Rajasthan High Court – Jodhpur
Sunil vs Ostwal Phoschem (India) Ltd … on 6 January, 2025
Author: Rekha Borana
Bench: Rekha Borana
[2025:RJ-JD:462]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil First Appeal No. 215/2023
1. Sunil S/o Manohar Lal Sanadhya, Aged About 42 Years,
Sanadhya Bhawan, Bhopalganj Bhilwara(Raj)
2. Brijesh Kumar S/o Manohar Lal Sanadhya, Aged About 47
Years, Sanadhya Bhawan, Bhopalganj Bhilwara(Raj)
3. Yogesh Kumar S/o Manohar Lal Sanadhya, Aged About 44
Years, Sanadhya Bhawan, Bhopalganj Bhilwara(Raj)
4. Anil S/o Manohar Lal Sanadhya, Aged About 38 Years,
Sanadhya Bhawan, Bhopalganj Bhilwara(Raj)
5. Smt Sheela W/o Manohar Lal Sanadhya, Aged About 65
Years, Sanadhya Bhawan, Bhopalganj Bhilwara(Raj)
----Appellants
Versus
1. Ostwal Phoschem (India) Ltd, Through Its Director Shri
Rajendra Prasad Ostwal S/o Haraklal Ostwal R/o H-46
Azad Nagar Bhilwara
2. Pankaj Ostwal S/o Mahendra Kumar Ostwal, R/o 5-O-2,
R.c. Vyas Colony Bhilwara
3. Manohar Lal S/o Prabhu Lal Sanadhya, Sanadhya
Bhawan, Bhopalganj Bhilwara(Raj)
4. State Of Rajasthan, Through Land Holdar Tehsildar,
Bhilwara
----Respondents
For Appellant(s) : Mr. Rishabh Shrimali
For Respondent(s) : Mr. Rakesh Chotia
HON'BLE MS. JUSTICE REKHA BORANA
Reportable Judgment 06/01/2025
1. The present regular first appeal has been preferred against
the order dated 15.04.2023 passed by the Additional District
Judge No.3, Bhilwara in Civil Original Suit No.05/2021 whereby
the application under Order VII Rule 11 of Code of Civil Procedure,
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1908 (‘CPC‘) as filed on behalf of the defendants had been allowed
and as a consequence, the suit for cancellation of sale-deeds,
declaration of khatedari rights and permanent injunction as filed
on behalf of the plaintiffs stood dismissed. A decree has been
drawn accordingly.
2. The averments made in the plaint were to the effect that the
land in question was an ancestral and joint Hindu family property
and the plaintiffs being coparceners were entitled for their
respective shares in the suit property. However, defendant No.3 –
Manoharlal, father of plaintiffs No.1 to 4 and husband of plaintiff
No.5, sold out the said property to defendants No.1 & 2 without
there being any necessity and without he being solely entitled to
sell out the same.
3. With the above pleadings, prayers to cancel the sale deeds
dated 21.08.2020; for possession of the land in question; for
declaration of the land to be the joint Hindu family property and
further to be the khatedari land of the plaintiffs; and for
permanent injunction, were made in the suit.
4. An application under Order VII Rule 11, CPC in the said suit
was filed on behalf of defendants No.1 & 2 on the grounds, firstly
that the suit in question is effectively for declaration of khatedari
rights qua an agricultural land and hence, the same was not
maintainable before a Civil Court. Secondly, no suit for declaration
was even maintainable in terms of Section 8 of the Hindu
Succession Act, 1956 at the behest of son and wife of defendant
No.3 as defendant No.3 himself was alive. Thirdly, the land in
question was recorded in the revenue records in sole khatedari of
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defendant No.3 and hence, he being the sole owner/khatedar was
legally entitled to sell out the same. Fourthly, even if it is assumed
that the property in question was a joint Hindu family property,
defendant No.3 sold out the same being the Karta of the family
and hence, the plaintiffs had no right to challenge the same and
more so, when defendant No.3 himself was alive. Lastly, the land
in question was not an ancestral property but the same was of
sole ownership of defendant No.3 and the plaintiffs, in collusion
with defendant No.3, malafidely filed the present suit to somehow
deprive the defendants of their legitimate rights.
5. No reply to the application was filed on behalf of the
plaintiffs.
6. Learned Trial Court proceeded on to allow the application
while relying upon the judgments in Ramswaroop & Anr. Vs.
Smt. Kesar & Ors.; 2015 WLC (Raj.) UC 563 and Amrit Lal &
Ors. Vs. Heera Ram & Anr.; 2016 (3) DNJ (Raj.) 1151.
