Allowed

Dhanna v. Hassanpura a Grih Nirman Sahkari Samiti Ltd.

Rajasthan HC11 Mar 2025CR/166/2023

Case brief

AI extract

What is this about?

A housing society sought specific performance of agreements to sell agricultural land owned by Scheduled Caste members. The High Court held the sale violated Section 42 of the Rajasthan Tenancy Act, 1955 since a society is not a Scheduled Caste member, allowed the revision petition, set aside the trial court's order and rejected the suit under Order VII Rule 11 CPC.

What did the court decide?

Impugned order dated 27.07.2023 set aside; application under Order VII Rule 11/151 CPC allowed; plaintiff's civil suit rejected.

Dhanna Vs Hassanpura a Grih Nirman Sahkari Samiti Ltd. — Specific Performance | Rajasthan HC (2025)

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[2025:RJ-JP:15174]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Revision Petition No. 166/2023

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Dhanna

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Gopal S/o Bhuria

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Ramkaran S/o Ghasi @ Ghisya

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Dulichand S/o Ghasi @ Ghisya

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Kaluram S/o Cheetar

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Dhokal S/o Sunda

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Keshar Widow Of Sheoram

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All resident Of Gram Vatika, Tehsil Sanganer, District Jaipur.

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----Petitioners/Defendants

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Versus

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Hassanpura A Grih Nirman Sahkari Samiti Ltd., Through Its Convener Uttam Chand Jain S/o Late Sh. Rajmal Jain Office At A-1, Gehlot Market, Near Ajmer Pulia, Hathroj, Ajmer Road, Jaipur.

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---Plaintiff/Respondent

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Bhonrilal S/o Sheoram, R/o Village Vatika Tehsil Sanganer, District Jaipur.

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----Respondent

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For Petitioner(s) : Mr. Jitendra Sharma For Respondent(s) : None present

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Order

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11/03/2025

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The instant revision petition is preferred by petitionersdefendants aggrieved from order dated 27.07.2023 in Civil Suit No.145/2014 passed by learned Additional District Judge No.10, Jaipur Metropolitan-I, HQ Sanganer, whereby an application under

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Order VII Rule 11 read with Section 151 of CPC filed by present petitioners was dismissed.

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Despite service of notice to respondent No.1-plaintiff, no one has appeared on behalf of respondent No.1-plaintiff.

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Learned counsel for the petitioners while referring Section 42 of the Rajasthan Tenancy Act, 1955 (for short ‘the Act of 1955’) submits that the petitioners herein are members of Scheduled Castes and plaintiff is a Housing Co-operative Society. He also submits that the plaintiff has filed a suit for specific performance of an agreement to sell allegedly executed on 10.04.1997 relating to agriculture land and now plaintiff has filed a suit in year 2014 for specific performance of agreement to sell dated 10.11.1997. He further submitted that Section 42 of the Act of 1955 provides that a land in name of SC/ST Community cannot be transferred to a non SC/ST. He further referred the judgment in case of Rajasthan Housing Board Vs. New Pink City Nirman Sahkari

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Samiti Ltd. & Anr. : AIR 2015 SC 2126 and submitted that and even a society cannot entered into an agreement to sell in violation of provision of Section 42 of the Act of 1955. He further submits that a suit for specific performance filed by respondent No.1-plaintiff is not maintainable, and barred by law.

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None present for the respondent No.1-plaintiff.

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Heard learned counsel for the petitioners and perused the material placed on record.

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Respondent No.1-plaintiff has filed a civil suit for specific performance and permanent injunction against eight defendants including present petitioners for specific performance of an

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agreement to sell dated 10.04.1997 in relation to agriculture land Khasra Nos. 1909, 1910, 1913, 1914, 1915, 1916, 1917, 1918, 1919, 1920, 1921, 1922, 1923, 1924, 1925, 1926, 1927, 1928, 1930, 1931, 1932, 1933, 1937, 1944 and 1945 total rakba 10.48 hectares. As per petitioners, the land is still recorded as an agriculture land and the plaintiff has prayed for mandatory injunction to get the conversion of land category.

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The petitioners have filed an application under Order VII Rule 11 of CPC raising an objection under Section 42 of the Act of 1955 that there is a restriction on sell, gift and bequeath of property held by any member of SC/ST. The trial Court has dismissed the application, hence, this revision petition is preferred.

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Herein, respondent No.1-plaintiff, a Housing Society has filed a suit for specific performance and permanent injunction. A copy of agreement dated 10.04.1997 is also placed on record which indicates that the petitioners herein belong to “Bairwa Caste” and admittedly same is within category of Scheduled Caste. The agreements dated 10.04.1997 and 11.08.1997 were executed by the persons who belong to Scheduled Caste, for sale of agriculture land. The beneficiary under the agreement is a Housing Society, which filed a civil suit before learned trial court.

