CHANDI Vs. NANA LAL

JUDGEMENT

(1.) THIS is a defendants' revision against the order of the learned Munsif and Judicial Magistrate, Nimbahera dated 17 -3 -1986, by which he dismissed the defendants' application under Order VII, Rule 11, CPC and held that the suit was triable by it.

(2.) THE brief facts giving rise to this revision are that the plaintiff Nana Lal instituted the suit against Smt. Chandi and others for the cancellation of two sale deeds and declaring them void against the plaintiff and further praying that the defendants may be restrained from interfering with the plaintiff's possession over the land in dispute. The case of the plaintiff was that Khasras No. 330 measuring 2 bighas, 2 biswas, No. 950 measuring 2 bighas, 8 biswas. No. 962 measuring 2 bighas, 4 bishwas and No. 963 measuring 1 bigha, 17 biswas were in 'Khatedari' of Madan Lal, Moti Lal and Ramjas sons of Ram Dayal. Moti Lal died leaving behind his widow Jawer Bai. Before the death of Moti Lal all three brothers Moti Lal, Ramjas and Ram Dayal had sold Khasras No. 330 and 962 to the plaintiff's father Nandaji in Samvat 2017 -18 and had handed over the possession thereof to him. The sale deed is alleged to be in a 'bahi'. The plaintiff further Against order dated 17 -3 -1985 passed by Shri Megha Ram Choudhary, Munsif and Judicial Magistrate, Nimbahera alleged that his father died about 15 years back leaving behind the plaintiff and his brother Prabhu. The case of the plaintiff further was that his brother Prabhu improperly wanted to deprive the plaintiff of his share of the land and with this intention he joined hands with Ramjas and Madan Lal and taking advantage of the fact that the land continues to be recorded in the names of Jawer Bai, Madan Lal and Ramjas he manipulated to show that the land belonged to Ramjas and Madan Lal alone and got a sale deed of the land executed by them in favour of his wife Smt. Chandi. He conveniently concealed the fact that the land had already been sold by Madan Lal, Ramjas and Ram Dayal to Nandaji. Further, it was alleged that earlier in 1975, there had been a family settlement between the plaintiff and his brother Prabhu and Khasra No. 330 came to the share of the plaintiff and Khasra No. 962 fell to Prabhu's share and they had been cultivating the land according to their shares, still these facts were also concealed and the sale deed was got executed in favour of Smt. Chandi. The plaintiff further goes on to allege that Smt. Chandi had further sold one third share of the property in dispute by a bogus sale deed got registered in the name of defendant No. 3 Fateh Mohd. The plaintiff alleged that these sale deeds are not binding on him and he continues to be in possession of khasra No. 330, which had fallen to his share on account of the family settlement in 1975. He, therefore, prayed that these two sale deeds may be declared to be void and ineffective against the plaintiff and for an injunction restraining the defendants from interfering with the plaintiff's possession over khasra No. 330. The defendants contested the suit and raised objection to the suit being entertained by the civil court. Their case was that the suit was exclusively triable by a revenue court and, therefore, the plaint should be rejected by the civil court. They moved an application under Order VII, Rule 11, CPC in this respect and after hearing the parties, the learned Munsif rejected that application on the ground that since declaration to the effect that the two sale deeds were void and ineffective against the plaintiff had been asked for in the suit, the suit was triable by a civil court because such a relief can only be granted by a civil court and not by a revenue court. Aggrieved of this order of the learned Munsif dated 17 -3 -86, the defendants have come up in revision.

(3.) IT is contended by the learned counsel for the petitioner that the learned Munsif has wholly mis -construed the plaint and has assumed jurisdiction to entertain the suit which did not vest in him. It is contended that the real relief asked for by the plaintiff is a relief for injunction on the ground that he continues to be in possession of the land in dispute as a 'khatedar' and the defendants have no right in it and the other relief for declaring the sale deeds referred to above to be void was not at all necessary and the plantiff need not have asked for the same. According to the learned counsel their relief has been asked for merely in order to justify the filing of the suit before a civil court. On the other hand, the learned counsel for the non -petitioner has supported the order of the learned Munsif on the ground that it was necessary for the plaintiff to have asked for the declaration of the sale deeds being void and ineffective against him.