Mohan Lal Son of Shri Pemaram Vs Yogesh Kumar Son of Shri Gordhan

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

S.B. Civil Revision Petition No. 188/2022

Mohan Lal Son Of Shri Pemaram, Aged About 55 Years, Resident Of Banathala, Tehsil Dantaramgarh, District Sikar (Rajasthan).

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----Petitioner/ Defendant no.4

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Versus

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Yogesh Kumar Son Of Shri Gordhan, Aged About 10 Years, Minor Through His Guardian Mother Manju Devi Wife Of Gordhan, Resident Of Khatushyamji Tehsil Dantaramgarh, District Sikar (Rajasthan).

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Sushil Kumar Son Of Shri Gordhan, Aged About 2 Years, Minor Through His Guardian Mother Manju Devi Wife Of Gordhan, Resident Of Khatushyamji Tehsil Dantaramgarh, District Sikar (Rajasthan).

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Khushi Daughter Of Shri Shri Gordhan, Aged About 9 Years, Minor Through Her Guardian Mother Manju Devi Wife Of Gordhan, Resident Of Khatushyamji Tehsil Dantaramgarh, District Sikar (Rajasthan).

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--- Respondents/Plaintiff

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1. Gordhan Son Of Shri Ramlal, Aged About 41 Years, Resident Of Khatushyamji Tehsil Dantaramgarh, District Sikar (Rajasthan).

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Devilal Son Of Shri Ramlal, Aged About 28 Years, Resident Of Khatushyamji Tehsil Dantaramgarh, District Sikar (Rajasthan).

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Chhoti Devi Wife Of Shri Ramlal, Aged About 60 Years, Resident Of Khatushyamji Tehsil Dantaramgarh, District Sikar (Rajasthan).

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Sub-Registrar, Dantaramgarh, Tehsil- Dantaramgarh, District Sikar.

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Tehsildar, Dantaramgarh, Tehsil Dantaramgarh, District Sikar.

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State Of Rajasthan, Through District Collector Sikar. ----Respondents/ Defendant nos. 1 to 3 & 5 to 7

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For Petitioner(s) : Mr. Amit Singh Shekhawat

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For Respondent(s) :

HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Order

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02/04/2025

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Instant revision petition is preferred by petitioner defendant no.4 aggrieved from dismissal of application under Order VII Rule 11 CPC read with Section 151 CPC on 30.07.2022 in civil suit no. 58/2022 passed by learned Senior Civil Judge, Dantaramgarh, Sikar.

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Learned counsel for petitioner while relying upon judgment of Hon’ble Supreme Court in case of Pyare Lal Vs. Shubhendra Pilania (Minor) through Natural Guardian (Father) & Ors. reported in 2019 (3) SCC 692 submitted that respondent nos. 1 to 3 who are minor children of defendant no.1 Gordhan have filed a civil suit for cancellation of agreement to sale dated 14.12.2021 and permanent injunction before the civil court for agricultural land mentioned in Para no.1 of plaint. Learned counsel further submitted that defendant no.1 is khatedar tenant on agricultural land whereas the plaintiffs respondents no.1 to 3 have no right of tenancy in their favour, and unless plaintiffs respondent(s) declare their right of tenancy they have no right to file a civil suit to challenge agreement to sale entered by khatedar tenant of agriculture land. He further submitted that Section 207 of Rajasthan Tenancy Act bars the filing of civil suit before the civil court and the trial court without considering the provision of law, has dismissed the application.

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None present on behalf of respondents (plaintiffs) despite service of notice.

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Heard learned counsel for petitioner and perused the material placed on record. 5. The brief facts giving rise to instant revision petition are that respondent nos. 1 to 3 (minor plaintiffs) through guardian have filed a civil suit for cancellation of agreement to sale dated 14.12.2021 and permanent injunction against defendant no.1 Gordhan (father), Devi lal (uncle), Choti Devi (grandmother) and Mohanlal (purchaser through agreement to sale and present petitioner). The defendant no. 4 (petitioner) has filed an application under Order VII Rule 11 CPC on the ground that the defendant nos. 1 to 3 are recorded khatedar of suit property and they have absolute right to transfer their own property and the plaintiffs who are not recorded khatedar have no right to file a civil suit against recorded khatedar without seeking declaration of khatedari rights.

