The Union of India and Others vs Sawal Ram and Others

Sangeet Lodha, J.�This petition is directed against order dated 27.11.2000 of Board of Revenue, Rajasthan, whereby a revision petition preferred by the petitioners herein under Section 230 of Rajasthan Tenancy Act, 1955 (for short "the Act") against the order dated 19.9.95 passed by the Sub Divisional Officer (SDO), Jodhpur, rejecting an application under Order VII Rule 11 CPC, stands dismissed.

The relevant facts are that the respondent No. 1 herein filed a suit under Section 88 & 188 of the Act before the SDO, Jodhpur with respect to disputed land comprising khasra No. 74 ad measuring 114 bighas situated in village-Tanawara. The respondent claimed to be in cultivatory possession of the land since Samvat 2012, which is recorded in the revenue record as ''gair mumkin railway land''. The petitioners herein preferred an application under Order VII Rule 11 CPC stating that before filing the suit, no notice under Section 80 CPC was served upon the Union of India and therefore, the suit is not maintainable. That apart, it was pleaded that the respondent is neither khatedar tenant of the land nor in possession thereof and therefore, he being not a tenant in terms of Section 5(43) of the Act, the suit preferred is not maintainable.

After due consideration of the rival submissions, the application preferred was rejected by the SDO, Jodhpur vide order dated 19.9.95 observing that the notice under Section 80 CPC dated 13.5.94 served upon the respondent is available on record and the matter with regard to possession over the land stands verified from the record.

Aggrieved by the order dated 19.9.95, the petitioners herein preferred a revision petition before the Board of Revenue, which stands dismissed by the order impugned. Hence, this petition.

Learned counsel for the petitioners contended that the Board of Revenue has seriously erred in dismissing the revision petition preferred on behalf of the petitioners questioning the legality of order dated 19.9.95 passed by the SDO, Jodhpur. Learned counsel submitted that admittedly the land is recorded in the revenue record as khatedari land of railway and therefore, by virtue of provisions of Section 16 of the Act, no khatedari right can be claimed in the land included within railway boundaries. Learned counsel submitted that accrual of khatedari rights in the railway land being barred by law, the suit was liable to be rejected in terms of provision of Order VII Rule 11(d) CPC. Learned counsel submitted that the respondent claimed himself to be tenant in the land from Samvat 2014 and therefore, no khatedari right accrues in his favour automatically under Section 15 of the Act. Accordingly, it is submitted that the plaint as framed deserves to be rejected.

On the other hand, counsel appearing for the respondent submitted that the matter with regard to the petitioners'' possession over the land in question and accrual of the khatedari rights in his favour is matter of evidence and on the basis of the averments made in the petition, by no stretch of imagination, it can be said, the plaint as framed, is barred by law. Learned counsel submitted that the rejection of the plaint was sought on the ground that notice under Section 80 CPC was not served upon the petitioners herein, whereas the court below has specifically observed that notice served under Section 80 CPC has already been placed on record, in this view of the matter, the rejection of the application preferred on behalf of the petitioners herein, cannot be faulted with.

I have considered the rival submissions and perused the material on record.

It is settled law that while deciding an application for rejection of the plaint under Order VII Rule 11(d), the court is not competent to go into correctness or otherwise of the allegations contained in the plaint. The plaint can only be rejected if from bare perusal of the statement in the plaint without any addition or subtraction it appears to be barred by law.

It is pertinent to note that the application under Order VII Rule 11 CPC was preferred by the petitioners herein before the SDO, Jodhpur on two grounds namely; (i) the respondent herein is not tenant within the meaning of Section 5(43) of the Act and therefore, suit is not maintainable and (ii) the notice under Section 80 CPC has not been served upon the Union of India and therefore, the suit instituted without compliance of the mandatory provision, is not maintainable.

It is to be noticed that the petitioners have made specific averment in para No. 10 of the plaint that the notice dated 13.5.94 was served upon the petitioners herein. That apart, the court below has categorically observed that notice dated 13.5.94 served upon the respondent, is available on record. It is open for the respondent to dispute the service of the notice as alleged while filing the written statement, but then, from the perusal of the plaint, in no manner, it could be inferred that no notice under Section 80 CPC was served upon the petitioners by the respondent before filing the suit and therefore, the question of rejection of the plaint on this count does not arise.

Coming to the question of respondent being not khatedar tenant, it is to be noticed that the suit has been filed by the respondent for declaring him khatedar tenant claiming himself to be in possession of the land at the time of commencement of the Act and therefore, he cannot be non suited at this stage on the ground that he is not recorded as khatedar tenant of the land in the record of rights. Rather, in the instant case, the respondent has claimed khatedari rights over the land in question being in possession thereof since Samvat 2012 and have also prayed for correction in the revenue record. In this view of the matter, the plaint as framed cannot be construed to be barred by law.

The stand of the railway that the respondent claims to be in possession of the land since Samvat 2014 and therefore, no khatedari rights could accrue to him by virtue of provisions of Section 15 of the Act, is absolutely incorrect inasmuch as, in the plaint filed, the respondent has claimed to be in possession of the land prior to Samvat 2012. Be that as it may, the question with regard to accrual of khatedari rights in favour of the respondent even on the basis of the cultivatory possession is to be decided by the trial court after due consideration of the evidence to be led by the parties.

Moreover, if according to the petitioners for any reason, the suit preferred is not maintainable then, it is always open for it to take categorical stand in this regard in the written statement to be filed and make a prayer to the court concerned to decide the issue with regard to maintainability of the suit at preliminary issue. But, in any case, the plaint as framed cannot be rejected under Order VII Rule 11 CPC treated it to be barred by law.

For the aforementioned reasons, in the considered opinion of this court, the order impugned passed by the Board of Revenue does not suffer from any infirmity, illegality or jurisdictional error so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.

In the result, the petition fails, it is hereby dismissed. No order as to costs.