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Guti Devi & Others v/s State of Rajasthan & Others

    Civil Writ Petition No. 7748 of 2011

    Decided On, 01 September 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE DINESH MAHESHWARI

    For the Petitioners:S.N. Bhatt, Advocate. For the Respondents: R2 to R5, Girish Joshi, K.C. Pitawat, Advocates.



Judgment Text

Dinesh Maheshwari, J.

1. By way of this writ petition, the petitioners, who are defendants in a revenue suit for declaration, partition, recovery of possession, perpetual injunction and correction of revenue record as filed by the plaintiffs (respondents Nos. 2 to 5 herein) and pending before the Assistant Collector & Sub-Divisional Officer, Luni, Jodhpur, seek to question the order dated 29.06.2011 (Annex.7) as passed by the Board of Revenue for Rajasthan, Ajmer ('the Board') in Revision Petition No.TA/675/2011/Jodhpur. By the said order dated 29.06.2011, the Board has dismissed the revision petition filed by the petitioners against the order dated 12.01.2011 (Annex.5) as passed by the Trial Court rejecting an application moved under Order VII Rule 11 of the Code of Civil Procedure.

2. Having regard to the circumstances of the case and the subject matter of this writ petition, when the contesting parties,2 i.e., the defendants-petitioners and the plaintiffs-respondents Nos. 2 to 5 have appeared, while dispensing with service on the proforma respondents, the matter has been considered finally at this stage itself.

3. Briefly stated, the relevant background aspects are that th

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e plaintiffs-respondents Nos. 2 to 5 have filed the suit aforesaid seeking declaration of their rights in the land in dispute comprised in Khasra Nos. 415 and 416, admeasuring 39 bighas and 10 biswas and situated at village Salawas, Tehsil Luni, District Jodhpur with the submissions, inter alia, that the land in question was the khatedari land of their grandfather Shri Nenu Ram and they were having birthright therein. According to the plaintiffs, after the demise of Shri Nenu Ram, the land in question came to be wrongly recorded only in the name of their father Mangi Lal (defendant No. 15) and the other defendants illegally got the same transferred in their names and were intending to alienate the same further. The plaintiff have also claimed the reliefs of partition claiming the share each in the land in question; of recovery of possession; and of perpetual injunction for restraining the defendants from alienating the land in question or interfering with their rights.

4. The contesting defendants (petitioners herein) have filed the written statement denying the plaint allegations and stating that the land in question had been in the cultivatory possession of their ancestors. It is alleged that though the land3 in question came to be recorded in the name of Nenu Ram, the grandfather of the plaintiffs, but had never been in his possession. It has further been averred that after the death of Nenu Ram, the name of the defendant No.15 Mangi Lal (father of the plaintiffs) was recorded as the sole heir and then, he entered into a settlement with the defendants Nos. 1 to 4 on 05.11.1971. The defendants have also referred to the other litigations by and against the father of the plaintiffs wherein, according to the defendants, orders had been passed in their (defendants') favour. The contesting defendants have also asserted that the plaintiffs have no right in relation to the land in question and are not entitled to maintain the suit as filed. They have also denied accrual of any cause of action to the plaintiffs.

5. In the suit aforesaid, after framing of issues, the matter was posted for the plaintiffs' evidence but then, the defendants-petitioners proceeded to move an application under Order VII Rule 11 CPC contending, inter alia, that the plaintiffs had no cause of action for maintaining the suit. It was contended that even if the plaint allegations were taken on their face value, the land in question was that of Nenu Ram, the grandfather of the plaintiffs; and, after his demise, it came vesting in the only son of Nenu Ram, i.e., Mangi Lal, the father of the plaintiffs. According to the defendants, when Mangi Lal was holding the land in question as the sole Khatedar, the plaintiffs had no claim therein during his life time. It was, thus, submitted that the plaint was required to be rejected outright. The plaintiffs filed a reply contesting the application so moved by the defendants-petitioners.

6. The learned Trial Court, by its order dated 12.09.2011, proceeded to reject the application so moved by the petitioners under Order VII Rule 11 CPC essentially with the observations that issues had already been framed and the matter was pending for cross-examination of the plaintiffs' witnesses. Aggrieved by the order so passed by the learned Trial Court, the petitioners preferred a revision petition before the Board that has been decided by the impugned order dated 29.06.2011. The Board, though agreed with the submissions made by the petitioners that the application under Order VII Rule 11 CPC could be moved at any stage but then, observed, inter alia, that for the purpose of Order VII Rule 11 CPC, only the plaint averments were required to be looked into; and that the cause of action has been stated in paragraph 19 of the plaint. The Board also observed that the question of right of the plaintiffs in the land in question would depend on the question as to whether the same was ancestral or not; and such a question could be determined only after taking the evidence. The Board, thus, held that the suit could not be considered barred by any law at this stage; and in the result, rejected the revision petition. Aggrieved, the petitioners have filed this writ petition.