7. Learned counsel for the appellants submitted that firstly, the
suit in question was essentially for cancellation of the registered
sale deeds in terms of Section 31 of the Specific Relief Act, 1963
and hence, it is only the Civil Court which would have the
jurisdiction to entertain the reliefs as prayed for. So far as the
relief for declaration is concerned, the same is an ancillary relief.
Secondly, the reliefs as prayed for in the present suit do not fall
within the ambit of Sections 82 to 91 of the Rajasthan Tenancy
Act, 1955 (hereinafter referred to as ‘the Act of 1955’) and hence
the reliance of the learned Trial Court on the said provisions was
totally fallacious.
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8. Learned counsel further submitted that in terms of Section 9
of CPC, the Civil Court has jurisdiction to try all suits of civil nature
except the suits which are either expressly or impliedly barred. So
far as the relief for cancellation of sale deeds is concerned, the
same is within the jurisdiction of the Civil Court only and further,
the reliefs for declaration and injunction being not expressly
barred, the Civil Court definitely has the jurisdiction to entertain a
suit pertaining to agricultural land also, if the reliefs for injunction
and declaration are ancillary in nature.
9. Learned counsel further submitted that even otherwise the
sale deeds in question being voidable documents, the suit was
maintainable before a Civil Court only in terms of ratio as laid
down in Hasti Cement Pvt. Ltd., Jodhpur & Anr. Vs. Sandeep
Charan & Ors.; 2018 (2) DNJ (Raj.) 421.
10. Learned counsel lastly submitted that even if the Court
reached to a conclusion that the relief for declaration as prayed
for, could not be granted/entertained, in the alternate, it could
definitely have framed an issue qua the same and could have sent
the same to the Revenue Court for decision thereupon in terms of
Section 242 of the Act of 1955. By any means, the plaint could not
have been rejected.
11. In support of his submissions learned counsel also relied
upon the judgment rendered in Sunil Dhanpat Raj Bhandari &
Anr. Vs. Shakuntala Kumari alias Sangeeta Kanwar Prem
Singh & Ors.; 2018 (3) RLW (Raj.) 2396.
12. Per contra learned counsel for the respondents submitted
that a bare perusal of the reliefs as prayed for in the suit makes it
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[2025:RJ-JD:462] (5 of 14) [CFA-215/2023]
clear that the main relief is for declaration, firstly of the property
in question to be ancestral and secondly of khatedari rights of the
plaintiffs. Definitely, unless and until the said rights are
determined and a declaration thereof is made by a competent
Revenue Court, no relief for cancellation of sale deeds could even
otherwise be granted by the Civil Court. Learned counsel further
submitted that in the present matter, even the issue whether the
land in question was an ancestral one or not is in dispute and
hence, unless and until the plaintiffs got their rights declared by a
competent Revenue Court, the suit with a relief for cancellation of
sale deeds could not have been maintained by them.
13. Learned counsel further while relying upon the judgment
passed in the case of Rukmani Vs. Bhola & Ors.; 2012 (4)
RLW (Raj.) 3050 submitted that only the Revenue Court is
competent to grant the relief of declaration qua an agricultural
land and if, after adjudication, the Revenue Court would pass a
decree for declaration in favour of the plaintiffs, that Court would
be competent to grant the consequential relief also. In the
eventuality of the suit for declaration been decreed, as a
consequential relief, the Revenue Court is competent to declare
that the sale deeds in question are null and void to the extent of
the share of the plaintiffs and the plaintiffs would not even be
required to file a separate suit thereafter for cancellation of sale
deeds. By all means, the present suit was not maintainable before
a Civil Court and the learned Trial Court rightly allowed the
application under Order VII Rule 11, CPC.
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14. Besides Rukmani’s case (supra), learned counsel relied
upon the Apex Court judgment in the case of Pyarelal Vs.
Shubhendra Pilania & Ors.; (2019) 3 SCC 692 and the
judgments passed by the Coordinate Benches of this Court in
Smt. Kamli Devi Vs. Smt. Rampyari & Ors.; 2023 (1) RLW
(Raj.) 740 and Mahendra Kumar & Ors. Vs. Smt. Maya Devi
& Ors.; S.B. Civil Revision Petition No.182/2017 (decided
on 11.02.2021).
