Vishnuavtar and Others vs Mawasi and Others

S.N. Modi, J.—This is second appeal by the plaintiffs in a suit for cancellation of sale deed, possession of agricultural lands and recovery of mesne profits.

The relevant facts giving rise to this appeal are like this : The dispute relates to khasra Nos. 307, 310, 320, 331 & 332 measuring 12 bighas 12 his was situate at village Bagad Rajput, tehsil Alwar. The plaintiff''s case was that during their minority the disputed property was being managed by their mother Smt. Triveni Devi (mother of Laxman Awtar) and Smt. Narbadadevi (mother of plaintiff Vishunavtar and Krishna Awtar). On 9-6-58 Smt. Triveni Devi and Smt. Narbada Devi appointed Shiv Lal and Chunni Lal as their Aam-mukhtiyars for the management of the disputed property. According to the Aam mukhtiyarnama dated 9-6-58 both the Aam mukhtiyars were authorised to actjointly. On 7-8-59 one of the Aam mukthtiyars, namely, Shiv Lal sold away the disputed lands to the defendants Nos. 1 to 8 for a sum of Rs. 1500/- vide registered sale deed Ex. A/2. The said Aam mukhtiyar also delivered possession of the suit lands is to the vendees. The plaintiffs also alleged that out of the sale-price, a sum of Rs. 500 was paid and for the balance a promissory-note was executed by the vendees. The plaintiffs further alleged chat the sale was void for want of authority & legal necessity and inadequate consideration. The plaintiffs therefore prayed that the sale deed dated 7-8-59 Ex. A/2 be cancelled. They also prayed for recovery of possession and claimed mesne profits at the rate of Rs. 300 per annum. The suit was resisted by the vendees-defendants Nos. 1 to 8 According to the defendants, the disputed lands formed part of Biswedari lands of which the plaintiffs were the mortgagees and since the biswedari was abolished by the Rajasthan Zamindari and Biswedari Abolition Act, 1959, the plaintiffs had no right, title or interest in the disputed lands. The paid Act admittedly came into force on 1-11-59. The defendants admitted that Shiv Lal and Chunni Lal were Aam-mukhtiyars of Smt. Triveni Devi and Smt. Narbada Devi. They also admitted that Shiv Lal had sold the disputed lands to them vide sale deed dated 7-8-59. They, however, denied that the sale was illegal or void for want of authority and legal necessity or adequate consideration. They further pleaded that they were in possession of the disputed lands for more than 15 years and as such they were khatedar tenants. They also denied having received possession of the suit lands by virtue of the impugned sale-deed Some technical pleas were also raised by the defendants, namely, that the State of Rajasthan was a necessary party to the suit and that the suit was triable by a revenue court under the Rajasthan Tenancy Act and not by a civil court. On the pleadings of the parties, the following issues were framed by the trial court:

Whether the defendant No. 9 was legally authorised to sell the fields of the minors and as such the sale is legal ?

In case, issue No. 1 is decided in favour of the defendants Nos. 1 to 8, whether the said sale was made for legal necessity and for benefit of the minors ?

Are the plaintiffs entitled to get mesne profits & if so, then to what extent ?

Whether the defendants Nos. 1 to 8 had acquired tenancy rights over the suit fields and what is its bearing on the present suit ?

Were the plaintiffs mortgagees of the suit fields on the date of the enforcement of the Rajasthan Biswedari Abolition Act and whether their rights came to an end thereafter?

(1) Is the State of Rajasthan a necessary party ?

(2) Whether the suit is not maintainable without impleading the State of Rajasthan ?

Whether plaintiff No. 2 was major at the time of filing the suit ?

Is the suit not triable by this court ?

Relief ?

