POONAM CHAND Vs. PHOOLA RAM

JUDGEMENT

(1.) In this revision petition filed under Sec. 115, C.P.C. the petitioner-plaintiff is challenging the validity of impugned order dt. 07.05.2008 passed by the Addl. District Judge, Bhinmal in Civil Original Suit No. 17/2007 whereby the trial Court dismissed the suit while allowing application filed under Order 7 Rule 11, C.P.C. by defendant-respondent Phoola Ram. As per facts of the case, a suit under Sec. 6, Specific Relief Act was filed by the petitioner-plaintiff in which an application under Order 7 Rule 11, C.P.C. was filed by the respondent-defendant and the trial Court allowed the said application filed under Order 7 Rule 11, C.P.C. and dismissed the suit filed by the petitioner while giving the finding that the Court has no jurisdiction to decide the suit because the land in question is agriculture land.

(2.) Learned Counsel for the petitioners submits that at the time of deciding the suit the facts and averments and grounds mentioned in the plaint can be seen and no other material can be taken into account for the purpose of deciding application filed under Order 7 Rule 11, C.P.C. and, upon perusal of the suit filed by the petitioner, it will reveal that specific plea was taken by the petitioner that he is holding patta of urban (abadi) land and said patta was issued by the Gram Panchayat Jaswantpura in favour of one Bhaka s/o Malji Lohar which was purchased by the plaintiff from Bhaka through registered sale-deed dt. 05.03.1987 and permission was also granted for construction by the Gram Panchayat; meaning thereby, the finding given by the trial Court while deciding application filed under Order 7 Rule 11, C.P.C. is based upon borrowed notion, therefore, the order impugned deserves to be quashed.

(3.) Learned counsel for the petitioner-plaintiff further argued that in the order impugned the trial Court adjudicated the matter without evidence and gave finding that land is agriculture land which is totally illegal and erroneous because in the pleadings of the suit it does not emerge that there is any pleading that the land in question is agriculture land, therefore, the order impugned deserves to be quashed.