SARIF AND ORS. Vs. BATUL AND ORS.

JUDGEMENT

(1.) A Civil Suit 26/2011 (Batul Bano & Ors. v. Abdul Hamid & Ors.) is said to be pending in the court of Additional Civil Judge (Junior Division) No. 2, Sikar. In that Suit an application under Order 7 Rule 11(d) C.P.C. was filed by the petitioners/defendants and that application was dismissed by the impugned order dated 05.02.2013 by that court which has been appealed against by the said defendants.

(2.) I have heard both the parties and perused the documents also. In the application Order 7 Rule 11(d) C.P.C. it was mentioned by the appellants that the suit filed by the plaintiffs was for cancellation of a Will and the counter -claim filed by the defendants was for declaration of their Khatedari Rights. It was argued by the defendants in the court below that main prayer before the court below in the matter relates to the declaration of Khatedari Rights of the parties and prayer for declaration of Will as null and void was ancillary relief only and so as per Section 207 of Rajasthan Tenancy Act 1955 and looking to the provisions of third schedule given under the Act, the suit was triable exclusively by the Revenue Court only. Appellants have argued that their application under Order 7 Rule 11(d) filed in the trial court has wrongly been dismissed by that court. Appellants rely upon the following ruling: -

(3.) IT was further held that the court must be guided by the substance of the plaint and not merely by its form.