Allowed

Kailash Chandra Goyal S/O Late Sh. Jagdish Prasad Goyal v. Ramesh Chandra Goyal S/O Late Sh. Kedar Prasad Goyal

Rajasthan HC11 Jan 2023CFA/198/2022

Case brief

AI extract

What is this about?

In this civil first appeal, the High Court of Rajasthan held that objections challenging the jurisdiction of the Civil Court to cancellation of sale deeds and correction of revenue records cannot be decided leave evidence. The trial Court's order dismissing the suit under Order 7 Rule 11 CPC was set aside.

What did the court decide?

Order dated 29.11.2021 of the trial Court is set aside and the original suit is restored for trial to be concluded within one year.

Kailash Chandra Goyal S/O Late Sh. Jagdish Prasad Goyal… — Property and Title | Rajasthan HC (2023)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil First Appeal No. 198/2022

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Kailash Chandra Goyal S/o Late Sh. Jagdish Prasad Goyal, Aged About 67 Years, Resident Of Gram Bonli, Teshil Bonli District Sawai Madhopur At Present Resident Plot No. 43, Usha Colony, Malviya Nagar, Jaipur (Raj.)

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----Appellant/plaintiff

¶5

Versus

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Ramesh Chandra Goyal S/o Late Sh. Kedar Prasad Goyal, Resident Of Village Bonli, Kotpada, Tehsil Bonli, District Sawai Madhopur (Raj.).

¶7

Suresh Chandra Goyal S/o Late Sh. Kedar Prasad Goyal, Resident Of Village Bonli, Kotpada, Tehsil Bonli, District Sawai Madhopur (Raj.).

¶8

Mahesh Chandra Goyal S/o Late Sh. Kedar Prasad Goyal, Resident Of Village Bonli, Kotpada, Tehsil Bonli, District Sawai Madhopur (Raj.).

¶9

Dinesh Chandra Goyal S/o Late Sh. Kedar Prasad Goyal, Resident Of Village Bonli, Kotpada, Tehsil Bonli, District Sawai Madhopur (Raj.).

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Smt. Gulkandi Devi W/o Late Shri Kedar Prasad Goyal, Resident Of Village Bonli, Kotpada, Tehsil Bonli, District Sawai Madhopur (Raj.). (Name Deleted Due To Death)

¶11

Radhey Shyam S/o Late Sh. Jagdish Prasad Goyal, Resident Of Village Bonli, Tehsil Bonli, District Sawai Madhopur And At Presently R/o Plot No.4, Sector-7, Malviya Nagar, Jaipur.

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Atmanandpuri S/o Sh. Gulabpuri, Resident Of Village Bonli, Kotpada, Tehsil Bonli, District Sawai Madhopur (Raj.). (Deceased)

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7/1. Rajendra Puri S/o Late Shri Atmanandpuri, Resident Of Village Bonli, Purvio Ka Mohalla, Tehsil Bonli, District Sawai Madhopur (Raj.)

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7/2 Devendra Puri S/o Late Shri Atmanandpuri, Resident Of Village Bonli, Purvio Ka Mohalla, Tehsil Bonli, District Sawai Madhopur (Raj.)

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7/3. Pyarelal Puri S/o Late Shri Atmanandpuri, Resident Of Village Bonli, Purvio Ka Mohalla, Tehsil Bonli, District

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(2 of 6)

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[CFA-198/2022]

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Sawai Madhopur (Raj.) (Deceased)

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7/3/1 Smt. Sunila Puri W/o Late Shri Pyarelal Puri D/o Sh. Sankar Giri, Resident Of Shahid Chowk, Nearby Old Kabutar House, Bhilwara (Raj.) (Proceeding Ex-Parte)

¶20

7/3/2 Kumari Munni D/o Late Shri Payrelal Puri, (Minor) Natural Guardian Smt. Sunila Puri Through Sh. Sankar Giri, Resident Of Shahid Chowk, Nearby Old Kabutar House, Bhilwara (Raj.) (Proceeding Ex-Parte)

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7/4. Ravi Puri S/o Late Shri Atmanandpuri, Resident Of Village Bonli, Purvio Ka Mohalla, Tehsil Bonli, District Sawai Madhopur (Raj.)

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7/5. Smt. Shivi Devi W/o Late Shri Atmanandpuri, Aged About 90 Years, Resident Of Village Bonli, Purvio Ka Mohalla, Tehsil Bonli, District Sawai Madhopur (Raj.)

