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Jagan Singh Vs. Chotey Lal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 392 of 1970
Judge
Reported in1973(6)WLN654
AppellantJagan Singh
RespondentChotey Lal
DispositionAppeal allowed
Cases ReferredRam Awalamb and Ors. v. Jata Shankar and Ors.
Excerpt:
rajasthan tenancy act, 1955 - section 207--suit for declaration that sale-deed in respect of agr. property is ab-initio void--held, it lies in revenue court.;the cause of action is no doubt the factum of sale alleged to be void ab-initio and the real and substantial relief is for possession of the land and the dwelling house standing thereon. that is the real contest between the parties and that is also the substance of the suit as well as the object of the suit. this relief, it cannot be gainsaid, can be granted only by revenue court and not by the civil court.;it cannot be said that the revenue court cannot decide the question whether the sale of the land is void ab-initio. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 &..........filed the suit out of which this appeal arises in the court of munsiff sikar for cancellation of a sale deed and for possession of the land in dispute khasra nos. 318, 378 and 379 situated in sikar measuring 7 bighas. he alleged that the defendant by practising fraud got a sale deed of the land in question executed by him on 15-9-61 in the defendant's favour without paying any price. it was further alleged that the sale was void ab-initio being in contravention of section 42, second proviso (b) of the rajasthan tenancy act, 1955 (hereinafter referred to as the act') as the plaintiff was a member of scheduled tribe whereas the defendant was not a member of scheduled tribe. it was prayed that the sale-deed dated 15-9-61 be declared void ab-initio and a decree for possession of the land in.....
Judgment:

C.M. Lodha, J.

1. Plaintiff respondent Chotey Lal filed the suit out of which this appeal arises in the court of Munsiff Sikar for cancellation of a sale deed and for possession of the land in dispute Khasra Nos. 318, 378 and 379 situated in Sikar measuring 7 Bighas. He alleged that the defendant by practising fraud got a sale deed of the land in question executed by him on 15-9-61 in the defendant's favour without paying any price. It was further alleged that the sale was void ab-initio being in contravention of Section 42, second proviso (b) of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act') as the plaintiff was a member of Scheduled Tribe whereas the defendant was not a member of Scheduled Tribe. It was prayed that the sale-deed dated 15-9-61 be declared void ab-initio and a decree for possession of the land in dispute and the dwelling house standing thereon be granted in favour of the plaintiff.

2. The suit was resisted by the defendant inter alia on the ground that it was exclusively triable by a revenue court and was not maintainable in civil court. The learned Munsiff tried the suit on merits and in the result held that the plaintiff had failed to prove fraud as well as lack of consideration However, he came to the conclusion that the sale was void ab-initio being in contravention of the provisions of Section 42 of the Act, As to the question of jurisdiction, he found that residential land was involved in the suit along with the agricultural land and, therefore, the suit was triable by civil court. In the result he decreed the suit as prayed.

3. Aggrieved by the judgment and decree of the trial court the defendant filed appeal and the learned Civil Judge, Jhunjhun (Camp Sikar) confirmed the judgment and decree of the trial court. He concurred in the finding of the Munsiff that the plaintiff had failed to prove fraud in connection with the sale of the lend but he differed from the trial court on the question of consideration and held that the sale deed was proved to be with consideration. He also agreed with the trial court that the sale was void ab-initio being in contravention of the provision of Section 42 of the Act. As regards the objection about the jurisdiction of the civil court to try the suit he reached the same conclusion as arrived at by the trial court though on different grounds. He held that the suit was based on a cause of action in respect of which reliet could be obtained only from a civil court.

4. In this second appeal learned Counsel for the appellant has urged only the question of jurisdiction. It has been argued by him that the suit is cognizable by revenue court only.

5. Section 207 of the Act which is relevant, reads as under:

207. Suits and applications cognizable by revenue court only, (2) 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 on application or of any suit or application based on a cause of action in respect of which any relief be obtained by means of any such suit or 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.

6. The subject matter involved in the suit is agricultural land as also a dwelling house erected on the holding by the tenant for his own occupation and is at any rate a construction on the holding for agricultural purposes. It is not disputed that a suit fur possession of the land and the house in question would lie in revenue court. The finding given by the trial court in this respect that the suit is partly for possession of a residential house as destine from a dwelling house on a holding, has not been supported or relied upon by the learned Counsel for the respondent and that is why I have said that the suit is indisputably for possession of property for which relief can be granted by revenue court only.

