D.L. Mehta, J.
1. Heard learned counsel for the parties.
2. The petitioner has challenged the order (Ex. 3) dt. June 11, 1982 of the Board of Revenue for Rajasthan, Ajmer. He has further prayed that it may be declared that the suit (Ex. 1) filed by respondent No. 3 is not triable by Revenue Court and is only triable by the Civil Court. Further ancillary prayers have also been made in the writ petition.
3. Respondent No. 3 filed a suit in the Court of Sub-Divisional Officer, Hanumangarh. In para 2 of the said suit, it has been alleged that on Sept. 22, 1979, her husband has expired and she has no issue and as such, all the rights of her husband, devolved on her. In para 4 of the plaint, it has been submitted that on July 4, 1980, some one has got executed a sale deed in her name in favour of the petitioner. It was submitted that she has never executed the sale deed in favour of the petitioner. In the suit, she has sought a declaration that the plaintiff (respondent No. 3) is the tenant of the agricultural land referred to in the plaint, and the petitioner is having no right or interest in the said land. Relief relating to the possession was also prayed in the plaint. She has also prayed for compensation in accordance with the provisions of the Rajasthan Land Revenue Act and the Rajasthan Land Revenue Rules.
4. Learned counsel for the petitioner has assailed the judgment of the Board of Revenue and has submitted that the suit is not triable by the Revenue Court. He submits that under Chapter VIII of the Rajasthan Tenancy Act, (1955 for short 'the Act' herein) suits relating to the declaration are filed and the present suit does not fall within any of the provisions of Chapter VIII of the Act and as such, the suit for declaration is not maintainable. According to the learned counsel, in theinstant case, the main relief is cancellation of the sale deed and declaration and possession are the consequential reliefs.
5. On the other hand, Mr. B. Rule Arora, learned counsel for the respondent No. 3 submits that no prayer has been made for cancellation of the sale deed and the sale deed has also not been produced by the petitioner before the Court. He submits that the relief relating to the cancellation of the sale deed has not been prayed for and as such, it is not necessary to deal with it all. According to Mr. Arora, the main relief is relating to declaration and possession and the question of execution of the sale deed is not necessary for the purpose of determination of the suit, Mr. Arora submits that respondent No. 3 is seeking declaration as her husband has expired and the property has devolved on her by way of succession.
6. Section 88 of the Act deals with suits for declaration of right. It provides that 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. Section 88 of the Act does not restrict the right of a tenant in the matter of tenancy and it is not fettered with any conditions whatsoever. Whenever a tenant feels it necessary or convenient that he should apply for a declaration looking to the problems with which he is suffering, he is entitled to file a suit for declaration. A tenant can only seek a declaration that he is a tenant or for a declaration of his share in such joint tenancy. In the instant case, respondent No. 3 has sought a declaration that she is the tenant and so the suit filed by respondent No. 3 lies under Section 88 of the Act. Apart from that Section 89 of the Act provides that at any time during the continuance of a tenancy, the tenant or a landholder other than the State Government may sue for a declaration as to all or any of the matters referred to therein. Thus, a tenant can get a declaration that he is the tenant and is continuing as a tenant in this specified area, numbered plots or boundaries of the holding. So, it cannot be said that the suit for declaration does not lie when a party submits that a non-existent document is used by the other party and he wants to seek a declaration that he is the rightful tenant of the said land. Apart from that, in the instant case, reliefs relating to possession and other ancillary reliefs have also been sought. I have perusal of the plaint: it reveals that the plaintiff respondent No. 3 wants to submit that there is no execution of the sale deed at all in favour of the present petitioner. Other reliefs prayed for is for the possession and damages. Thus, the main relief is relating to the possession and it is not a case simpliciter of a declaration. The class of tenancy has to be determined for delivering possession to the plaintiff. The class of tenancy and the right of tenancy can only be determined by the Revenue Court and the Civil Court has no jurisdiction. This, by determination of the class of tenancy and the right of tenancy is necessary for granting the main relief relating to possession. Thus, the main relief is relating to possession and for that purpose, the ancillary relief is the determination of the right of tenant. Determination of the right of the plaintiff, determination of the fact as to who is the landlord and who is the tenant of the State are necessary for all the purposes and only after the determination, the possession can be handed over. If a party seeks the relief relating to the possession and does not make a prayer regarding declaration then the Civil Court will have no jurisdiction at all. In the instant case, for the purpose of determination of the right to possession on the ground of tenancy, the question of determination of right of tenancy is a must and for this purpose also, the main relief is that of possession. A party may seek a declaration that the document executed is void. A party may also pray for cancellation of the document but a party cannot seek cancellation of the document which according to him is not in existent.
