k gS A ;gh fouk; nkok gS A**

Hazur Singh died on July 2, 1965. In para 5 of the plaint (Ex. 1), it has been stated that the existence of the decree dated March 7, 1963 obtained in Suit No. 7 of 1961 affects the tenancy rights of the plaintiffs and defendant No. 8 in respect of the agricultural land which belonged to deceased Hazur Singh (detailed in para 2 of the plaint (Ex. 1). It has also been averred in para 5 of the plaint (Ex. 1) that as the agricultural land in question is in possession of defendants Nos. 1 to 6 and 10, the plaintiffs besides declaration are entitled to partition and possession and alternatively for joint possession. In para 9, it has been stated as under:

^^bl rjg eqnbZ;ku dks fcuk;nkok rk- 2&7&65 dks gtwjflg ds QkSr gksus ij fMh dk bye gksus o eqnk-1 ok 6 }kjk vkjkth% ij dCtk u djus nsus ij gkfly gqbZ A**

In para 10 of the plaint (Ex. 1), it hasbeen averred that the plaintiffs askedseveral times to the defendants to treatthe decree dated March 7, 1963 as ineffective against the tenancy rights of theplaintiffs and to deliver possession tothem but they (defendants) flatly refused. Para 11 of the plaint (Ex. 1) relatesto court-fees, jurisdiction and limitation.The reliefs sought by the plaintiffs arecontained in para 12 of the plaint. Reliefs (k) and (kh) asked for by the plaintiffs in the plaint (Ex. 1) may usefully bequoted:

^^d djkj Qjek;k tkos fd fMhtks eqdnek ua- 7 lu 61 o vueku xqjpj.k flag cuke gtwjflg oxSjg tks vnkyr lkgc ,-lh- guqekux<+ nokjk rk- 7&3&63 dks lkfnj QjekbZ xbZ gS ckfry f[kykQdkuwu gS vkSj eqnbZ;ku ds tenancyrights ij csvlj gSa A

[k mijksDr bLrdjkj os lkFk 2 eqnbZ;ku oeqnk- ua- 8 dk tenancy esa sharedh fLcr (sic)djkj Qjek;k tkos o vkjkth dk n[ky ctfj;s rdlhe fnyk;k tkosAalternatively eq'rjdk dCtk fnyk;k tkosA**

10. In Ram Awalamb v. Jata Shankar, AIR 1969 All 526 (PB), it was observed that it is the cause of action which determines the jurisdiction of court and that the term 'cause of action' though nowhere defined, means every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment. It was further held in that case that in each and every case, the cause of action of the suit shall have to be strictly scrutinised to determine whether the suit is solely cognizable by a revenue court or is impliedly cognizable only by a revenue court or is cognizable by a civil court. The main point of consideration in all cases where on a definite cause of action two or more reliefs can be claimed is which of the reliefs is the main relief and which relief or other reliefs are ancillary reliefs. Once the suit is maintainable for the main relief in the civil court then there is no bar for the civil court to grant all possible reliefs flowing from the same cause of action. The determination of the question as to which out of the several reliefs arising from the same cause of action is the main relief will depend on the facts and circumstances of each case. We are tempted here to quote the following principles laid down in Ram Awalamb's case (AIR 1969 All 526 at p. 539) (FB):

'(1) Where, on the basis of a cause of action, the main relief is cognizable by a revenue court, the suit would be cognizable by the revenue court only. The fact that the ancillary reliefs claimed are cognizable by civil court would be immaterial for determining the proper forum for the suit;

(2) Where, on the basis of a cause of action, the main relief is cognizable by the civil court, the suit would be cognizable by the civil court only and the ancillary reliefs, which could be granted by the revenue court may also be granted by the civil court.'

Prom a reading of the plaint as a whole, it is abundantly clear that the plaintiff's suit is based on two counts: (i) that the decree dated March 7, 1963 suffered by deceased Hazur Singh was collusive and fraudulent and, therefore, it is void and ineffective against the tenancy rights of the plaintiffs; and (ii) that on account of the death of Hazur Singh, plaintiffs and defendant No. 8 are entitled to get a declaration of their shares in the agricultural land which belonged to deceased Hazur Singh and so, for that matter; they are entitled to partition and possession of it. These two distinct and independent grounds are contained in paras 4 and 5 of the plaint (Ex. 1). In other words, the plaintiffs have claimed two principal reliefs, which are contained in sub-paras (k) and (kh) of para 12 of the plaint (Ex. 1). We have no hesitation in saying that these reliefs are distinct and separate and out of these two, one cannot be called as the main relief and other as consequential or ancillary. It has been inter alia stated by the plaintiffs in para 9 of the plaint that the cause of action accrued to them on July 2, 1965, when Hazur Singh died and when they came to know about the decree. In these circumstances, the question that crops up for consideration is whether the main relief viz. declaration of the decree dated March 7, 1963 passed in Suit No. 7 of 1961 as void being against law and ineffective against the tenancy rights of the plaintiffs can be granted by a revenue court? Admittedly, there is no specific item in the Third Schedule of the Act dealing with a suit for declaring the decree to be void and ineffective.