On consideration of the evidence led by the parties, the learned trial Judge held that the sale was unauthorised and without legal necessity and therefore not binding on the plaintiffs. The trial court further held that the contesting defendants had not acquired any khatedari rights in the suit lands. According to the trial court, the plaintiffs were the khatedars of the suit lands. The trial court further came to the conclusion that initially the plaintiff'' were bsiwedars but before coming into force of the Rajasthan Zamindari and Biswedari Abolition Act, 1959, the plaintiffs had become khatedar tenants of the suit lands. Issues No. 6, 7 and 8 were decided against the defendants. On the above findings, the trial court decreed the suit but disallowed a portion of the claim in respect of the mesne profits. On appeal by the defendants, the learned Additional District Judge held that the suit was triable by a revenue court and since the civil court suffered from inherent lack of jurisdiction, he directed the trial court to return the plaint to the plaintiffs for presentation before a proper revenue court, It is against this decree that the plaintiffs have preferred this second appeal.

Arguing the appeal, Mr. Rastogi, the learned Counsel for the appellants, has strenucusly contended that the lower appellate court committed gross error in coming to the conclusion that the suit was triable by a revenue court. In the alternative, he emphasised that even if the suit was triable by a revenue court there were issues of proprietary rights involved in the case and they were required to be tried and disposed of by a civil court. He further contends that in such a situation, the case falls within the purview of the provisions of Sections 244 and 245 of the Rajasthan Tenancy Act and that being the case, it was immaterial whether the suit was initially instituted in a wrong court. It is common ground between the parties that issues Nos. 1 and 2 are the issues relating to proprietary rights in respect of the lands in dispute-Section 239 of the Rajasthan Tenancy Act provides that if in any suit or proceeding in a revenue court a question of proprietary right in respect of the land forming the subject-matter of such dispute or proceeding is raised and such question has not previously been determined by the civil court of a competent jurisdiction, the revenue court shall frame an issue on the question of proprietary right and submit the record to the competent civil court for the decision of that issue. Sub-section (2) of Section 259 of the Rajasthan Tenancy Act provides that, the civil court after re-framing the issue, if necessary, shall decide such issue & return the record together with its finding thereon to the revenue court which submitted it. Sub-section (3) provides that the revenue court shall then proceed to decide the suit accepting the finding of the civil court on the issue referred to it. Sub-section (4) is important for our purposes. It provides that an appeal from a decree of revenue court passed in a suit in which an issue involving a question of proprietary right has been decided by a civil court under Sub-section (2) shall lie to the civil court which, having regard to the valuation of the suit, has jurisdiction to hear appeals from the court to which the issue of proprietary right had been referred. Sub-section (5) provides that a second appeal from a decree or order passed by a civil court in appeal under Sub-section (4) shall lie to the High Court on any of the grounds mentioned in Section 100 of the Code of Civil Procedure, 1908. Section 244 provides that when in a suit instituted in a civil of revenue court an appea1 lies to a civil court, an objection that the suit was instituted in the wrong court shall not be entertained by the appellate court, unless such objection was taken in the court of first instance, and the appellate court shall dispose of the appeal as if the suit had been institute in the right court. Section 245 provides that if in any such an objection was made in the court of first instance and the appellate court has before it all the material necessary for the determination of the suit, it shall dispose of the appeal as if the suit had been instituted in the right court. In the present case, as already pointed out above the question of proprietary right was involved and even if the suit had been instituted in the revenue court, issues Nos. 1 and 2 would have been referred to the civil court for decision as provided in Sections 239 of the Rajasthan Tenancy Act and an appeal from the decision of the revenue court would have laid to the civil court as provided u/s 242(4) of the Rajasthan Tenancy Act. In the present case, an objection as to jurisdiction of the civil court to decide, the suit was no doubt raised in the trial court but that would not make any difference as it is not in dispute that all the material necessary for determination of the suit was available to the appellate court and it could have decided the matter on merits. Since an appeal lay to the civil court, the case was fully covered by Section 244 and 245 of the Rajasthan Tenancy Act. That being the case even if the suit was initially triable by a revenue court, that would be, of no consequence and the appellate court had the authority to decide the appeal as the material necessary for the determination of the appeal was present on the record According to Sub-section (3) of Section 245, it was not open for the defendants in such a case to contend that the suit was not tried by a competent court. This aspect of the case was totally ignored by the first appellate court.

