Dismissed

Municipal Council v. Kishan Singh

Rajasthan HC4 Nov 2023CR/153/2019

Case brief

AI extract

What is this about?

Held that the impugned order rejecting the petition under Order 7 Rule 11 CPC did not deserve interference. The court observed that cause of action existed and the suit for permanent injunction regarding possession was maintainable even if specific performance wasn't granted.

What did the court decide?

Revision petition and stay petition dismissed as the impugned order was in consonance with law.

Municipal Council Vs Kishan Singh — Specific Performance | Rajasthan HC (2023)

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[2023:RJ-JD:37780]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Revision Petition No. 153/2019

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Municipal Council, Nagaur Through Its Commissioner

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----Petitioner

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Versus

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Kishan Singh S/o Shri Ramkaran, B/c Jat Bhukar, R/o Nagaur Road, Degana, Tehsil Degana, District Nagaur.

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Baldev S/o Shri Likhma Ram Jat, R/o Behind Panchayat Samiti, Manasar, Tehsil And District Nagaur.

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Sita Ram S/o Shri Kishan Ji, B/c Mali, R/o Naya Darwaja, Khodon Ka Bas, Nagaur.

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State Of Rajasthan, Through District Collector, Nagaur. 5. Tehsildar, Nagaur.

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----Respondents

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For Petitioner(s) : Mr. Rajesh Joshi, Sr. Advocate with Mr. Deepesh A. Purohit

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HON'BLE MS. JUSTICE REKHA BORANA

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Judgment

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04/11/2023

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The present revision petition has been preferred against the order dated 07.08.2019 passed by Additional District Judge No.2, Nagaur in Civil Suit No.68/2011 whereby in a suit for specific performance of contract, an application as preferred by the petitioner defendant No.4 Municipal Council under Order 7 Rule 11, CPC has been rejected.

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The ground as raised by defendant No.4 in the application was that defendant No.1 Sita Ram had been declared to be a trespasser by the revenue Court which order became final and hence, the defendant’s title itself being under a cloud, it could not have been transferred to the plaintiff vide any document. It was

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further submitted that the land in question was a public land being ‘agore’ land and land of ‘way’ and hence, even otherwise no agreement qua the said land could have been executed. The agreement, if any, was void ab initio and therefore, no decree qua such document can be passed. Hence, a suit, wherein no effective relief can be granted, cannot be held to be maintainable. It was further submitted that present was a collusive suit qua a Government land and hence, deserves to be dismissed at the very inception.

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The application as preferred by defendant No.4 has been rejected by the Court below with an observation that the defendant has failed to show that the suit was barred by any law and further that the issue whether the plaintiff is entitled to any decree for specific performance, could be decided only after the suit being adjudicated on merits.

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Learned counsel for the petitioner submitted that no cause of action has been pleaded by the plaintiff and therefore, the plaint was liable to be rejected. In support of his contention, counsel relied upon the judgment passed by Hon’ble Supreme Court in the case of Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra) dead through Legal Representatives & Ors., (2020) 7 SCC 366.

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Heard learned counsel for the petitioner and perused the material available on record.

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A bare perusal of the plaint makes it clear that the plaintiff had come up with the specific case that the land averred to be a public land by the defendants has wrongly been averred to be so. Further, it has specifically been averred that no way is existing on

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the site and therefore, the mutation entries are wrong. It has further been averred that despite continuous requests, defendant No.1 has failed to execute the sale deed in favour of the plaintiff in terms of the agreement to sell and hence, a cause of action has arisen to the plaintiff to lay the present suit.

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In the opinion of this Court, the above averments clearly reflect a cause of action having arisen to the plaintiff for the present suit. The pleadings regarding the cause of action have definitely been made in the plaint and the same cannot be rejected on the said ground.

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This Court is of the clear opinion that the finding as reached by the Court below is in consonance with law and does not deserve any interference. The opinion of this Court is based on the following reasons:-

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i) The present is a suit not only for specific performance of contract but also for permanent injunction. If the averment of defendant No.4 to the extent that defendant No.1 had been declared to be a trespasser on the Government land is admitted on the face of it, the same ipso facto proves the fact of the defendant being in possession.

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ii) This Court cannot ignore the fact that the present suit is also for permanent injunction with a prayer to restrain the defendants from interfering with the possession of the plaintiff. Even if it is assumed that no decree for specific performance can be granted in the present matter because of the land being a public land, it cannot be assumed that the suit for relief for injunction on the basis of possession would also not be maintainable.

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(4 of 4)

iii) The effect of the orders passed by the revenue courts declaring the defendant to be a trespasser, on the present proceedings, could only be decided after adjudication of the same on merits. Further, while allowing the application of defendant No.4 for impleadment in the present suit and while rejecting the writ petition as preferred by the plaintiff against the said order, the writ court also observed that the same would be necessary for proper adjudication of the issues involved in the present suit.

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Meaning thereby, the adjudication of the suit on merits was implied while passing the said order also.

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iv) This Court cannot also ignore the fact that the present is a suit for specific performance and even if the Court reaches to the conclusion that a decree for specific performance cannot be granted, the plaintiff can definitely be held entitled for a decree for the refund of the consideration amount, if prayed for.

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By all means, it cannot be held that the plaint is liable to be rejected on application under Order 7 Rule 11, CPC. The impugned order does not deserve any interference and hence, the revision petition is dismissed .

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Stay petition and all pending applications, if any, also stand dismissed.

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(REKHA BORANA),J

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46-KashishS/-

Municipal Council v. Kishan Singh

Case brief

What is this about?

What did the court decide?

Municipal Council v. Kishan Singh

Case brief

What is this about?

What did the court decide?

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