MANU/RH/1474/2023

Equivalent/Neutral Citation: 2023:RJJP:23412

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

S.B. Civil Revision Petition Nos. 87/2022 and 112/2022
Decided On: 15.09.2023
Shyam Sunder Agarwal and Ors. Vs. Kushalkanwar and Ors.
and
Laxmi Devi and Ors. Vs. Kushalkanwar and Ors.
Hon'ble Judges/Coram:
Mahendra Kumar Goyal, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Prem Shanker Sharma, G.L. Gour and Surendra
Sharma
For Respondents/Defendant: Bipin Gupta, Jag Mohan Saxena and Dharmendra Pareek
DECISION
Mahendra Kumar Goyal, J.
S.B. Civil Revision Petition No. 87/2022:
1 . This revision petition is directed against the order dated 22.03.2022 passed by the
learned Additional District Judge, Sawaimadhopur (for brevity, "the learned trial Court")
in Civil Suit No. 13/2019 whereby, an application filed by the petitioners/defendants
no.1 to 3 (for brevity "the defendants no.1 to 3") under Order 7 Rule 11 CPC has been
dismissed.
2 . The relevant facts in brief are that the respondent no.1/plaintiff (for brevity, "the
plaintiff") filed a suit for declaration and permanent injunction stating therein that after
death of her father Onkar Singh, a part of subject agricultural land as described in Para
no.1 of the plaint situated in Village Jatwada Khurd, Sawaimadhopur, was mutated in
her favour vide mutation no.472 dated 30.08.2010. It is averred that under undue
pressure exerted by her sister-in-law on her mother, she executed a release deed dated
20.10.2010 of her share in the subject land in favour of her mother Smt. Munni Devi
seeking cancellation whereof, she has filed a Civil Suit No. 112/2018 in the Court of
Civil Judge, Sawaimadhopur as also a revenue suit in the Court of Sub-Divisional
Officer, Sawaimadhopur and an appeal against the mutation entry in the Court of
District Collector. It was stated that after death of her mother, she came to know that
the entire land has been got mutated by her sister-in-law in her favour on the basis of a
forged and fabricated release deed dated 29.10.2010 allegedly executed by her mother.
It is averred that for cancellation of this release deed also, a prayer has been made in
the Civil Suit No. 112/2018 and in the revenue suit filed in the Court of Sub-Divisional
Officer, Sawaimadhopur. It was alleged that the defendant no.4/respondent no.4 has
executed a sale deed dated 25.07.2014 of a part of subject agricultural land in favour of
the defendants no.1 to 3, which was a sham sale deed without delivery of its possession
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to the purchaser. Seeking a decree of declaration that the sale deed dated 25.07.2014
was null and void against her rights with a further prayer for the decree of permanent
injunction, the suit has been filed. Therein, the defendants no.1 to 3 filed an application
under Order 7 Rule 11 CPC raising objection as to its maintainability in view of Section
207 of the Rajasthan Tenancy Act, 1955 (for brevity, "the Act of 1955"). The application
has been dismissed by the learned trial Court vide order dated 22.03.2022, impugned
herein.
3 . Assailing the order, learned counsel for the defendants no. 1 to 3 submits that the
learned trial Court did not appreciate that the suit filed by the plaintiff for declaration
and permanent injunction was not maintainable in view of provisions of Section 207 of
the Act of 1955. He submits that although, it is claimed in the plaint that she was co-
khatedar of the subject agricultural land; but, indisputably, it was not recorded in her
khatedari after execution of the release deed dated 30.08.2010 by her of her share in
the subject agricultural land in favour of Smt. Munni Devi based whereupon, mutation
was recorded in the name of her mother. He, therefore, prays that the civil revision
petition be allowed and the order dated 22.03.2022 be quashed and set aside and the
plaint be rejected. He, in support of his submissions, relies upon the judgment of the
Hon'ble Apex Court of India in case of Pyarelal Vs. Shubhendra Pilania (Minor) Through
Natural Guardian (Father) Shri Pradeep Kumar Pilania & Ors.: MANU/SC/0108/2019 :
(2019) 3 SCC 692.