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Shivdayalpuri S/o Sh. Gulabpuri, Resident Of Village Bonli, Purvio Ka Mohalla, Tehsil Bonli, District Sawai Madhopur (Raj.)

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Radheyshyam Puri S/o Sh. Kalayanpuri, Resident Of Village Bonli, Purvio Ka Mohalla, Tehsil Bonli, District Sawai Madhopur (Raj.)

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Mahesh Puri S/o Sh. Kalayanpuri, Resident Of Village Bonli, Purvio Ka Mohalla, Tehsil Bonli, District Sawai Madhopur (Raj.)

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Smt. Shanti W/o Sh. Kalayanpuri, Resident Of Village Bonli, Purvio Ka Mohalla, Tehsil Bonli, District Sawai Madhopur (Raj.) ( Deceased during trial )

¶27

State Of Rajasthan, Through District Collector Sawai Madhopur.

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Tehsildar, Land Holder And Sub-Registrar Officer, Bonli, Teshil Bonli , District Sawai Madhopur.

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Smt. Sushila Bai D/o Late Sh. Kedar Prasad Goyal, And D/o Smt. Gulkandi Devi W/o Shri Ratan Lal Agrawal, Resident Of Village Pipalda, Tehsil Bonli, District Sawai Madhopur (Raj.) (Proceeding Ex-Parte Vide Order Dated 08.09.2016)

¶30

Smt. Lalita Bai D/o Late Sh. Kedar Prasad Goyal, And D/o Smt. Gulkandi Devi W/o Shri Ashok Kumar Agrawal, Resident Of Old Sabji Mandi, Nearby Pandya Timber Merchant, Sunaro Ka Kuwa, City Sawai Madhopur, District Sawai Madhopur. (Proceeding Ex-Parte Vide Order Dated

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(3 of 6) [CFA-198/2022]

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16.11.2016)

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Manager, State Bank Of Bikaner And Jaipur (At Present Sbi) Branch, Village Bonli, Teshil Bonli, District Sawai Madhopur (Raj.) (Proceeding Ex-Parte Vide Order Dated 08.09.2016)

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Rukmani Devi W/o Sh. Radheshyam Agrawal, D/o Late Shri Jagdish Agrawal, Resident Of Laxminarayanpuri, Jaipur (Raj.).

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----Respondents/Defendants

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For Appellant(s) : Ms. Sonia Shandilya, Adv. For Respondent(s) : Mr. Dharmendra Sharma, Adv. on behalf of respondent Nos.1 to 4, 7/1, 7/2, 7/3/1, 7/3/2, 7/4, 7/5, 8, 9, 10, 14 & 16 Mr. Mohd. Adil, Adv. on behalf of respondent No.17 Mr. Yellop Singh, Adv. on behalf of Mr. Suruchi Kasliwal, Adv. on behalf of respondent No.16

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HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA

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Order

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ORDER RESERVED ON :: 06.01.2023 ORDER PRONOUNCED ON :: 11.01.2023

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At the request of the learned counsel for the appellant/plaintiff (for short ‘the plaintiff’), service of notice upon unserved respondents is dispensed with at the risk of the plaintiff.

¶41

With the consent of learned counsel for the parties, arguments have been heard and appeal is being decided finally at this stage.

¶42

The present civil first appeal has been filed against the order dated 29.11.2021 passed by the learned Additional District & Sessions Judge, Sawaimadhopur (for Short ‘the trial Court’) in Civil Suit No.366/2014 titled as “Kailash Chandra Goyal Vs.

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(4 of 6)

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[CFA-198/2022]

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Ramesh Chandra & Ors.”, whereby the trial Court has allowed the application filed by the respondents-defendant Nos.1 to 4(for short ‘the defendants) under Order 7 Rule 11 CPC and thereby dismissed the suit filed by the plaintiff.

