MANOHAR LAL Vs. RAJVIRKOR

JUDGEMENT

(1.) THIS Civil Miscellaneous appeal has been filed under Order 43 Rule 1(a) C.P.C. against the order dated November 19, 1979, passed by Additional District Judge, Bbaratpur, in suit No. 19/75 by which he ordered for returning the plaint to be presented to proper court.

(2.) IT will suffice to state for the purposes of this appeal that plaintiff appellant is owner of a piece of land, bearing Khasra No. 2484, in the abadi area of Bharatpur. The respondents Nos. 1 to 4 after dividing the northern portion of the said land in small residential plots, sold the same to respondents Nos. 5 to 14 and got the sale deeds registered in their names. The plaintiff appellant thereupon filed a suit against the respondents praying that the sale deeds executed by respondents Nos. 1 to 4 in favour of respondents Nos. 5 to 14 be declared null and void against the plaintiff appellant. It was further prayed that the respondents be restained from dispossessing the appellant and they may not further execute sale deeds in favour of any other persons. It was also prayed that in case the Court comes to the conclusion that any of the respondent is in possession of any portion of disputed land, a decree for possession of the same portion of the land be passed in favour of the appellant. Issues were framed in the trial court and arguments were heard on issue Nos. 3, 5, 7 and 8. The trial court, vide its order dated November 19, 1979, while deciding only issue No. 3 held that it had no jurisdiction to try the suit and it was ordered that the plaint be returned to the plaintiff appellant for presentation to the proper court.

(3.) THE contention of Shri R.S. Kejriwal, learned Counsel for the plaintiff appellant is that from the relief claimed in the plaint, it is abundantely clear that the suit was triable only by Civil Court It has been clear mentioned in last para, in para No. II of the plaintiff that the land is situated in Abadi area of Bharatpur in civil lines It is further stated that particular portion of the land of Khasra No. 2484, has been left for building purposes. It is also stated that this piece of disputed land has been never used for agricultural purposes. It is pointed out by the learned Counsel that in reply of para No. 2, the defendants No. 5, 6, 7, 8, 9 and 12, who are purchesers of the disputed land, did not deny this fact either in this para or anywhere also in their written statements. It was only denied by the above mentioned defendants that the disputed land is not owned or possessed by the plaintiff appellant. It is, therefore, submitted that since this allegation has not been specifically denied by the defendants, it shall be taken to have been admitted. Reliance has been placed on the case of The State of Raj and Ors. v. Smt. Tara Devi and Ors. 1974 W.L.N (U.C.) 37 in which it was held by this Court that under Order 8, Rule 5, C.P.C. every allegation of fact in the plaint if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted. It is also pointed out that defendant respondents Nos. 1 to 4, who are sellers of the land, have not appeared in this Court since they have no interest in the disputed land. It is also pointed out by the learned Counsel that it has been prayed in the plaint that the sale -deed may by declared to be null and void so far as the plaintiff, appellant is concerned. Such a relief can be granted only by civil court and no revenue court is competent to grant this relief. They further prayed that the defendants may be restrained from dispossessing the appellant from the disputed land. It has been also prayed that if any of the defendants are found to be in possession of any of the portion of the disputed plot, the possession of the same may be given to the appellant. It is, therefore, contended that the above prayers, clearly show that the main relief claimed by the appellant is to get the sale -deeds executed by respondents Nos. 1 to 4, in favour of purchasing respondents null and void so far as the appellant is concerned. It is also pointed out that the appellant has not claimed relief of putting him back in possession of the disputed land as he has clearly stated that he is in possession of the disputed land and that the respondents may be restrained from interfering with his possession. It is only casually that the applicant has mentioned that if any portion of the disputed plot is found to be in possession of any of the respondents, the appellant may be put in possession of the same. It is further pointed out that the learned trial court has erred in considering the definition of land as given in Section 3(24) of the Rajasthan Tenancy Act. This definition itself states that it excludes abadi land. Therefore, since the abadi land is excluded from the definition of land given in this Section, the same could not have been applied to a land, which is said to be abadi land. It is pointed out that abadi land has been defined is Section 103(b) of Land Revenue Law (Act) in Rajasthan. This Section states that 'abadi' land means the populated area of a village, town or city, and includes the site of such village, town or city, land reserved and set apart under Section 92 of the development of abadi there in and land held therein for building purposes whether a building has been constructed thereon or not. It is, therefore, contended that since both the parties admit that the disputed land is situated in populated area of Civil Lines of Bharatpur City, and has been held for building purposes and according to the respondent themselves, a latrine is constructed over it, the disputed land is covered by the definition of 'abadi land'. The learned trial court seriously erred in holding that even if the plaintiff appellant has left the disputed land for construction of building, the same shall remain agricultural land, even after construction of building, which is contrary to Section 103(b) of the Rajasthan Land Revenue Act. Reliance has been placed on Gopal v. Durga Prasad 1974 R.L.W. 151, in which similar view was taken. In this case also in the opening sentence of para 1 of the plaint, it was mentioned that the land in question is situated in the abadi land of Kasba Khetri. Defendants did not specifically deny this fact. After considering the definition of Abadi laud of Section 103(b) of the Rajasthan Land Revenue Act, it was held by this Court that it would not be unreasonable to hold that the temple and the land appurtenant thereto which includes the land in dispute, is in the populated area of the town of Khetri and must be deemed to be a part of the populated area, even though a portion of abadi land is used for cultivation. The same view was taken by this Court in case of Norain Singh and Anr. v. Shrimati Taramani SB. Civil Second Appeal No. 134/1981, decided on April 30, 1981.