4 . Per contra, learned counsel for the plaintiff would submit that since, she is the
recorded khatedar of the subject agricultural land, the suit filed by her for declaration
and permanent injunction is maintainable. He submits that the judgment in case of
Pyarelal (supra) is inapplicable in the present case inasmuch as therein, the plaintiff
was not recorded as khatedar of the agricultural land. He further submits that during
pendency of the suit, her appeal against mutation entry has been allowed and her name
has been mutated in the Jamabandi. Referring to the provisions of Section 207 of the
Act of 1955 and the III Schedule, he would submit that since, the suit seeking a decree
of declaration with regard to a registered deed being null and void, does not find
mention therein, the suit is maintainable. He, therefore, prays for dismissal of the
revision petition.
5. In rejoinder, learned counsel for the defendants no.1 to 3 submits that order of the
District Collector cancelling the mutation has been stayed by the Board of Revenue,
Ajmer (for brevity, "BoR") vide order dated 08.07.2021 in the revision petition preferred
by them against the order of the District Collector.
6. Heard. Considered.
7. The learned trial Court has dismissed the application filed by the defendants no.1 to
3 on the premise that the plaintiff has stated in Para no.2 of the plaint that she has
already filed a civil suit seeking cancellation of the release deed dated 20.10.2010 and
she has not sought any declaration of her khatedari rights in the subject land in any of
the suits. It has further been observed by the learned trial Court that since, in the
written statements filed by the defendants, all the objections as raised in the application
under Order 7 Rule 11 CPC, have already been taken, the same would be decided after
framing the issue. However, this Court is not inclined to concur with reasonings
assigned by the learned trial Court.
8. Although, in Para no.6 of the plaint, it is claimed that the plaintiff is khatedar of the
subject land which is not partitioned till date; but, it is also stated in the plaint that she

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had executed a release deed dated 30.08.2010 of her share in the agricultural land in
favour of her mother Smt. Munni Devi who, in turn had executed a release deed dated
29.10.2010 in favour of her sister-in-law Smt. Vimlesh. It has further been averred that
seeking cancellation of the release deed dated 30.08.2010 executed by her and the
forged and fabricated release deed dated 29.10.2010 allegedly executed by her mother,
she has already filed a civil suit as also a revenue suit and an appeal against the
mutation entry based upon such release deed(s). It is trite law that while adjudicating
upon maintainability of a suit, its contents should not be read in isolation or out of
context; but, harmoniously and its nature/maintainability has to be assessed on its
meaningful reading. If the instant plaint is examined on the aforesaid touchstone, it is
revealed that on the day it was presented, the plaintiff was not the recorded khatedar of
the land; rather, on the strength of a release deed executed by her of her entire share in
the subject agricultural land in favour of her mother, she was divested of her right in
the subject agricultural land. The question whether in absence of her khatedari rights in
the subject land, the suit for declaration and permanent injunction is maintainable or
not, finds answer in case of Pyarelal (supra), wherein, the Hon'ble Supreme Court of
India, taking into consideration the provisions of the Act of 1955, held as under:
"22. The appellant has prayed that the gift deed dated 10 February, 2011 be
declared void to the extent of the share claimed by the appellant and that
respondent Nos. 1 to 5 be restrained from alienating the share of the appellant.
The civil court may decree the relief prayed only if it is first determined that the
appellant is entitled to khatedari rights in the suit property. Under the
provisions of the Tenancy Act, the jurisdiction to declare khatedari rights vests
exclusively with the revenue courts. Only after such determination may the civil
court proceed to decree the relief as prayed. The explanation to Section 207
clarifies that if the cause of action in respect of which relief is sought can be
granted only by the revenue court, then it is immaterial that the relief asked
from the civil court is greater than, or in addition to or not identical with the
relief which the revenue court would have granted. In view of this matter, the
civil court may not grant relief until the khatedari rights of the appellant have
been decreed by a revenue court.
