In a second appeal, the High Court dismissed the plea that the Civil Court lacked jurisdiction under the Rajasthan Gramdan Act, 1971. The Court held the suit was maintainable and the section's bar did not apply as the Gram Sabha consent was obtained and the transferee was a community member.
The second appeal, stay petition, and pending applications were dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Second Appeal No. 274/2022
----Appellants
Versus
----Respondents
For Appellant(s) : Mr. Sunil Joshi Mr. S.P. Joshi
HON'BLE MS. JUSTICE REKHA BORANA
Judgment
19/09/2023
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the suit as preferred by the plaintiffs for declaration of the sale deed to be void and for declaratory and permanent injunction on merits as well as on the ground of same being barred by limitation.
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Procedure, 1908 (CPC) was filed by the defendant with an averment firstly that the dispute pertains to an agricultural land and hence the Civil Court would have no jurisdiction to entertain the suit and secondly that the dispute was governed by the Act of 1971 and Section 46 of the said Act provides that neither the Civil Court nor the Revenue Court has jurisdiction to entertain the dispute.
The application under Order VII Rule 11, CPC was rejected by the learned trial Court vide order dated 16.11.2017.
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Learned counsel submitted that even if the ground of the Court lacking jurisdiction was not raised before the Courts below, the same can very well be raised before this Court as the same goes to the root of jurisdiction. Learned counsel further submitted that the question whether the Civil Court has the jurisdiction to try/entertain the matters pertaining to the Act of 1971 does arise in the present appeal and therefore, the said question being a substantial question of law, be framed for adjudication and the appeal be admitted.
In support of his submissions, learned counsel relied upon the following judgments:
(i) Kiran Singh and Ors. vs. Chaman Paswan and Ors.; AIR 1954 SC 340
(ii) Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rehman & Ors.; (1970) 1 SCC 670 (iii) Sunder Dass vs. Ram Prakash; (1977) 2 SCC 662 (iv) Pyarelal vs. Shubhendra Pilani & Ors.; (2019) 3 SCC 692
(v) Sua Lal & Ors vs State of Rajasthan & Ors; SB CWP NO. 698/2015 (Rajasthan High Court) decided on 02.03.2016
(vi) Gangabisan Mayaramji Paliwal vs Sindi Vividha Karyakari Sahakari Society Ltd. Sindi; Second Appeal No.447/1998 (Bombay High Court) decided on 28.07.2014
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(vii) Chandra Prem Shah and Ors. vs. K. Raheja Universal
Pvt. Ltd. & Ors.; 2015 (5) ABR 821.
After the suit of the plaintiffs and the first appeal thereof having been dismissed, a ground has now been raised in the present second appeal by counsel for the appellants - plaintiffs that the Civil Court did not have the jurisdiction to entertain the present suit in terms of the Act of 1971. Meaning thereby, the plaintiffs, who had specifically averred the suit to be maintainable before a Civil Court, have now taken a U-turn and averred that the decrees in question are void, the same having been passed by the Civil Court which lacks inherent jurisdiction to entertain the present suit.
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that a decree passed by a Court without jurisdiction is nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings ( Kiran Singh and Ors. Vs. Chaman Paswan and Ors., AIR 1954 SC 340) .
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not maintainable before the Civil Court which was objected to by the plaintiffs and now the plaintiffs, after having lost before both the Courts, have raised a plea that the Civil Court did not have jurisdiction to entertain the suit in question. This Court is of the clear opinion that firstly , the suit in question did not fall within the preview of Section 46 of the Act of 1971 and secondly , the ground as raised by counsel for the appellants cannot be held to be tenable because of following reasons :
(i) The ground was raised by the defendant at the inception of the suit itself vide an application under Order 7 Rule 11, CPC which was opposed by the plaintiffs and the same was decided against the defendant. The Court below held the suit to be maintainable before a Civil Court. The said order dated 16.11.2017 was never challenged by the plaintiffs, rather was supported. As held in Kiran Singh’s case (supra) the plaintiffs who resorted to a forum of their own choice cannot now be heard to complain of any prejudice. The impugned judgment and decree in question is a result of the suit instituted by the plaintiffs themselves before a Civil Court and now they cannot be permitted to pray that the said judgment and decree is void. The plaintiffs cannot be held to be prejudiced in any manner so far as the issue of jurisdiction is concerned, as the same was due to their own action and as held by the Hon’ble Apex Court, the Courts cannot recognise a prejudice which flows from the action of the very party who complains about it.
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(ii) Coming on to the question whether the suit in question even fall within the preview of Section 46 of the Act of 1971. Section 46 reads as under :
“ 46. Bar of jurisdiction. - (1) Save as otherwise provided in this Act, no civil or revenue court shall have jurisdiction in respect of any matter which is required to be settled, decided or dealt with by any officer or authority under this Act.