The first appellate court has found that the principal relief in the case was of possession and mesne profits and not the cancellation of the sale-deed. This finding is also unsustainable A bare reading of the plaint would reveal that the principal relief in the present suit is the cancellation of the sals-deed and the reliefs for possession and mesne profits are merely consequential to the relief of cancellation of the sale-deed, the reason being that the sale-deed was executed by one of the Aam mukhtiyars of the plaintiffs'' guardians. The plaintiffs in the circumstances could not have claimed possession of the disputed lands without asking for cancellation of the sale deed. The principal relief therefore was cancellation of the sale-deed and the reliefs for possession and mesne profits were merely consequential. In this view of the matter, the suit was rightly filed in the civil court.

It is next contended that the courts below committed error in holding that the plaintiffs were not the khatedar tenants and their right, title and interest in the suit lands came to an end on coming into force of the Rajasthan Zamindari and Biswedari Abolition Act. This finding is also such which cannot be sustained, for, some important documents which were on the the record were not at all considered by the learned Additional District Judge. The finding of the learned Additional District Judge is mostly based on Ex. 13 and Ex. 14 which too were not properly considered by the learned Additional District Judge. He has not at all considered Ex. 5 which is a sale-deed of the mortgagee''s right in favour of the plaintiffs. It is a registered sale-deed dated 1st July, 1953. The learned Additional District Judge has also not taken into consideration Ex.12 dated 9th June, 1958 by which the khatedari rights were transferred to the plaintiffs by their father. Another important document which has not been considered is Ex. 1. It is the statement of one of the defendants. The most important document on the record is Ex. 15 which is the judgment, of the Sub-Divisional Officer, Alwar in case instituted by the contesting defendants against the Aam-mukhtiyars of the plaintiffs. In this suit, it was prayed that the khasra girdawaris for the last 10 years be corrected as they wrongly existed in the names of the plaintiffs. This suit was dismissed by the Sub-Divisional Officer and the decision was upheld by the Board of Revenue by its judgment dated 7-8-58 (Ex. 16). on the basis of the compromise. Becides these documents there are other documents also which have not been considered by the learned Additional District Judge. They are (1) Khasra Girdawaris for Smt. years 2011 to 2014 (Ex. 10) (2) Mutation in favour of the plaintiffs as Khatedar tenants (Ex.11), (3) Khasra Girdawaris for Smt. years 2016 to 2019 Ex. A/1 and (4) sale deed of the Biswedari rights to the plaintiff on 21-8-59(Ex. A/5). The failure on the part of the learned Additional District Judge to consider these important documents completely vitiates the decision given by him whereby he held the plaintiffs not to be the khatedar tenants of the disputed lands. It is also significant to note that the learned Additional District Judge came to the conclusion that by virtue of Section 5 of the Raj. Zamindari and Biswedari Abolition Act, 1959, the State became the owner of the lands in dispute and the defendants were merely trespassers. If this finding is correct, then the finding on issue no 6 that the State of Rajasthan is not a necessary party cannot be sustained. In view of the fact that learned Additional District Judge has not taken into consideration the important evidence in the case, there is no alternative but to remand the case to the Court of the Additional District Judge. Alwar, for fresh decision on merits after hearing the parties.

The learned Counsel for the appellants also urged that although a cross-objection was filed on their behalf, the learned Additional District Judge did not dispose of that objection. If that is so. the learned Additional District Judge shall also dispose of the cross-objection in accordance with law.

In the result, the appeal is allowed, the judgment and decree of the learned Additional District Judge, Alwar, are set aside and the case is remanded back to him for decision on mertis after hearing the parties. It may also be mentioned here that the case is an old one and therefore the learned Additional District Judge would give top priority in disposing of the appeal. The parties shall bear their own costs in this appeal.