23. A claimant whose khatedari rights have been decreed by a revenue court is
however on a different footing from a claimant whose khatedari rights are
pending adjudication by a revenue court. Where the khatedari rights are yet to
be decreed, a claimant must first approach the revenue courts. The relief to
declare the gift deed void and to restrain respondents Nos. 1 to 5 from
interfering with or alienating the property vesting in a civil court may be sought
for in a suit by a claimant in whom khatedari rights have been decreed by a
revenue court.
24. In Ram Vs. Addl. District Judge MANU/SC/0102/2001 : (2001) 3 SCC 24, a
suit was filed before the civil court for the cancellation of a sale deed of an
agricultural land on the grounds of fraud and impersonation. The defendant
contended that the suit is barred by Section 331 of the Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 which reads thus:
"331. Cognizance of suits etc. under this Act.-(1) Except as provided by
or under this Act, no Court other than a Court mentioned in Column 4
of Schedule II shall, notwithstanding anything contained in the Civil
Procedure Code, 1908 (V of 1908), take cognizance of any suit,
application, or proceedings mentioned in Column 3 thereof or of a suit,
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 application or proceedings based on a cause of action in respect of
which any relief could be obtained by means of any such suit or
application;
xxx
Explanation.-If the cause of action is one in respect of which relief may
be granted by the revenue Court, it is immaterial that the relief asked
for from the civil Court may not be incidental to that which the revenue
Court would have granted."
25.The question before this court was whether a recorded tenure-holder having
prima facie title in his favour and in possession was required to file a suit in the
revenue court, or where the civil court had jurisdiction to entertain and decide
the suit seeking relief of cancellation of a void document. Upholding the
jurisdiction of civil court to try the suit, a two judge Bench of this Court
differentiated between a recorded tenure holder, and an unrecorded tenure
holder with the following observations:
"7. ...we are of the opinion that where a recorded tenure holder having
a prima facie title and in possession files suit in the civil court for
cancellation of sale deed having been obtained on the ground of fraud
or impersonation cannot be directed to file a suit for declaration in the
revenue court, the reason being that in such a case, prima facie, the
title of the recorded tenure holder is not under cloud. He does not
require declaration of his title to the land. The position would be
different where a person not being a recorded tenure holder seeks
cancellation of sale deed by filing a suit in the civil court on the ground
of fraud or impersonation. There necessarily the plaintiff is required to
seek a declaration of his title and, therefore, he may be directed to
approach the revenue court, as the sale deed being void has to be
ignored for giving him relief for declaration and possession."
26. Though the above principles emerge in the context of the bar under Section
331 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, the
logic of the judgment extends to the bar under Section 207 read with Section
256 of the of the Tenancy Act. A recorded khatedar stands on a different footing
compared to a claimant seeking a decree of their khatedari rights. A claimant
seeking a decree of khatedari rights is barred from filing a suit in the civil court
prior to their khatedari right being decreed by a revenue court when the relief
sought for by the civil court includes a determination of khatedari rights.
27. In the present case, the High Court has proceeded on the basis that the suit
seeking a declaration of the gift deed relating to disputed agricultural land
situated in Sikar as void and restraining Respondent Nos. 1 to 5 from transfer
or sale of the agricultural land before the civil court is squarely covered by the
bar to the jurisdiction of the civil court under the provisions of the Tenancy Act.
The claim of the appellant to khatedari rights is pending adjudication by a
revenue court which has the exclusive jurisdiction to adjudicate upon such a
claim. The appellant has no right to seek relief before the civil court without
first getting his khatedari rights decreed by the revenue court.
