IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR J U D G M E N T S.B. Civil Second Appeal No.75/1992 1. Dilbag Singh son of Shri Sardar Punjab Singh by caste Sikh, Resident of Patlia, District Alwar 1.1 Gurdeep Singh, aged about 37 years, S/o Late Shri Dilbag Singh 1.2 Kuljeet Singh, aged about 30 years, S/o Late Shri Dilbag Singh 1.3 Lakhbir Singh, aged about 20 years, S/o Late Shri Dilbag Singh 1.4 Smt. Satvindra, aged about 36 years, D/o Late Shri Dilbag Singh 1.5 Smt. Sudarshan, aged about 24 years, D/o late Shri Dilbag Singh 1.6 Smt. Amarjeet, aged about 22 years, D/o late Shri Dilbag Singh All resident of Village and post Patlia, Kishangarhbas, District Alwar. 2. Lallu son of Mangu, by caste Jat, Resident of Akbarpur, District Alwar 3. Shamsher son of Mangu, by caste Jat, Resident of Akbarpur, District Alwar 4. Balwant son of Mangu, by caste Jat, Resident of Akbarpur, District Alwar 5. Gyan Chand, son of Nimmu Ram, by caste Khatri, Resident of Khairthal, District Alwar 6. Patram, son of Chunna, by caste Jat, Resident of Patlia, District Alwar .....Appellants Defendants Versus 1. Jai Ram S/o Shri Ganga Sahai, by caste Jat, R/o Village Patlia, Tehsil Kishangarhbas, District Alwar .....Respondent Plaintiff 2. Manohar Lal Son of Shri Girdhari Lal by caste Khatri, Resident of Village Patlia, District Alwar 3. Laxmandas, S/o Shri Girdhari Lal, by caste Khatri, R/o Village Patlia, District Alwar .....Proforma Respondents Date of Judgment :: 11th January, 2008 HON'BLE MR. JUSTICE R.M. LODHA Mr. Ashok Gaur with Ms. Sweety Mishra for the appellants ORAL JUDGMENT (PER R.M. LODHA,J.) This second appeal was admitted on 24.4.1992 on the following substantial questions of law: “(i) Whether the Civil Court had jurisdiction to entertain the suit after deletion of prayer of specific performance by respondent plaintiff during pendency of the suit? (ii) Whether the declaration of possession and khatedar tenant in relation to an agriculture land can be decided by the Civil Court and not by Revenue Court? (iii) Whether the Revenue Court is estopped to declare the sale deed for agriculture land to be null & void?” 2. Before I answer the aforesaid substantial questions of law, the facts may be noticed in brief first. 3. The agricultural land comprising of Khasra No. 594, 615 (min), 918, 3, 47, 48 (present khasra nos. 3, 4, 36, 37, 864, 865, 941, 942, 943, 944, 1306 and 1307) ad-measuring 16 Bigha 2 Biswa situate at village Patlia, Tehsil Kishangarh Bas was allotted by the Rehabilitation Department to one Ganesh Das. After the death of Ganesh Das, his son Manohar Lal and Laxman Das (respondents no. 7 and 8 – defendants no. 7 and 8) became owner of the said land and came into possession. Manohar Lal (defendant No. 7) who was karta of the family, agreed to sell the said land to Dilbag Singh – defendant no. 1 on 30.1.1968. Manohar Lal also appointed Dilbag Singh as his general power of attorney on 17.9.1973. Dilbag Singh is said to have agreed to sell the half of the afore- mentioned land to the plaintiff on 19.6.1968 for a consideration of Rs. 7500/-. A written agreement and also a receipt to this effect was executed on 19.6.1968. The plaintiff set up the case in the plaint that since 19.6.1968 he has been in possession of the half portion of the aforesaid land that was agreed to be sold to him by Dilbag Singh and entry to this effect has also been made in the revenue record as well as settlement record. Manohar Lal is said to have removed Dilbag Singh as his power of attorney on 4.7.1975. A notice to that effect was published in the newspaper and written intimation was also sent to Dilbag Singh. Despite the fact that Dilbag Singh ceased to be power of attorney of Manohar Lal, on 17.7.1975 Dilbag Singh sold the aforesaid land to defendants no. 2 to 6 present appellants no. 2 to 6). The sale deed dated 17.7.175 was registered on 29.7.1975. Jai Ram (plaintiff), thus, in his suit prayed for a decree of specific performance of the contract dated 19.6.1968 and cancellation of the sale deed dated 17.7.1975 registered on 29.7.1975 by the defendant no. 1 in favour of defendants no. 2 to 6. The plaintiff also prayed for consequential relief of injunction against the defendants restraining them from interfering with his possession. 