A bare perusal of above provision makes it clear that the jurisdiction of civil or revenue Court is barred in matters which have been required to be settled by any officer or authority under this Act. Firstly, no power or authority to cancel any sale deed registered by the Gram Sabha itself has been given to Gram Sabha under the Act of 1971. Secondly, even if the said power is assumed to be incorporated by virtue of Section 28 of the Act of 1971, the same also provides only for cacellation of an allotment if it is in contravention to the provision of clause (b) of Section 27 of the Act of 1971. Clause (b) of Section 27 of the Act of 1971 provides as under :
“(b) The Gramdan Kishan shall not transfer his interest in the land, without the previous approval in writing of the Gram Sabha and except -
(i) to a person who has joined the Gramdan Community in respect of the village in which the land is situate on the terms and conditions agreed upon between them.”
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Meaning thereby, the only two eventualities when an allotment can be cancelled by the Gram Sabha are firstly, when it has been transferred without the previous approval of the Gram Sabha and secondly, if it has been transferred to a person who is not a member of Gram Sabha Community.
As is evident on record, it is the case of the plaintiffs that the sale deed was executed and registered fraudulently in connivance with the President/Chairman of the Gram Sabha. Meaning thereby, the sale deed in question was registered by the Gram Sabha, that is, the transfer of the land was with consent of the Gram Sabha. It is also evident on record that the land was transferred to brother of the seller who admittedly, is the member of the Gram Sabha Community. It is nowhere the case of the plaintiffs that the purchaser (defendant no.1) was not the member of Gramdhan Community. It was rather the contention of defendant no.1 that the plaintiffs were not the residents of Gramdhan Community as they were residents of Abu Road. The fact that the plaintiffs are the residents of Abu Road and the defendant is the resident of Gram Dhan Village is crystal clear from the cause title of the present appeal itself which reflects the appellants to be the residents of Abu Road and respondent No.1 to be resident of Village Anadra.
(iii) Further, even if it is assumed that the Gram Sabha, in terms of Act of 1971, had the power/authority to cancel the document in question, it is nowhere the case of the plaintiffs that any such application was even moved before the Gram Sabha or any such prayer for cancellation of the sale deed in question was made to
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Gram Sabha and the same was refused/rejected. The plaintiffs, who did not even choose to avail the remedy, if any, before the Gram Sabha and preferred a suit directly before the Civil Court without availing the said remedy, cannot now be held entitled to plead that the Civil Court did not have the jurisdiction to entertain the suit.
(iv) Therefore, even on merits, it is clear that firstly, the transfer of the land was not in contravention of any provision of Gram Dhan Act; secondly, no application for cancellation of any allotment was ever moved by the plaintiffs before the Gram Sabha; thirdly, the transfer being not in contravention of Section 27 of the Act, could not have been cancelled by the Gram Sabha by virtue of Section 28 and fourthly, the relief of cancellation of sale deed as prayed for in the present suit does not fall within the domain of Act of 1971 and hence the bar as provided under Section 46 would not govern the present dispute.
(REKHA BORANA),J
Vij/-
3 issues framed by the court
Whether the Civil Court lacked jurisdiction under Section 46 of the Rajasthan Gramdan Act, 1971 to entertain a suit for declaring a sale deed void.
Whether appellants can raise a substantial question of law for the first time in second appeal regarding the Court's inherent lack of jurisdiction despite earlier opposing the objection.
Whether the bar of Section 46 of the Rajasthan Gramdan Act, 1971 applies when the Gram Sabha consent was obtained and the transfer was to a Gram Sabha member.
Colour shows how this judgement treated each authority
Kiran Singh and Ors. vs. Chaman Paswan and Ors.Followed¶52
Kiran Singh and Ors. vs. Chaman Paswan and Ors.; AIR 1954 SC 340 · Who else cites this
Sua Lal & Ors vs State of Rajasthan & OrsReferred¶38
Sua Lal & Ors vs State of Rajasthan & Ors; SB CWP NO. 698/2015 (Rajasthan High Court)
Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rehman & Ors.Referred¶37
Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rehman & Ors.; (1970) 1 SCC 670 · Who else cites this
Sunder Dass vs. Ram PrakashReferred¶37
Sunder Dass vs. Ram Prakash; (1977) 2 SCC 662 · Who else cites this
Pyarelal vs. Shubhendra Pilani & Ors.Referred¶37
Pyarelal vs. Shubhendra Pilani & Ors.; (2019) 3 SCC 692 · Who else cites this
Gangabisan Mayaramji Paliwal vs Sindi Vividha Karyakari Sahakari Society Ltd.Referred¶39
Gangabisan Mayaramji Paliwal vs Sindi Vividha Karyakari Sahakari Society Ltd. Sindi; Second Appeal No.447/1998 (Bombay High Court)
Chandra Prem Shah and Ors. vs. K. Raheja Universal Pvt. Ltd. & Ors.Referred¶43
Chandra Prem Shah and Ors. vs. K. Raheja Universal Pvt. Ltd. & Ors.; 2015 (5) ABR 821.
2 provisions across 2 enactments
Baabu Bhai and Ors.
Chand Khan and Ors.
Rekha Borana
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