2 8 . For the above reasons, we find that there is no merit in the challenge
preferred by the appellant to the impugned judgment and order of the High
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 Court. The appeals shall, accordingly stand dismissed. There shall be no order
as to costs."
9 . In the aforesaid case, it has been held that in absence of khatedari rights of the
plaintiff in the subject agricultural land, his suit for declaration qua a registered deed is
not maintainable. This ratio in this judgment, squarely applies to the instant case.
10. Although, it is observed in case of Pyarelal (supra) that the plaintiff therein had
filed a suit in the revenue Court seeking declaration of their khatedari right; but,
absence of any suit by the plaintiff herein would not make any difference.
11. A coordinate bench of this Court has, in case of Vijay Singh & Ors. vs. Buddha &
Ors.-MANU/RH/1111/2012 involving almost identical controversy, held as under:
"10. Section 207 of the Rajasthan Tenancy Act provides that all suits and
applications of the nature specified in Schedule-III shall be heard and
determined by a Revenue Court and further it has been provided that no Court
other than a revenue court shall take cognizance of any such suit or application
or of any suit or application based on a cause of action in respect of which any
relief could be obtained by means of any such suit or application. The
explanation appended to Section 207 of the Act provides that if the cause of
action is one in respect of which relief might be granted by the revenue court, it
is immaterial that the relief asked for from the Civil Court is greater than, or
additional to or is not identical with that which the revenue court may possibly
grant. The term 'cause of action' though no where defined is now very well
understood. It means every fact which would be necessary for the plaintiff to
prove, if traversed, in order to support his right to judgment. It follows that in
each and every case the cause of action for filing of the suit shall have to be
strictly scrutinised in order to determine whether the suit is exclusively
cognizable by a revenue court or is impliedly cognizable only by a revenue
court or is cognizable by a Civil Court. If more than one reliefs are claimed in
the suit, then the jurisdiction of the civil or revenue courts to entertain the suit
shall be determined on the basis as to what is the real or substantial or main
relief claimed in the suit. If the main relief is cognizable by a revenue court, the
suit would be cognizable by the revenue court only and the fact that the
ancillary reliefs are cognizable by the civil court would be immaterial for the
determination of the proper forum for filing the suit. On the other hand, if the
main relief is cognizable by a civil court, the suit would be cognizable by civil
court only and ancillary reliefs are immaterial.
13. As whole of the land in dispute was never entered in the name of father of
appellants in the relevant revenue record and after his death even in the name
of appellants and name of Shri Ladu always remained entered in the record and
only one-half share of the land was entered in the name of Shri Nizam and
thereafter in the name of appellants, I am of the considered view that unless
the appellants obtain a decree of declaration to the effect that by means of sale
deed dated 3.11.1959 khatedari rights in whole of the land accrued initially in
favour of late Shri Nizam and after his death in their favour and name of Shri
Ladu remained wrongly entered in the revenue record and thereafter name of
respondents No. 1 to 7 was also wrongly entered, the sale deed dated
18.5.2010 executed by respondents No. 1 to 7 in favour of respondent No. 8 to
the extent of one-half share of Shri Ladu, can not be held to be without any
authority and void, ineffective and inoperative to the rights of appellants and

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 liable to be canceled. It is an admitted fact that Shri Ladu also was khatedar-
tenant of one-half share of the land in dispute, therefore, it is for the appellants
to prove that he died issue-less in the year 1958 and his share of the land also
devolved on respondent Shri Buddha and late Shri Mangla and they were
entitled to sale one-half share of Shri Ladu also to the father of appellants. The
appellants can have a right to get the sale deed dated 18.5.2010 canceled only
if it is found by a competent court that initially their father Shri Nizam was
khatedar-tenant and after his death appellants became khatedar tenant of whole
of the land in dispute. It is therefore, more than clear that the main or