4. The defendants no. 1, 4 and 5 filed their written statement on 8.11.1975 while defendants no. 2 and 3 filed written statement on 29.9.1976. In the written statement, they denied any agreement by Dilbag Singh in favour of the plaintiff. They also denied revocation of power of attorney by Manohar Lal. They denied plaintiff's possession and also set up the case that they were in lawful possession of the land and that defendant no.1 has, by following the legal process, sold the land to defendants no. 2 to 6. 5. It is pertinent to notice here that initially the proceedings for ex-parte were drawn against the defendant no. 6, which was later-on set-aside and the defendant no. 6 filed a separate written statement on 14.4.1977. 6. During the pendency of the suit, defendants no. 7 and 8 executed sale deed in favour of the plaintiff as per the agreement dated 19.6.1968. Consequently, the plaintiff amended the plaint by deleting the prayer of specific performance of contract and possession. 7. The trial court by its order dated 6.2.1979 retained the following issues: "1. आया ूितवादȣ Ǒदल बाग िसंह ने बतौर मुǔÉ तयार मनोहर लाल अलोटȣ आराजी खसरा नà बर 4,865,37,941,943 एवं 1603 कुल Ǒकता 6 रकबा आठ बीघा मुÛ दजा[ मद नà बर 2 अजȸदावा वाके माम पतिलयां को वादȣ को तारȣख 19.6.68 को 7500/- Ǿपये ूाÜ त कर ǒबबȧ करने का मुहायदा Ǒकया और इस बाबत इकरारनामा एवं रसीद तहरȣर तकमील बहक वादȣ कȧ? 2. आया वादȣ ने ूितवादȣ Ǒदलबाग िसंह से उÈ त आराजी मुतदा Ǒकया का तारȣख 16.6.68 को कÞ जा ूाÜ त Ǒकया और तभी से वह इस आराजी पर लगातार काǒबज है? 3. आया Ǒदल बाग िसंह ने Ǒदनांक 15.7.75 को जो बैनामा आराजी मुतदा Ǒकया का ूितवादȣ नà बर 2 लगायत 6 के हक मɅ तकमील करा कर पंजीबƨ Ǒदनांक 29.7.75 को कराया, वह फजȸ एवं नुमायशी होने से वादȣ के ǒवǾƨ बाितल व बेअसर है? 4. दादरसी ?" 8. The trial court also recorded in its order that no further issue was pressed. 9. The plaintiff examined himself (PW-1), Prabhati (PW-2), Amichand (PW-3), Lachchi (PW- 4), Pratap (PW-5), Dasuram (PW-6), Daulatram (PW-7), Patram (PW-8) and Om Prakash (PW-9). The defendants examined Manohar Lal (DW-1), Laxman Das (DW-2), Tulanand (DW-3), Ramesh (DW- 4), Patram (DW-5), Shamsher (DW-6), Lallu (DW- 7), Dilbag Singh (DW-8), Jaswant (DW-9), Kripal Singh (DW-10) and Chhitar (DW-11). The contesting parties also produced documentary evidence before the trial court. 10. The trial court by its judgment and decree dated 27.2.1988 decreed the plaintiff's suit against defendants no. 1 to 6 by making a declaration that the sale deed registered on 26.9.1977 was null, void and ineffective against the plaintiff insofar as the portion purchased by him was concerned. The trial court further declared that defendants no.1 to 6, therefore, have not acquired any right of any nature whatsoever under the sale deed. 11. The judgment and decree dated 27.2.1988 passed by the trial court was carried in appeal. The Additional District Judge, Kishangarh Bas, Alwar did not find any infirmity in the judgment and decree of the trial court and affirmed the same by his judgment and decree dated 25.1.2992. It is from the concurrent judgment and decree that the present second appeal has arisen. As noticed above, the second appeal has been admitted on the three questions referred to in the beginning of this judgment. 