DHARAM PAL Vs. A D J

JUDGEMENT

(1.) This writ petition is filed by the petitioner under Article 226 of the Constitution of India being aggrieved by the order passed by the revisional court whereby the revisional court allowed the revision and set aside the order passed by the trial court on the issue of jurisdiction as to whether the suit in question is triable by civil court or by revenue court,

(2.) The facts in brief are that the petitioner filed a suit on the allegation that Khedoo was co-bhumidhar of the land to dispute which is mentioned at the foot of the plaint, a copy whereof is annexed as Annexure-1 to the writ petition. Khedoo died and his interest was inherited by his widow Sohbatta, respondent No. 3 in the writ petition, Respondent No. 3, Sohbatta, remarried with Rajbali, resident of Devapar. Consequently her bhumidhari rights came to an end from the date of her remarriage. Smt. Sohbatta by three sale deeds dated 7.12.1965, 7.12.1965 and 15.2.1975 transferred her co-bhumidhari rights to respondent No. 2 and respondent No. 2 sold the same land to respondent No. 4, Bhadesar. The plaintiffs case was that all the sale deeds were void and the defendant who had already remarried had no right to execute the said sale deeds. Secondly, decree for cancellation of the said sale deeds was prayed for in the plaint. Another prayer in the alternative was that if the transferees have come into possession of the land purchased by him they may be ejected from the land in dispute.

(3.) The suit was contested by defendant Nos. 1 and 2, i.e., respondent Nos. 2 and 4 in the present writ petition. Subsequent purchasers of the land defendant Nos. 1 and 2, have pleaded by filing written statement that protection of Section 53A of the Transfer of Properties Act is available to them. Another defence was taken that the suit is barred by Section 5 of Consolidation of Holdings Act. The trial court, on the basis of pleadings of the parties, framed as many as eight issues and decided issue of jurisdiction as a preliminary issue. The trial court by its order dated 4.9.1981, found that since the pleading is that sale deed is ab initio void inasmuch as Smt. Sohbatta who had admittedly remarried has no right subsisting in the land, therefore, the sale deed is void and if the sale is void the suit will lie in the civil court. The defendants contested this claim. The trial court, however, decreed the suit on the ground that Smt. Sohbatta has no right to execute the sale deed and further that Smt. Sohbatta was recorded tenure holder. Therefore sale deeds are void. Aggrieved thereby the defendants preferred revision. The revision was allowed by the revenue court.