7. The learned counsel for the petitioners contends that5 the settled proposition of law that in the property of grandfather, the grand-children have no right in the life time of their father does not call for any dispute and in this indisputable position, the suit as filed by the plaintiffs, respondents could only be said to be bereft of any cause of action. The learned counsel contends that the rejection of the application by the learned Trial Court only with reference to the stage of the proceedings had not been justified nor in the proper exercise of the jurisdiction. The learned counsel further contends that the Board though agreed that the application could be filed at any stage but then, made the unacceptable observations that non-accrual of cause of action could not be considered in an application under Order VII Rule 11 CPC. The learned counsel yet further contends that the Board has rather proceeded to make the observations beyond the pleadings of the parties inasmuch as plaintiffs have not pleaded that the land in question had been the ancestral property; and the only pleading is to the effect that the land in question is the grandfather's property and the plaintiffs are claiming Khatedari rights therein. Per contra, the learned counsel for the respondents duly supports the order impugned and submits that no case for rejection of plaint under Order VII Rule 11 CPC is made out.

8. Having given a thoughtful consideration to the submissions made and having examined the material placed on record, this Court is unable to find any such error of6 jurisdiction as to call for interference in the supervisory jurisdiction under Article 227 of the Constitution of India.

9. May be that the learned Trial Court did not deal with the application under Order VII Rule 11 CPC on its merits and rejected the same with reference to the stage of the proceedings but then, in the totality of the circumstances of the case, where the issues had been framed and the matter had been posted for evidence, the learned Trial Court cannot be said to have committed a jurisdictional error in declining to consider the application at the given stage.

10. Moreover, and in any case, the Board has considered the application and even while agreeing with the petitioners that the same could be moved any stage, has observed that the cause of action for filing of the suit has been stated in paragraph 19 of the plaint; and that existence of alleged rights in the plaintiff would depend on the question regarding the nature of the property in dispute which could be determined only after taking evidence.

11. The Board has, of course, made the observations that the rights of the plaintiffs would depend on determination of the question as to whether the property was an ancestral or not but such observations are required to be viewed in the context of the fact that the Board was only dealing with a revision petition in regard to the order passed in rejection of the application under Order VII Rule 11 CPC; and looking to the frame of the suit, the Board has only indicated the7 questions likely to arise for determination. As to what kind of question would, in fact, be taken up for determination and whether the plaintiffs would be entitled for the prayed relief or not, are all the matters for consideration of the learned Trial Court at the appropriate stage but, in the ultimate analysis, for the case not directly falling within the parameters of Rule 11 of Order VII of the Code of Civil Procedure, rejection of the application moved by the petitioners cannot be said be suffering from any jurisdiction error.

12. This being a petition essentially under Article 227 of the Constitution of India and the orders impugned not suffering from any jurisdiction error, this Court finds no reason to enter into a minute analysis of the pleadings. This much is clear that the Board had the jurisdiction to pass the order impugned and has exercised its jurisdiction after considering the submissions of the parties and after examining the relevant pleadings. The errors or shortcoming sought to be indicated in the order impunged, do not make out a case for interference by this Court in the supervisory jurisdiction.

13. However, it needs to be observed that this Court is declining to interfere in the matter only for it being not within the scope of the interference under Article 227 of the Constitution of India and else, the observations, whether made by the learned Trial Court in its order dated 12.01.2011 or by the Board in its order dated 29.06.2011 shall be read as relevant only for the purpose of consideration of the8 application under Order VII Rule 11 CPC and not beyond.

14. Before concluding, yet another aspect of the matter needs to be commented upon. During the course of hearing of this petition, in response to the query made by the Court, the learned counsel for the petitioners has placed for perusal the memo of issues framed by the learned Trial Court; and on a perusal thereof, this Court has expressed reservations on the nature of the issues framed because they refer only and only to the different facets of the reliefs claimed and nothing specific has been incorporated on the disputed propositions of law and facts, as arising from the pleadings of the parties. The learned counsel for the plaintiffs-respondents Nos. 2 to 5 has, however, pointed out that an application under Order XIV Rule 5 CPC has indeed been moved by the petitioners that has already been considered by the learned Trial Court and the matter is posted for orders on the said application on 16.09.2011. In the given set of facts and circumstances, it appears appropriate to observe that the learned Trial Court would be expected to frame proper issues in the matter so as to put the parties specifically to notice on the questions likely to be considered and adjudicated.

The learned counsel for the petitioners prayed that the issues of law as arising for consideration may be ordered to be decided as preliminary issues. The submissions so made have only been noted and no comments in that regard appear requisite because as at present, the matter is being9 considered by the Trial Court on the application under Order XIV Rule 5 CPC. As to what course is to be adopted thereafter is definitely for the learned Trial Court to consider in accordance with law. In the circumstances of the case, however, it appears appropriate and hence, is observed that if any other application is moved by either of the parties for further modification, amendment or addition in the issues, the same may also be given due consideration by the learned Trial Court.

With and subject to the observations foregoing, the writ petition is dismissed.

Petition dismissed.
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