15. Heard learned counsels and perused the record.
16. Before adjudicating on the issues concerned, the
consideration of the reliefs as prayed for in the suit would be
relevant as for determining whether the Civil Court or the Revenue
Court has the jurisdiction to try the suit, the frame of the suit, the
allegations contained in the plaint, the substance and the main
object of the suit, the pith and substance of the plaint and not
merely its form, are required to be looked into. The reliefs as
prayed for in the suit in question are as under:-
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tkosA”
17. A bare perusal of the above reliefs makes it clear that
although the first relief is for cancellation of the sale deeds but
relief No.3 specifically is for declaration to the effect that the
property in question being an ancestral and joint Hindu family
property, is the khatedari land of the parties and further that the
plaintiffs are entitled for 1/5th share each in the said property.
18. A conjoint reading of the above reliefs makes it further clear
that only if relief No.3 for declaration is decided in favour of the
plaintiffs, they would be entitled to get the sale deeds cancelled
i.e. relief No.1. Vice versa cannot be possible as without a finding
of the land in question to be an ancestral and joint Hindu family
property and a declaration of the plaintiffs to be entitled for 1/5th
share each, the sale deeds executed by defendant No.3 cannot be
directed to be cancelled. That is to say, prayer No.1 is totally
consequential and dependent on the result of prayer No.3.
Therefore, in the specific opinion of this Court, the main relief in
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[2025:RJ-JD:462] (8 of 14) [CFA-215/2023]
the present suit is for declaration of khatedari rights of the
plaintiffs and the other reliefs, mainly relief No.1, is an ancillary
and consequential relief.
19. Section 88 and Section 207 of the Act of 1955 provide as
under:-
“88. Suits for declaration of right– (1) Any person
claiming to be a tenant or a co-tenant may sue for a
declaration that he is a tenant or for a declaration of
his share in such joint tenancy.
(2) A tenant of Khudkasht may sue for a declaration
that he is such a tenant.
(3) A sub-tenant may sue the person from whom he
holds for declaration that he is a sub-tenant.
(4) A landholder other than a State Government may
sue a person claiming to be a tenant or co-tenant of a
holding or a tenant of Khudkasht or a sub-tenant for a
declaration of the right of such person.
207. Suits and applications cognizable by revenue
court only– (1) All suits and application of the nature
specified in the Third Schedule shall be heard and
determined by a revenue court.
(2) No court other than a revenue court shall take
cognizance of any such suit or application or of any suit
or application based on a cause of action in respect of
which any relief could be obtained by means of any
such suitor application.
Explanation– If the cause of action is one in respect of
which relief might be granted by the revenue court, it
is immaterial that the relief asked for from the civil
court is greater than, or additional to, or is not identical
with, that which the revenue court could have
granted.”
20. In terms of the above provisions of the Act of 1955, the
jurisdiction to declare khatedari rights vests exclusively with the
Revenue Courts. Only after such determination been made by the
Revenue Court, a Civil Court can proceed to decree the relief for
cancellation of any consequential document. The explanation to
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Section 207 clarifies that if the cause of action in respect of which
relief is sought can be granted only by a Revenue Court, it is
immaterial that the relief asked for from the Civil Court is greater
than, or in addition to, or not identical with the relief which the
Revenue Court could have granted. As observed by Hon’ble the
Apex Court in Pyare Lal (supra), where Khatedari rights are yet
to be decreed, a claimant must first approach the Revenue Court.
Therein, the Court observed that unless and until the rights qua
an agricultural land are determined by the Revenue Court, no
consequential relief for cancellation of any document pertaining to
the said land can be granted by the Civil Court. The above ratio
has been reiterated in the recent judgment of a Co-ordinate Bench
of this Court in Smt. Kamli Devi (supra) wherein the Court, while
dealing with almost akin facts, observed as under:-
“9.The trial court has categorically observed in its order
dated 16.05.2022 that plaintiff has not instituted any
independent proceedings before the revenue court for
declaration of her 1/8th share/khatedari rights in the
aforesaid lands in question for which she has assailed the
registered sale deeds to the extent of her 1/8th share.
Learned counsel for appellant also admits before this Court
that no such independent and separate revenue
proceedings by appellant-plaintiff have been instituted
before the revenue court and her claim for 1/8th share in
the aforesaid lands in question is solely based on judgment
and consent decree dated 23.02.2015. For the discussion
made hereinabove, judgment and decree dated 23.02.2015
does not render any help to plaintiff for claiming her 1/8th
share/khatedari rights in lands in question.