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Brief facts of the case are that the plaintiff has filed a suit against the defendants for cancellation of sale deeds dated 06.11.1971 and 06.01.1973, correction of the entries in the revenue record and permanent injunction. The plaintiff in his plaint clearly stated that the land mentioned in para No.1 of the plaint (in the revenue records) is in the name of Raghunath Goyal. Shri Narayan and Jagdish Prasad sons of Raghunath Prasad each having half-half share therein. The said land was undivided and in the joint ownership which was not partitioned by metes and bounds. After death of Jagdish Prasad Goyal, Kedar Prasad Goyal conspired with Atmanandpuri, Kalayanpuri and Shivdayalpuri sons of Gulabpuri sold the land mentioned in para No.4 of the plaint through sale deed dated 06.11.1971 and 06.01.1973 by committing forgery and concocting forged signature of late Shri Jagdish Prasad Goyal. Mutation was also opened in the name of the purchaser. Learned counsel for the plaintiff further submits that the written statement was filed by the defendants and issues were framed. Said suit was filed in the year 2003. Defendant Nos.1 to 4 had filed an application under Order 7 Rule 11 CPC on 11.11.2021, which has wrongly been allowed by the learned trial Court vide order dated 29.11.2021. Learned counsel for the plaintiff further submits that the main relief of the plaintiff is that the plaintiff wanted to cancel the sale deeds dated 06.11.1971 and 06.01.1973. Learned counsel for the plaintiff also submits that the sale deed can only be cancelled by the Civil Court. Other relief

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(5 of 6)

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[CFA-198/2022]

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sought by the plaintiff are ancillary. Suit filed by the plaintiff is composite suit. Issues have been framed by the learned trial Court after pleading of the parties. Objections which were taken in the application by the defendants could be decided only after leading evidence by the parties in the civil suit. So, order of the learned trial Court be set-aside.

¶50

Learned counsel for the plaintiff has placed reliance upon the following judgments: (1) Bhagwati Kunwar Vs. Gulab Singh reported in 2019 SCC Online Raj. 2263 ; (2) Nathu Vs. Bhanwarlal & Ors. reported in (1998) 1 RLW 334 ; (3) Patrick Simmon & Ors. Vs. Shri Saint Anthony’s School Education Association reported in (2015) 2 DNJ (Raj.) 593 ; (4) Pratapi Vs. Jhamku & Ors. reported in 2013 (3) DNJ (Raj.) 1112 ; (5) Gurucharansingh vs. Gurdayal Kaur in D.B.C.W.P. No.768/1979 decided on 22.01.1981 ; (6) J anki Devi Vs. Maniram in SBCFA No.106/1990 decided on 13.02.2000 ; (7) Bhau Ram Vs. Janak Singh reported in 2012(2) WLC (SC) Civil 254 ; (8) Ramswaroop Vs. Kesar reported in 2015 WLC (Raj.) UC 563 .

¶51

Learned counsel for the defendant Nos. 1 to 4 has opposed the arguments advanced by learned counsel for the plaintiff and submitted that the learned trial Court has rightly allowed the application filed by the defendants and dismissed the suit because relief sought by the plaintiff can only be given by the Revenue Court because without declaration of the Khatedari rights, plaintiff cannot get the mutation cancelled and get corrected the entries in the revenue record. So, appeal be dismissed.

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(6 of 6)

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[CFA-198/2022]

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I have considered the arguments advanced by learned counsel for the plaintiff as well as learned counsel for the defendant Nos.1 to 4.

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It is an admitted position that the plaintiff had filed a civil suit in the year 2003 claiming relief of cancellation of the sale deeds, and correction of entries in the revenue record etc. As per averments of the plaintiff, the plaintiff is seeking relief mainly for cancellation of the sale deed. It is also an admitted position that the sale deed can only be cancelled by the Civil Court after adducing evidences by the parties. The learned court below had framed the issues on 06.08.2007 in which learned court below had already framed the issues regarding jurisdiction of this Court. So, in my considered opinion, learned trial Court wrongly allowed the application under Order 7 Rule 11 CPC filed by the defendants because objection raised by the defendants can only be decided only after leading evidence by the parties. So, order dated 29.11.2021 passed by the learned trial Court deserves to be setaside.

¶56

Accordingly, appeal filed by the plaintiff is allowed. Judgment & decree dated 29.11.2021 passed by the learned trial Court is set-aside. Learned trial Court is directed to decide the suit filed by the plaintiff within a year from the date of receipt of certified copy of this order.

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Pending application/s if any, stand/s disposed of.

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(NARENDRA SINGH DHADDHA),J

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Gourav/45

Kailash Chandra Goyal S/O Late Sh. Jagdish Prasad Goyal v. Ramesh Chandra Goyal S/O Late Sh. Kedar Prasad Goyal

Case brief

What is this about?

What did the court decide?

Kailash Chandra Goyal S/O Late Sh. Jagdish Prasad Goyal v. Ramesh Chandra Goyal S/O Late Sh. Kedar Prasad Goyal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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