11. Section 31 of the Specific Relief Act, 1963 runs as follows:

'Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury may sue to have it adjudged void or voidable; and the court may in its discretion, so adjudge it and order it to be delivered up and cancelled.'

12. In Begraj v. Gumanaram, 1963 Raj LW 516, before Jagat Narayan, J. (as he then was), a question arose whether a suit for declaration that the decree of the revenue court is void being without jurisdiction and is not binding and for consequential reliefs is cognizable by a revenue court. In that context, it was observed as under

'The learned counsel for the respondents was unable to point out any provision in the Rajasthan Tenancy Act or the Rajasthan Land Revenue Act for bringing a suit of the nature instituted by the plaintiffs, namely, one for a declaration that a particular judgment of the revenue court is void against the plaintiff. It follows that a suit like the present one can only be tried by the civil court.'

In that case, the learned Judge set aside the order returning the plaint for presentation to the revenue court and remanded the suit to the Court of Munsif Bhadra for decision in accordance with law after framing an additional issue relating to the jurisdiction.

13. In Lalsingh v. Tejsingh, 1971 WLN 674: (AIR 1972 Raj 137 at p. 138), Jagat Narayan, C. J. made the following observations:

'The relief of cancellation of a sale deed or a decree can only be granted by a civil court and not by revenue court.'

14. A somewhat similar question arose before a Division Bench of the Pepsu High Court in Shanti Pd. v. Kunj Lal, AIR 1953 Pepsu 151. Issue No. 1 related to the question of jurisdiction. The allegation of the plaintiff in that case was that the decree and orders of the revenue courts in execution whereof the properties described in the plaint in which they had l/4th share had been sold, had been passed ex parte as a result of fraud as they were not represented and no guardians for them in those suits had been appointed and they had thus remained unrepresented. It was claimed that the decree and orders in execution could not affect their rights in those properties and that they were entitled to recover their possession, after getting the declaration that they were ineffective qua them. The learned Judges, after noticing Mst. Jahandar Begam v. Chinta, AIR 1929 All 232 (C), Mukhtar Ahmad v. Lachman Prasad, AIR 1929 All 845 (1) (D) and Siraj Fatma v. Mahmood Ali, AIR 1932 All 293 (FB) and the provisions of Section 9, C.P.C held that the trial court viz. Civil Court had jurisdiction to try the suit.

15. We respectfully agree with the view taken in Shanti Pd's case (AIR 1953 Pepsu 151), Begraj's case (1963 Raj LW 516) and Lalsingh's case (AIR 1972 Raj 137), and hold that out of the two principal reliefs claimed by the plaintiffs, the relief (k) for declaring the decree dated March 7, 1963 passed in Suit No. 7 of 1961 to be void and ineffective against the tenancy rights of the plaintiffs, for, it was obtained by fraud and collusion from the revenue court, can only be granted by a civil court and for that matter, the suit is cognizable by a civil court and cannot be taken cognizance of by a revenue court.

16. Section 207 of the Act lays down that only those suits and application of the nature specified in the Third Schedule shall be heard and determined by a revenue court and, therefore, for the purpose of granting the aforesaid main relief (k) for declaring the decree dated March 7, 1963 to be void and ineffective against the tenancy rights of the plaintiffs, the proper forum, as stated above, is that of a civil court. It is, therefore, clear that the relief asked for by the plaintiffs contained in sub-para (kh) of para 12 of the plaint (Ex. 1) can only be granted by a revenue court in view of items Nos. 3 and 5 of the Third Schedule of the Act and as stated above, the relief (k) can only be granted by a civil court. In view of the two aforesaid principal reliefs asked for by the plaintiffs, in our opinion, it is a suit dealing with composite matter. Section 242 of the Act makes provision for dealing with such composite matters. It runs as under:

'242. Procedure when plea of tenancy rights raised in Civil Courts:-- (1) If in any suit relating to agricultural land instituted in a civil court, any question regarding tenancy rights arises and such question has not previously been determined by a revenue court of competent jurisdiction the civil court shall frame an issue on the plea of tenancy and submit the record to the appropriate revenue court for the decision of that issue only.

Explanation:-- A plea of tenancy which is clearly untenable and intended solely to oust the jurisdiction of the civil court shall not be deemed to raise a plea of tenancy.

(2) The revenue court, after re-framing the issue, if necessary, shall decide such issue only, and return the record together with its finding thereon, to the civil court which submitted it.

(3) The civil court shall then proceed to decide the suit accepting the finding of revenue court on the issue referred to it.