10.It is trite law that while considering the application
under Order VII Rule 11 CPC, the averment of plaint and
documents referred in the plaint and produced along with
plaint are to be considered. Any defence put forth by
defendants is wholly relevant at this stage. Further, it is no
more integra that pleadings of plaint should be considered
as a whole. If, on a meaningful reading of the plaint, not
by a cursory reading, the plaint does not disclose a cause
of action and clear right to sue to plaintiff or otherwise(Downloaded on 06/01/2025 at 09:40:20 PM)
[2025:RJ-JD:462] (10 of 14) [CFA-215/2023]appears to be barred by law, the same can be rejected
under Order VII Rule 11 CPC. In the present case at hand,
on perusal of pleadings of plaint as a whole and
considering documents and judgments of revenue court
challenged and referred in the plaint, the clear position
emerges is that unless and until plaintiff does not get
declared her 1/8th khatedari rights/share in the aforesaid
lands in question before the revenue court, she has no
cause of action/right to challenge the sale deeds executed
by her father and the subsequent sale deeds before the
civil court. She has wrongly invoked the jurisdiction of civil
court to get indirectly declare her 1/8th khatedari rights to
the extent of 1/8th share in the agricultural lands of sale
deeds in question, for which exclusive jurisdiction is vested
to the revenue court by virtue of Section 207 of Rajasthan
Tenancy Act, 1955. If appellant-plaintiff approached to the
revenue court seeking declaration of her 1/8th
share/khatedari rights in the land in question under
disputed sale deeds executed by her father and her
revenue suit is decreed in her favour as a natural corollary
and in consequence sale deeds in question may be
declared as null and void to the extent of 1/8th
share/khatedari rights of appellant.”
21. In Kamli Devi (supra), the Court relied upon the earlier
judgment of this Court in Rukmani Vs. Bhola & Ors. (supra)
wherein also, the Court was dealing with almost akin facts. The
facts in the case of Rukmani (supra) being totally identical, a
reproduction of the relevant portion of the said judgment would be
relevant for the present matter. The Court therein observed as
under:-
“7. In the present case, the relief claimed in the suit is
that the sale deed dated 4.7.85 may be cancelled on the
ground that the land which has been transferred by way
of this sale deed is an ancestral property, and therefore,
the deceased-husband of the plaintiff, who was son of
defendant-respondent-Shri Bhola had 1/2 share in it and
the remaining 1/2 share belongs to Shri Bhola and after
the death of her husband, the plaintiff has 1/2 share in
it. It is an admitted fact that the whole of the disputed
land is recorded in revenue record only in the name of
defendant-Shri Bhola. It has been averred by the
defendants that the land in dispute is not an ancestral
property and, therefore, son of defendant had no right in
the life time of his father and, therefore, plaintiff also has
no right in it. Thus, the main question to be determined(Downloaded on 06/01/2025 at 09:40:20 PM)
[2025:RJ-JD:462] (11 of 14) [CFA-215/2023]is that whether the land in dispute is an ancestral
property and, therefore, the deceased-husband of the
plaintiff had 1/2 share in it and was co-tenant alongwith
his father the defendant-Shri Bhola. It is well established
that in order to determine the true nature of the relief
claimed in a suit, the pith and substance and not the
form in which the relief may be couched has to be
considered. On considering the pleadings in the plaint in
the present case carefully and applying the doctrine of
pith and substance of the pleadings, I have come to the
conclusion that the relief claimed in the suit really
amounted to a relief for a declaration that the deceased-
husband of the plaintiff and after his death the plaintiff
has 1/2 share and is co-tenant in the land in question.
The suit in the present case cannot be said to be one for
mere avoidance of the sale deed dated 4.7.85. In my
view unless a clear finding is given that the plaintiff is a
co-tenant and has 1/2 share in the land in question, the
sale deed in question cannot be cancelled. It cannot be
said in the present case that unless the sale deed is
cancelled, the revenue court cannot grant a declaration
as to the share of the plaintiff in the land in question. As
the plaintiff or her deceased-husband is not a recorded
khatedar of the land in dispute, in my view, unless a
revenue Court by way of a revenue suit declares under
Section 88 of the Act that the deceased-husband of the
plaintiff and after his death the plaintiff has 1/2 share or
any other share and thus, is a co-tenant alongwith
defendant-Shri Bhola in the land in dispute, the Civil
Court cannot cancel the sale deed only on the prayer
made by the plaintiff-appellant. It is well settled that a
suit for cancellation of a deed affecting certain property
can be brought by a person who cannot establish his title
to the property so long as such deed is not cancelled.
