GANGA Vs. GIRDHARI

JUDGEMENT

(1.) This is an appeal preferred by original plaintiff Smt. Ganga against the judgment and decree dated 18th August 2004 passed by learned Addl. District Judge (Fast Track) No.2, Bhilwara in Civil Original Suit No. 62/2004 (Smt. Ganga Vs. Girdhari & Ors.) dismissing the suit of the plaintiff for the relief of declaration and perpetual injunction against the respondent-defendants while deciding an application moved by defendant No.1 & 2 under Order 7 Rule 11 read with Sec. 151 CPC.

(2.) Relevant facts, in brief, are as follows:

(3.) The learned counsel for the appellant challenging the judgment and decree passed by the trial Court has contended that the defendants had stated their caste to be Nayak but whether caste 'Nayak is a scheduled caste or a scheduled tribe can be decided only after filing written statement and only on proving sufficiently the same the suit of the plaintiff could be dismissed. It was further contended that the State Govt. has issued a circular whereby the castes 'Mali and 'Nayak both have been included in backward class category and likewise the caste 'Nayak has been shown in the lists of scheduled caste and scheduled tribes and the caste 'Nayak has been shown by the names of Nayka, Mota Nayak, Nanna Nayak etc. and it being a disputed question as to in which schedule the defendants fall, without giving opportunity to lead evidence to the parties, the judgment & decree impugned is liable to be quashed. In the last, he contended that the judgment and decree deserves to be set aside and the case is liable to be remanded for decision afresh on merit after filing of written statement by the defendants.