Sarif and Others vs Batul and Others

Atul Kumar Jain, J.—A Civil Suit 26/2011 (Batul Bano and Ors. v. Abdul Hamid and Ors.) is said to be pending in the court of Additional Civil Judge (Junior Division) No. 2, Sikar. In that Suit an application under Order 7 Rule 11(d) C.P.C. was filed by the petitioners/defendants and that application was dismissed by the impugned order dated 05.02.2013 by that court which has been appealed against by the said defendants.

I have heard both the parties and perused the documents also. In the application Order 7 Rule 11(d) C.P.C. it was mentioned by the appellants that the suit filed by the plaintiffs was for cancellation of a Will and the counter-claim filed by the defendants was for declaration of their Khatedari Rights. It was argued by the defendants in the court below that main prayer before the court below in the matter relates to the declaration of Khatedari Rights of the parties and prayer for declaration of Will as null and void was ancillary relief only and so as per Section 207 of Rajasthan Tenancy Act 1955 and looking to the provisions of third schedule given under the Act, the suit was triable exclusively by the Revenue Court only. Appellants have argued that their application under Order 7 Rule 11(d) filed in the trial court has wrongly been dismissed by that court. Appellants rely upon the following ruling:-

"2012 (3) WLC (Raj.) 673 Vijay Singh and Another v. Buddha and Others In this case it was held that where main relief is triable by the Revenue Court, the Revenue Court will have exclusive jurisdiction to hear that matter and the ancillary civil reliefs would be immaterial. It was further held in that case that in a suit for declaration of Khatedari Rights, an ancillary relief even of cancellation of illegal sale of agricultural land will be exclusively triable by Revenue Court which can also hold that sale was void and inoperative." 3. On the other hand, following rulings appear to favour the arguments of the respondents:-

"(1) AIR 1979 Raj.(Full Bench) 142 Badri Lal and Anr. v. Moda and Ors. In this case it was held by the Full Bench of this court that if a portion of claim made in the plaint was triable by a civil court and the other portion was triable by a Revenue Court, then in the circumstances Civil Court had rightly taken cognizance of the suit though it will refer the issue regarding determination of the Tenancy Rights to the Revenue Court, if at all it was found necessary to do so. It was further held in this case 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 to be carefully looked into. All the allegations made in the plaint should be taken into consideration and not the reliefs alone claimed in the plaint (or counter-claim) for the purpose of determining the question of jurisdiction. The substance of the plaint (or counter-claim) provides a good guide to find out the true nature of the prayer of the parties." 4. It was further held that the court must be guided by the substance of the plaint and not merely by its form.

The Full Bench referred to Section 242 of the Tenancy Act also which reads as under:-

"Procedure when plea of tenancy raised in civil courts--(1) If, in any suit relating to agricultural land instituted in a civil court, any question regarding tenancy right 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 the revenue court on the issue referred to it.

(4) The finding of the revenue court on the issue referred to it shall, for the purposes of appeals, be deemed to be a part of the finding of the civil court.

The following other rulings are also conformity with the aforesaid Full Bench decision.

1957 RLW (Raj) 188 Baksha v. Gokaldan

1960 RLW 376 Nenu Ram v. Smt. Jaswanti and Co.

Hardayal and Another Vs. Jaggasingh and Others,

Rattu Vs. Mala and Another,

2013 (1) DNJ 358 Sanganer Agro and Cold Storage Pvt. Ltd. And another v. Janki Devi and Others.

After perusal of the development of the law I am of the view that the law propounded by the Full Bench of this court needs to be respected and hence the order dated 05.02.2013 of the court below dismissing the application under Order 7 Rule 11(d) C.P.C. filed by the defendants/appellants needs no interference by this court in this Revision Petition and so the Revision Petition deserves dismissal which is hereby dismissed along with the Stay Petition.

Copy of this order be sent to the court below immediately.