That would be so, in the case of a person, who was a
party to the deed or was otherwise bound by it in law. It
is also well settled that it is not necessary for a third
party to a deed i.e. which is neither a party thereto nor is
bound by it, to bring a suit for cancellation of the deed in
question. In such a case it is not necessary for the
plaintiff to get the sale deed cancelled in order to be
entitled to the relief claimed by him. In the present case
also, the plaintiff or her husband is not a party to the
sale deed in question, therefore, it is not necessary for
the plaintiff to get it cancelled as she or her husband is
not bound by it. If the substance of the pleadings and
relief claimed by the plaintiff-appellant is considered in a
right perspective, it is clear that the plaintiff by means of
the present suit is seeking a relief of declaration in her
favour that she is khatedar tenant/co-tenant of 1/2 share
of the land in dispute alongwith the defendant. The land
in dispute being an agricultural land, such declaration
can be given only by a revenue court under the(Downloaded on 06/01/2025 at 09:40:20 PM)
[2025:RJ-JD:462] (12 of 14) [CFA-215/2023]provisions of the Act. It cannot be disputed that a suit for
declaration regarding an agricultural land is to be filed
under Section 88 of the Act if a person claims to be
tenant or a co-tenant in the agricultural land in dispute.
Section 207 of the Act provides that all suits of the
nature specified in the third schedule shall be heard and
determined by a revenue court and no other court other
than a revenue court shall take cognizance of any such
suit. In Item 5 of the third schedule a suit for declaration
under Section 88 of the Act has been mentioned. I am
also of the view that if the revenue court passes a
decree for declaration in favour of the plaintiff to
the effect that she is khatedar-tenant or co-tenant
of 1/2 or any other share in the land in dispute,
that court is equally competent to grant a
consequential relief to the effect that the sale deed
in question is void and ineffective to the extent of
share of the plaintiff and it is not essential for the
plaintiff to file a separate suit thereafter in a civil
Court for getting the sale deed cancelled. I am also
of the view that if the revenue court declares the
plaintiff-co-tenant of the land in dispute, it is not
necessary for her to get the sale deed cancelled as that
would be automatically void and ineffective to the extent
of share of the plaintiff.”
22. In view of the settled position of law, this Court is of the
clear opinion that the main relief as prayed for in the suit in
question is for declaration and the relief for cancellation of sale
deed is a consequential/ancillary relief. Therefore, the ratio as laid
down in the cases of Pyare Lal, Rukmani and Kamli Devi
(supra) would govern the issue in question. This Court is therefore
of the view that the finding as recorded by learned Trial Court is
totally in consonance with law and does not deserve any
interference.
23. So far as the judgments relied upon by counsel for the
appellant are concerned, the same are clearly distinguishable on
basis of the reliefs as prayed for therein.
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24. Hasti Cement (supra) was a matter wherein no prayer for
declaration of khatedari rights was made. Therein, the declaration
sought was only qua the land in question to be of an un-
partitioned joint Hindu family property. Therein, the Court while
relying upon the judgment of Rukmani (supra) observed as
under:-
“22. The fact that even in a case of a void document a
relief of declaration in this regard has been sought, as
laid down in the case of Rukmani (supra) once the
declaration about status of Tenancy rights is granted, the
consequential relief to the effect that the instrument in
question is void and ineffective can always be granted by
the Revenue Court.”
25. Sunil Dhanpat Raj Bhandari (supra) was a matter wherein
a relief for cancellation of the document in question was prayed
for with the specific averments of fraud. Therein, no prayer of
declaration was even made. In those circumstances, the Court
observed that the document in question being voidable, although
pertaining to an agricultural land, the suit would be maintainable
before a Civil Court.
26. Amrit Lal (supra) was a matter wherein the Court
specifically observed that the nature of declaration as sought by
the plaintiffs was not governed by the provisions of Section 88 to
91 of the Act of 1955 and hence, did not attract the bar of Section
207 of the Act of 1955.
The said ratio would definitely not apply to the present
matter as herein, relief No.3 as prayed for specifically is governed
by Section 88 of the Act of 1955 and hence, the bar of Section
207 of the Act of 1955 would definitely apply. Further, as held in
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Kamli Devi (supra), if the plaintiffs approach the Revenue Court
seeking declaration of their khatedari rights in the land in question
and the same is decreed in their favour, as a natural corollary, the
sale deeds can be declared null and void to the extent of the share
of the plaintiffs even by the Revenue Court.
27. In the overall analysis and in view of the observations made
hereinabove, the order impugned does not deserve any
interference and the present appeal, hence stands dismissed.
28. Let the decree be drawn accordingly.
(REKHA BORANA),J
344-vij/praveen/-
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