substantial or real relief claimed by the appellants is that they may be declared
khatedar-tenant of whole of the land. As the land in dispute is an agricultural
land, such declaration can be granted only by a revenue court. Section 88 of
the Rajasthan Tenancy Act provides for filing of a suit for declaration by a
person claiming to be a tenant in respect of his right as a tenant or for
declaration of his share in the joint tenancy. The suit covered by Section 88 of
the Act is included at Item No. 5 in the IIIrd Schedule appended to the Tenancy
Act. Thus, in respect of a matter covered by the aforesaid item in the IIIrd
Schedule the revenue court alone has exclusive jurisdiction to entertain a suit
for declaration of the plaintiffs' right as a tenant of agricultural land. According
to provisions of Section 207 of the Act, the jurisdiction of the revenue court to
try a suit of the nature specified in Item No. 5 relating to agricultural tenancy
would be based on the cause of action for filing such suit. In the facts of the
case the relief regarding cancellation of sale deed dated 18.5.2010 at
the most can be said to be an ancillary/consequential relief to the
main relief of declaration of khatedari rights. In the light of the well
settled legal position, it cannot be disputed that if the main relief can
be granted only by a revenue court, it can grant ancillary/
consequential relief also. In my opinion, if the competent revenue
court comes to a conclusion that the appellants are entitled to be
declared khatedari-tenant of whole of the land in dispute, it can also
held that the sale deed dated 18.5.2010 is without any legal authority
and void, ineffective and inoperative to the rights of the appellants
and it is liable to be cancelled."
(Emphasis mine)
1 2 . If maintainability of the instant civil suit is examined in the backdrop of the
aforesaid judgments, it is apparent that the plaint does not reveal the plaintiff to be
recorded khatedar of the subject agricultural land; rather, it reflects that she has no
right in it by virtue of execution of a release deed of her entire share in it in favour of
her mother for cancellation of which, she has already filed a civil suit as also a revenue
suit. In view thereof, a clear picture which emerges is that the plaintiff is neither
khatedar of the subject agricultural land nor, has any subsisting right in it in absence
whereof, the suit for declaration of the sale deed dated 25.07.2014 executed by the
defendant no.4 in favour of the defendants no.1 to 3 and the decree of permanent
injunction cannot be granted by the Civil Court unless the plaintiff is able to get the
release deed cancelled from the competent Court and get herself declared khatedar
tenant of the subject land.
13. Submissions of the learned counsel for the plaintiff with regard to cancellation of
the mutation by the District Collector, does not merit acceptance. Indisputably, the
order dated 22.07.2019 passed by the District Collector in an appeal preferred by the
plaintiff against the mutation entry has been stayed by the BoR in a revision petition

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preferred by the defendants vide order dated 08.07.2021. Even otherwise also, the civil
suit as also the revenue suit filed by the plaintiff seeking cancellation of the release
deed of her entire share in the subject agricultural land are still subjudice.
14. Merely because the defendants have filed the written statements taking objection as
to maintainability of the suit, it could furnish no ground to the learned trial Court to
reject the application under Order 7 Rule 11 CPC for such an application is maintainable
at any stage of the suit and the plaint deserves to be rejected if it appears to be barred
by law from the averments made therein. Therefore, the order dated 22.03.2022 cannot
be sustained in the eye of law.
15. Resultantly, this civil revision petition is allowed. The order dated 22.03.2022 is
quashed and set aside. The application filed by the defendants under Order 7 Rule 11
CPC is allowed and the plaint stands rejected.
S.B. Civil Revision Petition No. 112/2022:
16. Learned counsels for the respective parties are in agreement that except the date of
the registered sale deed executed by the respondent no.4/defendant no.4 in favour of
the petitioners/defendants no.1 to 3 being different, the rest of the facts in the instant
case are identical to that in S.B. Civil Revision Petition No. 87/2022 which has been
allowed by this Court vide a separate order.
17. In view thereof, this revision petition is also allowed.
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