BANWARI LAL Vs. ANAND AND OTHERS

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The defendant-petitioner has preferred this civil revision petition under Section 115 of the Code of Civil Procedure against the impugned order dated 17.3.2009 passed by Additional District Judge Kotputli (District Jaipur) in Civil Suit No.45/2007 whereby the learned Court below has dismissed the application under Order 7 Rule 11 CPC filed by the petitioner.

(3.) Brief relevant facts for the disposal of this revision petition are that the plaintiff-non-petitioners filed a suit for specific performance of contract and permanent injunction against the defendant-petitioner on 1.10.2007 in the Court below with the averment that the petitioner agreed to sell 0.10 hectare land out of an agriculture land of his khatedari comprising in Khasra No.1080 in lieu of sale consideration of Rs.50,000/- and in this regard an agreement to sell was also executed on 10.5.2002. It was also averred that the entire amount of sale consideration was paid to the petitioner on the same day and physical possession was also handed over to the non-petitioners. It was further submitted that the petitioner undertook and made a promise that he will get the agriculture land so sold converted for non agriculture use and after that he will either get a 'Patta' issued or execute a registered sale deed in favour of the non-petitioners. As the petitioner failed to execute the registered sale deed as well as get the requisite 'Patta' issued in favour of non-petitioners despite several demands made and notice issued by the non-petitioners, present suit was filed with the prayer that a decree for specific performance may be passed to the effect that the petitioner after getting the land converted for non agriculture purpose either execute a registered sale deed or get a 'Patta' issued in favour of the non-petitioners. It was also prayed that a decree for permanent injunction may be passed restraining the petitioner not to further sale or otherwise transfer the land in question to any other person in any manner and be restrained to interfere in the peaceful possession and occupation of the nonpetitioners in the land in question. The petitioner filed written statement on 15.7.2008 and therein the material averments made in the plaint were denied and it was specifically contended that the alleged agreement to sell is in violation of Section 42 of the Rajasthan Tenancy Act (hereinafter to be referred as 'the Act') as a person of scheduled caste category cannot transfer agriculture land of his khatedari to a person who is not a member of that category. On 6.10.2007 an application under Order 7 Rule 11 CPC was filed by the petitioner and it was averred and prayed therein that the agreement to sell, on the basis of which the present suit for specific performance of contract has been filed, is against the provisions of Section 42 (b) of the Act as it provides that a person of scheduled caste category cannot transfer agriculture land to a person not belonging to that category and, therefore, the agreement is ab-intio void and inenforceable under Section 23 of the Contract Act. It was prayed that the suit be dismissed on that account only. Reply to the application was filed by the non-petitioners on 11.10.2007 and it was submitted that the land in question was agreed to be sold by the petitioner to the non-petitioners with an undertaking and condition that the same will be first converted for non agriculture purposes and thereafter either a registered sale deed will be executed or he will get a 'Patta' issued in favour of the non-petitioners and, therefore, it cannot be said that the agreement to sell is against the provisions of Section 42 (b) of the Act. It was also averred that as in the light of the undertaking and promise made by the petitioner, the land in question is required to be converted for non agriculture use first, the prohibition imposed by Section 42 (b) of the Act is not applicable. It was further averred that at present the land in question is not being used for agriculture purposes and it was purchased with an undertaking that it will be used for residential purpose and infact it has been converted for non agriculture purpose at the site. Learned Court below after hearing both the parties dismissed the application filed by the petitioner. It was reasoned by the Court below that as the petitioner undertook in the agreement dated 10.5.2002 itself that the land in question will be sold only after getting it converted for non agriculture purpose, the prohibition contained in Section 42 (b) of the Act is not applicable at this stage of the proceedings and it being a mixed question of law and fact can be decided only after recording the evidence of both the parties. Feeling aggrieved, the defendant-petitioner is before this Court by way of this civil revision petition.