Allowed

Mohd. Gulsher Khan v. Umardaraj Khan

Rajasthan HC11 Jul 2023CFA/131/2023

Case brief

AI extract

What is this about?

In this civil first appeal, the High Court quashed the Additional District Judge's order dismissing a suit for declaration and permanent injunction. The lower court had refused jurisdiction on the plea of agricultural land; however, the High Court noted the defendants' own past admissions before the Revenue Court that the land is 'abadi', holding the Civil Court had jurisdiction and the defendants

What did the court decide?

The impugned order dated 03.02.2023 dismissing the suit for declaration and permanent injunction is quashed and set aside. The stay petition is disposed of.

Mohd. Gulsher Khan Vs Umardaraj Khan — Property and Title | Rajasthan HC (2023)

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[2023:RJ-JD:20667]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil First Appeal No. 131/2023

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Mohd. Gulsher Khan S/o Ashraf Khan, Aged About 58 Years, Resident Of Chhapari Gate, Deedwana District Nagaur.

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----Appellant

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Versus

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Umardaraj Khan Mother/o Sakina, Aged About 70 Years, Father Hussain Khan, Resident Of Chhapari Gate, Deedwana District Nagaur.

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Jamila @ Jammo W/o Late Bundu Khan, Aged About 75 Years, Resident Of Begana Colony, Railway Fatak, Deedwana, District Nagaur.

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Tajbano D/o Late Bundu Khan, Aged About 54 Years, W/o Murad Khan, Resident Of Begana Colony, Railway Fatak, Deedwana, District Nagaur.

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Ajhar Hussain S/o Shakir Hussain,0 Aged About 28 Years,

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Salman Khan S/o Mohd. Jabir, Aged About 24 Years,

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Aman Khan S/o Jakiar Hussain, Aged About 18 Years, All residents Of Pathano Ki Pol, Deedwana, District Nagaur.

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Ummed Khan S/o Ashraf Khan, Aged About 60 Years,

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Jagsher Khan S/o Ashraf Khan, Aged About 55 Years, 9. Noori W/o Ashraf Khan, Aged About 88 Years, All residents Of Chhapari Gate, Deedwana District Nagaur.

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Sub Registrar, Deedwana District Nagaur.

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----Respondents

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For Appellant(s)	: Mr.	Ramawatar Singh
	Mr.	S.S. Gour
For Respondent(s)	: Mr.	Bharat Boob

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HON'BLE MS. JUSTICE REKHA BORANA Order

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11/07/2023

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The present appeal has been preferred against the order dated 03.02.2023 passed by Additional District Judge, Deedwana, District Nagaur in Civil Suit No.07/2022 whereby the application under Order 7 Rule 11 read with Section 151 of Code of Civil Procedure as preferred by the defendants has been allowed and as

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[CFA-131/2023]

(2 of 5)

a consequence, the suit for declaration and permanent injunction as preferred by the plaintiff has been dismissed.

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The learned Court below has observed that the land in question is an agricultural land and therefore, the relief of declaration and injunction qua an agricultural land can be granted only by a Revenue Court and hence, the suit is not maintainable before a Civil Court.

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Before proceeding further, it is relevant to note that earlier a suit for permanent injunction was preferred by the plaintiff before the Revenue Court and in the said suit, an application under Order 7 Rule 11, CPC was preferred by the defendants with the submission that the land in question has been converted into ‘abadi’ land and has been entered in the khatedari of Municipal Board, Deedwana and therefore, the Revenue Court does not have jurisdiction to entertain the suit.

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The said application under Order 7 Rule 11, CPC as preferred by the defendants was allowed by the Revenue Court on 18.05.2022 and consequently, the suit was dismissed.

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After the said suit being dismissed, the present suit had been preferred by the plaintiff before the Civil Court on 17.09.2022. 6. In view of the above facts, the pleadings as made by the defendants in the application under Order 7 Rule 11, CPC before the Revenue Court become relevant. A copy of the application has been placed on record by learned counsel for the appellant today as per the direction of this Court.