7. Mr. S.N. Sharma, learned counsel appearing for the petitioner submits that the document should be considered as voidable. The question of voidable document arises only when the question of existence of the document is admitted. In the instant case, plaintiff-respondent No. 3 submits that she has not executed the document and so the question of void or voidable document does not arise. Here, the question involved is whether the document has been executed or not and if the document has not been executed by the party then the document is non est and no one can seek a prayer for cancellation of a non est document. Mr. B. R. Arora, learned counsel appearing for respondent No. 3 has invited my attention to Sangram Singh v. Roop Lal 1977 WLN (UC) 454 where in P. N. Shinghal, J. (as he then was) observed : --
'The plaintiff and his father were tenants of the suit lands It was the plaintiffs own case that the sale was void ab initio. Therefore, the only substantial relief which he asked was delivery of possession on the ground that he had been prevented from taking possession on account of the sale even though he and his father Bhooralal were owners in joint possession of the suit land before the sale. The case, therefore, fell within the purview of Section 187 of the Rajasthan Tenancy Act, 1955 as the plaintiff claimed that he had been prevented from obtaining possession of his land on account of the impugned sale.'
In Jagan Singh v. Chotey Lal 1973 Raj LW 674, it was observed as follows :
'In a suit where the main relief asked for by the plaintiff is restoration of the possession of the property which is the subject-matter of the instrument, the question whether relief for cancellation must be asked for, would depend upon an answer to the other important question whether the instrument is void ab initio or is voidable. If the instrument is voidable and the avoidance of the same is necessary, the relief for cancellation of the instrument is indispensable and in that case the Revenue Court can give no relief as long as the sale deed is not cancelled. But the position would be different if the instrument is alleged to be or proved to be void ab initio. In that case, it would not be necessary to avoid the document and merely by proving that it was a void document, the plaintiff would certainly get the possession of the property without cancellation of the sale deed.
In the present case, the cause of action is no doubt the factum of sale alleged to be void ab initio and the real and substantial relief for possession of the land and the dwelling house standing thereon. That isthe real contest between the parties and that is also the substance of the suit as well as the object of the suit. This relief can be granted only by Revenue Court and not by the Civil Court. In this view of the matter, I have no doubt that the present suit is triable by Revenue Court.'
Mr. S.N. Sharma, learned counsel appearing for the petitioner has invited my attention to Shyam Kumar v. Budh Singh 1977 Raj LW 131 : (AIR 1977 Raj 238); Badrilal v. Moda AIR 1979 Raj 142 (FB) and Gurcharan Singh v. Gurdayal Kaur AIR 1982 Raj 91. The propositions laid down in all the cases lead to one conclusion and there is no inconsistency whatsoever in the propositions laid down in all the judgments. While considering, jurisdiction of the Court one has to see which is the main relief and thereafter, the jurisdiction of the Court should be decided. There may be number of ancillary reliefs, which may not be granted by the Revenue Court and in that case, the case should not be thrown out from the jurisdiction of the Revenue Court only on that ground that there are some ancillary reliefs also. Apart from that, even if we accept the submission made by Shri Sharma, learned counsel appearing for the petitioner, the question that arises is that in a case of void or voidable document, the prayer can be made for the cancellation of the document, but in a case of non est document, no prayer can be made for cancellation of a document. There can only be a declaration that the document is not in existence and for this reason also, the petitioner is not entitled to get any relief. Any finding of the lower Courts is not going to prejudice the case of the petitioner. The lower Court has given a finding that issues Nos. 8 and 9 require evidence. However, the Revenue Board has held that the suit is triable by the Revenue Court'.
8. For the reasons mentioned above, I find no force in all these writ petitions. The writ petitions are accordingly dismissed without any order as to costs.