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The application was dismissed by learned trial court observing that the trial court is required to peruse the plaint and documents filed with the plaint. Order VII Rule 11 CPC deals with the grounds for rejection of plaint aiming to prevent frivolous or defective suits. The provision enables the Court to reject a plaint, if certain conditions are satisfied. The provision of Order VII Rule 11 CPC is reproduced as under:

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Rejection of plaint— The plaint shall be rejected in

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the following cases:—

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(a) where it does not disclose a cause of action;

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(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to

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correct the valuation within a time to be fixed by the Court, fails to do so;

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(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

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(d) where the suit appears from the statement in the plaint to be barred by any law :

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(e) where it is not filed in duplicate;

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(f) where the plaintiff fails to comply with the provision of rule 9:

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Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature form correcting the valuation or supplying the requisite stamppaper , as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.”

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In case of T. Arivandandam vs. T.V. Satyapal, (1977) 4 SCC (1) 467 , Hon’ble Supreme Court while examining the aforesaid provision has held that the trial court must remember that if on a meaningful and not a formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order VII Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party under Order X of the Code.

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The object of the said provision is further considered by Hon’ble Supreme Court in case of Sopan Sukhdeo Sable vs. Assistant Charity Commissioner, (2004) 3 SCC 137, and in Popat and Kotecha Property vs. State Bank of India Staff Association, (2005) 7 SCC 510, and held that no court shall

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permit the plaintiff to unnecessarily protract the proceedings in the suit in case the suit does not disclose the cause of action of bar any law or law of limitation.

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In case of Saleem Bhai vs. State of Maharashtra, (2003)

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1 SCC 557 that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power at any stage of the suit i.e. before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order VII Rule 11 of the Code, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.

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Hon’ble Supreme Court in case of Dahibhen Vs. Arvindbhai Kalyanji Bhanusali through LRs and Ors. 2020

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SCC Online (SC) 562 while dealing with an appeal against an order allowing rejection of a suit at the threshold, had occasion to consider various precedents to discuss the intent under Order VII Rule 11 of CPC. Hon’ble Supreme Court observed that if no cause of action is disclosed in the plaint, or if the suit is barred by limitation, court would not permit protraction of the proceedings and it would be necessary to put an end to the shame litigation so that further judicial time is not wasted.

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After placing reliance upon Azhar Hussain Vs. Rajiv Gandhi 1986 SCC (SUPP) 315 opined that the entire purpose of conferment of such power is to ensure that a litigation, which is meaningless and bond to prove abortive should not be permitted

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to occupy the time and space of the Courts. The power on the Court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII, Rule 11 CPC are required to be strictly adhered to.

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Hon’ble Supreme Court while dealing with such an application seeking rejection of a plaint clarified that while determining any application filed under Order VII Rule 11 CPC, the court should restrict itself to the plaint and should not go into the detail facts as provided under the written statement or even in the application filed for rejection of plaint. While scrutinizing the averments in the plaint, the Court can read documents annexed and relied upon in the plaint.

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Order VII Rule 11(d) of CPC provides that a plaint should be rejected if the suit is barred by any law. Hon’ble Supreme Court in case of Ramisetty Venkatanna Vs. Nasyam Jamal Saheb 2023 INSC 458 has observed that plaint should be rejected under Order VII Rule 11 (a)(d) of CPC if it is vexatious, illusory cause of action and barred by law.

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In case of Pyare Lal Vs. Shubhendra Pilania (Minor) (supra), Hon’ble Supreme Court has considered the provision of Order VII Rule 11 CPC with reference to a suit related to agriculture land filed before the civil court. After considering the provision of 207 read with Section 256 of Rajasthan Tenancy Act and also Section 5 of Limitation Act, Hon’ble Supreme Court has held that the revenue court has exclusive jurisdiction to declare khatedari right and plaintiff has no right to seek relief from the

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civil court without first getting his khatedari rights declared by the revenue court.