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The defendants had pleaded as under:-

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“1;g gSa fd oknh ds }kjk ,d okni= ckcr~ LFkk;h fu’ks/kkKk dk [ksr [kljk uEcj 1213 jdck 28 ch?kk 03 fcLok okds

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“kjgn MhMokuk ds lEca/k esa is”k fd;k gqvk gSa tks okjrs tokc nkok fu;r gSA

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2- ;g gSa fd mDr okni= esa of.kZr [kljk uEcjku dh Hkwfe orZeku esa ,oa okn izLrqr djrs le; uxjikfydk e.My MhMokuk ds [kkrsnkjh dh Fkh ,oa orZeku esa gSA tks uxjikfydk ds uke pyh vk jgh gSA

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3- ;g gSa fd mDr Hkwfe vkcknh Hkwfe gSa ,oa vkcknh Hkwfe gksus ls Jheku ds U;k;ky; dks mDr okn dh lquokbZ dk {ks=kf/kdkj o Jo.kkf/kdkj ugha gSA blds ckotwn oknh us Jheku ds U;k;ky; esa mDr okn is”k dj fn;k gSa ,oa mDr [kljk uEcj esa ls vkcknh ds iV~Vs Hkh uxjikfydk MhMokuk }kjk cuk;s tk pqds gSaA

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4- ;g gSa fd vkcknh {ks= dh Hkwfe dk lquokbZ dk vf/kdkj dsoy ek= flfoy U;k;ky; dks gSa ,oa jktLo jsdMZ ds vuqlkj mDr Hkwfe vkcknh Hkwfe gSa ,oa izkFkhZ }kjk tfj;s jftLVªh [kjhn lqnk Hkwfe gSaA”

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The fact that the suit was dismissed by the Revenue Court was even brought before and considered by the Civil Court. It is admitted on record that an appeal against the order dated 18.05.2022 had been preferred by the plaintiff before the Revenue Appellate Authority but the same was subsequently withdrawn as the present suit was preferred before the Civil Court.

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Learned counsel for the respondents submitted that the present suit has been preferred for a relief for declaration of the sale deed to be null and void qua the rights of the plaintiff and the said relief can be granted only by the Revenue Court.

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Heard the parties and perused the material available on record.

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Consequently, an interesting situation has arisen in the present matter. In a suit for injunction preferred before the Revenue Court, the defendants prayed that the land being converted into ‘abadi’, the Revenue Court would have no jurisdiction to hear the same and considering the said averment of the defendants, the suit was dismissed by the Revenue Court.

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Now, in the suit preferred before the Civil Court, the defendants have pleaded that the land is an agricultural land and therefore, the Civil Court does not have the jurisdiction to entertain the same. The said application has been allowed by the Civil Court also with the finding that it does not have the jurisdiction to entertain the suit. Meaning thereby, the plaintiff has been left remediless.

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It is admitted on record and it was rather a statement of the defendants themselves that the land has been converted into ‘abadi’ and has been entered in the khatedari of Municipal Board, Deedwana. It had further been the averment of the defendants that even the pattas considering the land to be ‘abadi’, have been issued by Municipal Board, Nagaur. In view of the specific statements as made by the defendants themselves, the Revenue Court proceeded on to allow the application under Order 7 Rule 11, CPC and dismissed the suit of the plaintiff.

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Any litigant/party to the litigation cannot be permitted to approbate and reprobate. Evidently, the defendants have taken two shifting stands before two different courts. The intention of the legislation cannot be to penalise any litigant so as to leave him remediless.

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In view of the specific fact that the defendants themselves averred and admitted that the land in question is an ‘abadi’ land governed by the Municipal Authority and the Revenue Court also having decided so, this Court is of the specific opinion that the suit therefore would be maintainable before the Civil Court. The order impugned dated 03.02.2023 passed by Additional District Judge, Deedwana, District Nagaur is therefore quashed and set aside.

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Accordingly, the present appeal is allowed .

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The stay petition also stands disposed of.

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(REKHA BORANA),J

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417-KashishS/-

Mohd. Gulsher Khan v. Umardaraj Khan

Case brief

What is this about?

What did the court decide?

Mohd. Gulsher Khan v. Umardaraj Khan

Case brief

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