GANGA Vs. GIRDHARI

JUDGEMENT

(1.) THIS review petition has been filed by the plaintiff � petitioner Smt. Ganga for review and recall of the order dated 23rd March, 2006 passed by a co-ordinate Bench of this Court dismissing her first appeal No.556/2004 � Smt. Ganga vs. Girdhari & ors.

(2.) THE plaintiff-appellant had filed a suit for declaration and perpetual injunction against the respondent-defendants Girdhari & ors. that the suit land in question was purchased by the plaintiffs on 22.04.1972 from the father of the defendants Nos. 1 to 3 namely Girdhari, Shanker Lal both sons of Shri Heerji Nayak and Smt. Badam wife of Shri Heerji Nayak and such land was purchased for consideration and the plaintiff had invested thousands of rupees for development of land. In the year 1982, the defendants cut some of the trees standing on the land of the plaintiff. The criminal proceedings were initiated against them and ultimately a compromise between the plaintiff's son and defendant No.1 was executed, admitting the ownership of the plaintiff on the land stated. In the said suit for declaration and injunction, the defendants filed an application under Order 7 Rule 11 CPC for dismissal of the suit at the threshold on the anvil of Order 7 Rule 11 CPC inter alia on the ground that sale by 'Nayak' � a person belonging to SC/ST category was hit by Section 42 of the Rajasthan Tenancy Act and, therefore, such sale being void, the suit for declaration and injunction was not maintainable.

(3.) HAVING heard learned counsels, this Court is of the opinion that while categorising all the castes in Scheduled Caste/Scheduled Tribe and Other Backward Classes is within the domain of legislature and it is not for this Court to classify any particular caste in particular catogory, but definitely the documents produced on record by the review petitioner prima facie indicate that the Nayaks caste is divided into different sub-castes also and some of them have been kept in Scheduled Caste Category and some of them in Scheduled Tribe Category and some of them in Other Backward Classes Category from time to time. Thus, it definitely becomes a matter of evidence as to what kind of caste or sub-caste, the defendants family belonged, while determining the validity of the sale deed in question and to decide the question whether the sale was hit by Section 42 of the Rajasthan Tenancy Act or not ? Once it becomes the question of fact warranting to be decided on the basis of the evidence, the applicability of Order 7 Rule 11 CPC is ruled out.