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While considering the provision of law, it has observed that a recorded khatedar stands on a different footing compared to claimant seeking a decree of their khatedari rights. A claimant seeking a decree of khaterdari right is barred from filing a suit in civil court prior to their khatedari right being declared by a revenue court when relief sought from the civil court includes the determination of khatedari right.

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Herein this case, a perusal of plaint indicate that khasra no. 810, 811, 812, 813, 814 total 5 with total Rakba 2.1700 hectate situated in Gram Khatu Shyam Ji, Tehsil Dantaramgarh, District Sikar is in khatedari (tenancy) of defendant nos. 1 to 3. Admittedly, the defendant no.1 is father of plaintiff, and he is still alive. The plaintiffs have claimed 1/28th share each in the land as mentioned in para no.1 of the plaint. The meaning of statement of plaintiff clearly reflects that the plaintiffs are neither recorded tenant nor claimed their exclusive possession on the land. There is no document to establish an Undivided Hindu Family or a Joint Family with defendant nos. 1 to 3.

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In case of Jitendra Singh Vs. State of M.P. 2021 SCC Online SC 802 Hon’ble Supreme Court has observed that mutation entry does not confer any right, title or interest in favour of a person, as mutation entry in the revenue record is only for the fiscal purpose. If there is no dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of any right, the party who is claiming title/

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right has to approach the appropriate civil court and get his right crystalized and only thereafter necessary mutation entry can be made. In case of Balwant Singh & Anr Vs. Daulat Singh (Dead) & Ors. (1997) 7 SCC 137 Hon’ble Supreme Court has considered the effect of mutation and observed that the mutation of property in revenue record neither creates nor extinguishes title to the property nor has any presumptive value on the title. Such entries are relevant only for the purpose of collecting land revenue.

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In case of Suraj Bhan & Ors. Vs. Financial Commissioner & Ors. (2007) 6 SCC 186 Hon’ble Supreme Court observed that an entry in revenue record does not confer title on a person whose name appears in record of rights. The entries in the revenue record or Jamabandi is only for fiscal purpose and same cannot be treated as document of title.

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Herein this case, the plaintiffs who are minor children of defendant no.1 have filed a civil suit during life time of their father, and the mutation entries (land record) is not in the name of plaintiffs. The plaintiffs have no independent right in the agricultural land as mentioned in para no.1 of plaint.

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The plaintiffs have claimed that the land mentioned in Para no.1 is ancestral land and after death of grandfather of plaintiffs same is mutated in the name of defendant no.1 to 3. The Hindu Succession Act provides for general rule of succession in case of inheritance. Section 8 provides for distribution of property among heirs in Class -1 of Schedule whereas Section 6 describes general rule of succession in case of males. A joint reading of aforesaid

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provision makes it clear that so long as defendant no.1 is alive plaintiffs have no right claim any share in the property.

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Having considered above provision of law, it is apparent on record that the plaintiffs are neither tenant nor holder of said agricultural land. The revenue record is also in the name of defendant nos. 1 to 3, who entered into an agreement to sale with defendant no.4. The rights of plaintiff has not been crystalized so as to give them a right or cause of action to file a civil suit to challenge action of his father, uncle and grandmother.

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The plaintiffs have not filed any suit of declaration of their khatedari right in the instant case and looking to the fact that father of plaintiffs is alive, a suit of plaintiffs is not maintainable unless they seek declaration of tenancy right from a competent court (revenue court). Though, plaintiffs have not filed a revenue suit for declaration of khatedari right and also not seeking a declaration from the civil court but the suit in question is not maintainable in view of discussion made hereinabove and same is liable to be dismissed under Order VII Rule 11 (d) of CPC. The trial court has committed serious error while dismissing the application under Order VII Rule 11 of CPC.

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In view of discussion made hereinabove, the revision petition is hereby allowed and the impugned order dated 30.07.2022 is hereby set aside.

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As a result, the application under Order VII Rule 11 read with Section 151 CPC is allowed and the suit (plaint) preferred by respondent nos. 1 to 3 (plaintiffs) is hereby rejected.

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