7. Learned Counsel for the appellant has urged that the substance of the suit and the main object of the suit is to get possession of agricultural land and the dwelling house standing thereon. It is submitted that the relief of cancellation of the sale deed has been asked merely to give the suit an outward form of one for cancellation of an instrument under Section 31 of the Specific Relief Act so as to make it triable by a civil court. It is true that the plaintiff essentially seeks the relief of possession of the suit land and the house which essentially fall within the scope of the Tenancy Act. The question then is, can the plaintiff oust the jurisdiction of the revenue court by claiming a relief that a decree for cancellation of a sale deed be granted? In this connection learned Counsel for the respondent has argued that the relief for cancellation of the sale dead is the main relief in the case and since that relief cannot be granted by revenue court, the suit is triable by civil court. In support of his argument he has referred to Section 31 of the Specific Relief Act and Manraj v. Rameshwar 1969 RLW 507.

8. No doubt Section 31 of the Specific Relief Act gives a right to the plaintiff to approach a civil court to have the sale deed adjudged void or voidable, if be has reasonable apprehension that such instrument, if left outstanding may cause him serious injury. But 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-abinitio 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, I have, no doubt, the revenue court can give no relief as long as the sale deed is not cancelled. But the position in my view 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. I am supported in this view by the decisions in Mewa and Ors. v. Baldeo : AIR1967All358 para 3 of the judgment and Chhedi v. Smt. Indrapati : AIR1972All446 para 15(6) of the judgment.

9. Reference may also be made to Ram Awalamb and Ors. v. Jata Shankar and Ors. : AIR1969All526 (FB) wherein it was observed that it is the cause of action which determines the jurisdiction of the court and where in a suit from a perusal only of the reliefs claimed, one or more of them are ostensibly cognizable only by civil court and at least one relief is cognizable only by the revenue court, further questions which arise are, whether all the reliefs are based on the same cause of action and, if so, (a) whether the main relief asked for on the basis of that cause of action is such as can be granted only by a revenue court, or (b) whether any real or substantial relief (though it may not be identical with that claimed by the plaintiff) could be granted by the revenue court. It was further observed hat there can be no doubt that in all cases contemplated under (a) and (b) above, the jurisdiction shall vest in the revenue court and not in the civil court.

10. Now in the present case the cause of action is no doubt the factum of sale alleged to be void ab-initio and real and substantial relief is for possession of the land and the dwelling house standing thereon. That is the real contest between the parties and that is also the substance of the suit as well as the abject of the suit. This relief, it cannot be gain said, can be granted only by revenue court and not by the civil court. In such circumstances the revenue court after coming to the conclusion that the document was completely void and ineffectual to pass title to the transferee can grant a decree for possession in favour of the plaintiff. In this view of the matter I have no doubt that the present suit is triable by revenue court.

11. Coming to Manraj's case 1969 RLW 507 it may be pointed out that the property in respect of which the suit was brought in that case was agricultural as well as Abadi land. The plaintiff sought cancellation of the gift deed in respect of this property on the ground that the property was ancestral property and could not be gifted and as the gift deed cast a cloud on his right to the property, the plaintiff raised the suit for a declaration that he was the adopted son of Manraj defendant No. 1 and he also prayed for cancellation of the gift deed. Learned Counsel for the respondent has placed strong reliance on the following sentence in para 11 of the judgment:

It therefore follows that even if it is assumed for the sake of argument that the dispute in the suit related exclusively to agricultural lauds, the real and actual cause of action was the plaintiff's claim to be the adopted son of Manraj and to own the property with him in that capacity.

12. In my view the above observation does not help the respondent firstly because the suit was in respect of agricultural as well as Abadi land and so far as the Abadi land was concerned, revenue court had obviously no jurisdiction to try the suit. The case is, therefore, clearly distinguishable on this ground alone, and so far as the aforesaid observation in concerned, it, must be read in the context of the facts of the case. The following observation made by the learned Judge in para 12 goes to show that it was not this view that the question of adoption cannot be decided by a revenue court when a suit in a revenue court is the only appropriate remedy

It is true that the question of adoption can be decided by a revenue court when it is necessary for the purpose of deciding a suit based on a cause of action for which a revenue court is the only appropriate remedy.

13. To borrow the expression from the judgment of the learned judge in the present case, 'for possession of agricultural land' a suit in a revenue court is the only appropriate remedy' and, therefore, it cannot be said that the revenue court cannot decide the question whether the sale of the land is void-ab-initio. This case is, therefore, of no help to the respondent.

14. The net result of the foregoing discussion is that the present suit is exclusively triable by revenue court.

15. Accordingly I allow this appeal, set aside the judgments & decrees of the courts below and direct the trial court to return the plaint to the plaintiff for presentat on to the competent revenue court. In the circumstances of the case. I leave the parties to bear their own costs throughout.


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