12. As a matter of fact, none of the three questions of law which have been framed at the time of admission of the second appeal was in issue before the two courts below. In three separate written statements filed by different defendants, the lack of jurisdiction of civil court in deciding the controversy was not raised. In fact no issue concerning the lack of competence of civil court in entertaining the suit was framed by the trial court. The objection of want of jurisdiction of the civil court does not seem to have been raised by the defendants either before the trial court or the first appellate court during the course of arguments either. In the circumstances, I fail to find any reason in framing the three substantial questions of law, noticed above, while admitting the appeal when the aspects concerning these questions were neither raised in the written statement/s nor agitated during the course of arguments before the trial court or the appellate court. 13. Besides, the prayer concerning declaration of the sale deed registered on 26.9.1977 executed by defendant no.1 in favour of defendants no. 2 to 6 could only be considered and granted by the civil court and not the revenue court. Merely because the sale deed pertain to the agricultural land, the cancellation of the instrument like sale deed falls within the exclusive domain of civil court and that exclusive domain is not taken away by Rajasthan Tenancy Act or any other statute. Section 31 of the Specific Relief Act, 1963 readwith Section 9 of the Code of Civil Procedure, 1908 empowers a Civil Court to declare a written instrument void and ineffective. Seen thus, even after the deletion of prayer of specific performance of the contract, the suit for the remaining reliefs, remained exclusively triable by the civil court. I, therefore, have no hesitation in holding that Civil Court had jurisdiction to entertain the suit after the deletion of prayer of specific performance of the plaintiff. The substantial question of law no. 1 is answered accordingly. 14. It needs no argument that the declaration concerning tenancy of agricultural land lies within the jurisdiction of the revenue court. However, the question concerning tenancy in the agricultural land was neither in issue before the courts below nor was it raised by the defendants no. 1 to 6 in the written statement/s. As a matter of fact, no declaration concerning the khatedari tenancy has been given by the courts below. The prayer regarding possession was not pressed by the plaintiff after the sale deed was executed by defendants no. 7 and 8 in his favour during the pendency of the suit and, according to him, he continued to be in possession of the land agreed to be sold to him pursuant to the agreement of sale dated 19.6.1968. The academic issue without any factual foundation by way of substantial question of law no.2 has been framed which does not arise from the concurrent judgment and decree granted by the courts below in favour of the plaintiff. The substantial question of law (no. 2) is answered accordingly. 15. The third substantial question of law, again, has been framed when it was not in issue before either of the courts below. When the suit was filed before the civil court inter- alia for cancellation of sale deed registered on 26.9.1977 in favour of the defendants no. 2 to 6, obviously such relief as already noticed above was in exclusive domain of the civil court and the civil court has granted the decree. The Revenue Court is not possessed with the jurisdiction to deal with the relief of cancellation of sale deed even if such sale deed pertains to agricultural land. The substantial question of law (no.3) is, therefore, answered accordingly. 16. As a result of the aforesaid discussion, this second appeal has to be dismissed and is dismissed. Since nobody has appeared on behalf of the respondent no. 1 (plaintiff), I dismiss the appeal with no order as to costs. R.M. LODHA,J. DK/-