(4) The finding of the revenue court on the issue referred to it shall for the purpose of appeal, be deemed to be part of the finding of civil court.' It is thus clear that the portion of claim made in the plaint relating to the declaration of the decree dated March 7, 1963 being void and ineffective against the tenancy rights of the plaintiffs is triable by a civil court and the other portion viz. relief (kh) is triable by a revenue court. In these circumstances, we are definitely of the opinion that the suit can rightly be taken cognizance of by a civil court and not by a revenue court and what would be necessary is to refer the issue relating to the claim of declaration of shares in the agricultural land belonging to deceased Hazur Singh and possession thereof, which relates to the tenancy rights, to the revenue court, if at all it is found necessary to do so. Reference in this connection may be made to Har-dayal v. Jaggasingh, AIR 1969 Raj 89. In that ease, Kansingh, J. as he then was after considering the provisions of Section 242 of the Act and Gulla v. Doliya, 1953 Raj LW 332 observed as follows:

'It is true that a Civil Court will not be competent to go into the question whether the plaintiff had or had not acquired the Khatedari rights claimed by him in the land or to grant him any relief by way of declaration in respect of such rights, yet on that basis alone it cannot be postulated that the suit shall not be triable by a Civil Court.'

A Full Bench of this Court in Badrilal's case (AIR 1979 Raj 142) agreed with this view. We are, therefore, of the opinion that the Board has committed an error of law when it held that the revenue court has jurisdiction to take cognizance of the plaintiffs' suit.

17. Now, we may advert to the authorities cited by Mr. Bishnoi, learned counsel for respondents Nos. 1 to 3.

18. In Asala's case (1963 Raj LW 323), it was held that the question of jurisdiction, namely, whether a suit is exclusively triable by a revenue court or the civil courts can take cognizance of it, has to be decided on the allegations made in the plaint taken in their essence, and the guiding test according to this decision is: What is the true nature of the suit, or what is its object as disclosed by the allegations contained in the plaint? While considering the plaint, in the present case, we have applied the test laid down therein: Mr. Bishnoi, learned counsel for respondents Nos. 1 to 3, however, placed, reliance on the following, occurring in para 14 of the report :

'I have, therefore, no hesitation whatsoever in coming to the conclusion that the expedient of seeking a declaration that the order or decree of the Anti Ejectment Officer and of the Revenue Board were not binding on the, plaintiffs cannot be allowed to camouflage the real nature of the suit or object of, the plaintiffs in bringing it.'

In that case, the learned Judge analysed the plaint and came to the conclusion that the plaintiff's case was virtually for a declaration of their rights as tenants with respect to the land in suit and further for recovery of possession if they were found to be out of it and on such analysis, he held that the suit was triable by a revenue court and that the civil court had no jurisdiction to take cognizance of it.

19. In Moharsingh's case (1969 Raj LW 347), the suit was brought for a declaration that after the death of P, the plaintiff was the sole Khatedar tenant of the land in suit and his mother had no right to alienate it and for an injunction to restrain the defendants from interfering with his possession over it. Jagat Narayan, J. as he then was held that the reliefs asked for by the plaintiff were covered by Section 88 (1) and Section 92-A of the Act. We have already held that the reliefs (k) and (kh) asked for by the, plaintiffs are principal reliefs; and that relief (k) can only be granted by a civil court.

20. In Mohanlal's case (AIR 1971 Raj 164), C.M. Lodha, J. as he then was considered the pleadings in the plaint and applied the doctrine of pith and substance of the pleadings and reached the conclusion that the relief claimed in that suit really amounted to a relief for a declaration that the plaintiff had half share in the land in question and that the suit cannot be said to be one for mere avoidance of the document. The learned Judge was further of the opinion that the suit was covered by item No. 5 of the Third Schedule of the Act.

21. The only authority that remains to be considered is Rooda Ram's case (1972 Raj LW 532). In that case, Section 207 of the Act was noticed. The learned Judge analysed the plaint and opined that the real cause of action is, to whom does the field in question belong and the crux of the matter is that the plaintiff is seeking vindication of his own Khatedari rights in the field by the present suit and the connected or collateral points that would arise for consideration would be about the validity of the sale made by Ghisaram.

22. Having read the aforesaid four decisions relied on by the learned counsel for respondents Nos. 1 to 3 with requisite care, we are of opinion that they are not applicable to the case in hand and wholly distinguishable on facts. As held by us above, the suit instituted by the plaintiffs deals with composite matter and Section 242 of the Act is attracted. The decision of the Board dated Nov. 9, 1978 suffers from an infirmity of law when it held that the suit is triable by a revenue court.

23. For the reasons aforesaid, the writ petition is accepted and the order (Ex. 4) dated Nov. 9, 1978 of the Board is quashed and we hold that the suit as instituted by the plaintiffs is not triable by a revenue court but it can be taken cognizance of by a civil court. In the circumstances of the case, there will be no order as to costs of this writ petition.


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