BHANWAROO KHAN Vs. AZIM KHAN

JUDGEMENT

(1.) THIS appeal is directed against the decree and judgment dated August 1, 1977 passed by the District Judge, Churu, by which the learned District Judge dismissed the appeal filed by the appellant and maintained the decree and judgment dated 9-9-69, passed by the learned Civil Judge, Ratangarh.

(2.) PLAINTIFF appellant Bhanwaroo Khan, Sabdal Khan Jassu Khan and Adam Khan (sons of Mishri Khan) filed a suit in the Court of the Civil Judge Ratangarh, against Az. m Khan and Mehboob Khan for declaration and perpetual injunction with respect to the land bearing Khasra No 164 measure 46 Bighas and I Biswa. It was averred in the plaint that Bhopal Khan-the grand-father of the plaintiffs and father of Mehboob Khan, was the Khatedar of the land measuring 46 Bighas 1 Biswa in Khasra No. 464 Situated the Rohi of the town Sujangarh. After the death of Bhopal Khan his two sons Mishri Khan (the father of the plaintiff) and Mehboob Khan,who is the other son of Bhopal Khan, were entered as the Khatedar tenants On June 9, 1951,the ancestral property was partitioned between Mishri Khan and Mehboob Khan-the two sons of Bhopal Khan and this partititon was entered into a Bahi. As per this partition, 41 Bighas 4 Biswas of land of Khasra No 192 came to the share of Mehboob Khan while 46 Bighas 1 Biswa of the land of Khasra No 464 came to the share of Mishri Khan and both remained in possession of their respective land since 9-6-1951. It was furthe averred in the plaint that though the partition of the land had taken place between Mehboob Khan and Mishri Khan, but Mehboob Khan, by a sale deed dated June 22, 1967, which was registered on June 24, 1967, in the Office of the Sub-Registrar, Sujangarh, sold his share,. i. e. , half of the portion of this land, to Azim Khan. It was, also averred in the plaint that the defendant No. 2 Mehboob Khan had no right to sell this land and, therefore, the sale made by Mehboob Khan in favour of Azim Khan is illegal, null and void and ineffective against the plaintiffs. It was further averred in the plaint that when the plaintiffs came to know regarding this sale they approached the defendant No. 2 Mehboob Khan and the defendant No. I, on 13-7-67, got an agreement executed in favour of the plaintiffs. By this agreement he agreed that the sale made by him in fevour of Azim Khan was without consideration, void and may be declared as nullity. The deed was, also got registered before the Sub-Registrar, Sujangarh. It was therefore, prayed that it may be declared that the registered sale-deed dated 24-6-67, executed by Mehboob Khan in favour of Azm Khan may be declared as unauthorised,illiegal, void and ineffective against the plaintiffs and the defendants may be restrained form interfering in their possession The defendant No 2 Mehboob Khan the uncle of the plaintiffs filed the written statement admitting the claim of the plaintiffs. The suit was contested by Azim Khan, in whose favour the sale-deed was executed The learned Civil Judge, by its decree and judgment dated 9-6-69, dismissed the suit filed by the plaintiffs by holding that the Civil Court has no jurisdiction to try the suit and the suit is exclusively triable by the Revenue Court. The learned Civil Judge therefore,directed to return the plaint to the plaintiffs for presentation in The proper Court. Dissa-t. sged with the decree and judgment dated 9-6-69, the plaintiffs preferred an appeal before the learned Additional District Judge, Churu. When the matter was being heard by the learned Additional District Judge, Churu in the appeal it was found by the learned Additional District Judge that the learned trial Court has decided the suit only on the question of jurisdiction and did not decide other two issues. He therefore, directed the trial Court to give its findings on the remaining issues. The learned trial Court, by its judgement dated 29-6-72, decided the other issues and remitted the case alongwith the findings to the learned District Judge, Churu. The learned District Judge, Churu thereafter heard the matter and by its decree and judgment dated August 1, 1977. dismissed the appeal filed by the plaintiff-appellants on the ground that the suit is exclusively triable by the Revenue Court and the Civil Court has no jurisdiction to try the suit. So far as the findings on other two issues are concerned the learned District Judge was of the opinion that since the matter is to be tried by the Revenue Court and, therefore, it is not necessary to consider the appeal on other points. It is against this decree and judgment dated 1-8-1977, that the plaintiff appellants have preferred this second appeal.