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Section 42 of the Act of 1955 is extracted as under:-

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“ 42. General restrictions on sale, gift and bequest

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— The sale, gift or bequest by a Khatedar tenants of his interest in the whole or part of his holding shall be void, if —

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(a) Omitted.

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(b) such sale, gift or bequest is by a number of Scheduled Caste in

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favour of a person who is not a member of the Scheduled Caste, or by a member of a Scheduled Tribe in favour of a person who in not a member of the Scheduled Tribe.

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[(bb) such sale, gift or bequest, notwithstanding anything contained in clause (b), is by a member of Saharia Scheduled Tribe in favour of a person who is not a member of the said Saharia tribe.]

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42A. Omitted.

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42B. Declaration as valid of sale, gift and bequest

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— Where any sale, gift or holding before the commencement of the Rajasthan Tenancy (Second Amendment) Act, 1992 Act No. 22 of 1992 was void on account of contravention of any of the provisions of clause (a) of section 42, as it stood before the said amendment Act of 1992, such sale, gift or bequest may be declared to be valid by the Collector or any officer or authority empowered by the State Government in this behalf on an application made to him or it within such time and in such manner and on payment of such fee and penalty as may be prescribed:

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Provided that-

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(a) - such sale, sift or bequest was otherwise legally valid and in conformity with the provisions of the laws for the time being in force except those contained in clause (a) of section 42 as aforesaid:

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(b) the parties to the sale, or bequest comply with all the terms and conditions as may be prescribed by the rules or by any special or general order:

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(d) the applicant undertakes to pay urban assessment levied at such rate and in accordance with such manner as may be prescribed.”

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The plaintiff is a Society and a Society is a juristic person but

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a Society is neither a member of Scheduled Castes nor declared as such by the Government of Rajasthan.

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This issue was considered by Hon’ble Supreme Court in case

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of Rajasthan Housing Board Vs. New Pink City Nirman Sahkari Samiti Ltd. & Anr.: (2015) 5 SCR 365 and it was held

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that a sale in favour of society on ground that society is a juristic person by the khatedars belong to Scheduled Caste being not permissible under Section 42 of the Act of 1955 and is void ab initio. A decree on basis of such agreements is provision under mandate of Section 42 of the Act of 1955, thus, same is a nullity. 12. Order VII Rule 11 CPC outlines the grounds on which a plaint can be rejected, if it appears to be barred by law. The Rule empowers the Court to summarily dismiss a suit at the threshold without proceeding to a full trial.

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In case of Azhar Hussain Vs. Rajiv Gandhi : 1986 SCC (supp) 315 , Hon’ble Supreme Court has held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to waste the judicial time of the Court.

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In case of Sopan Sukhdeo Sable & Ors vs Assistant Charity Commissioner & Ors : 2004(3) SCC 137, it was held that this provision is a tool in the hands of the Courts by resorting to which and by searching examination of the party in case the Court is prima facie of the view that the suit is an abuse of the process of the Court, then the Court can exercise jurisdiction under Order 7 Rule 11 CPC.

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In case of Dahiben vs Arvindbhai Kalyanji Bhanusali (Gajra)(D) Thr LRs & Ors. : (2020) SCC OnLine SC 563 , it was held that in case a suit filed by plaintiff is barred by law then the Court would not permit him to unnecessarily protract the proceedings in the suit. It is necessary to put an end to the sham litigation.

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It is a settled proposition of law that while considering the application under Order VII Rule 11 CPC, a Court can only look into the averment made in the plaint and also the documents submitted or relied in support of plaint but it cannot look into any defence. A Court cannot go into disputed question of fact.

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Herein, on a perusal of plaint and also the documents submitted with plaint (agreement to sell) dated 10.04.1997 and 11.08.1997, it is apparent that the agreement to sell is violative of Section 42 of the Act of 1955 and same is not enforceable under the law. The legal issue is already settled that the provision of Section 42 of the Act of 1955 also applies upon a juristic person like present plaintiff (a society).

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The trial Court has not only ignored the legal position but it has overlooked the judgment of Hon’ble Supreme Court wherein the issue was specifically answered with reference to a Society. Thus, the impugned order is liable to be set aside and an application is deserved to be allowed.

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In view of discussion made hereinabove, the revision petition is hereby allowed and impugned order dated 27.07.2023 in Civil Suit No.145/2014 (CIS No.492/2020) is hereby set aside. As a result, an application under Order VII Rule 11 CPC read with Section 151 of CPC is hereby allowed and civil suit preferred by the respondent No.1-plaintiff is hereby rejected.

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Misc. application(s), if any, stand disposed of.

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No order as to costs.

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(ASHOK KUMAR JAIN),J

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MR/7

Dhanna v. Hassanpura a Grih Nirman Sahkari Samiti Ltd.

Case brief

What is this about?

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Dhanna v. Hassanpura a Grih Nirman Sahkari Samiti Ltd.

Case brief

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