1 S.B. CIVIL REVISION PETITION NO. 48/2007. Narayanlal Vs. Nandlal & Ors. Date of order : 20th February 2008 HON'BLE MR. DINESH MAHESHWARI, J. Mr. Sudhir Saruparia, for the petitioner. Mr. B.N. Kalla, for the non-petitioners. .... BY THE COURT: Having heard learned counsel for the parties and having perused the material placed on record with reference to the law applicable to case, this Court is clearly of the opinion that this revision petition deserves to be dismissed with costs. An application moved under Order 7 Rule 11 of the Code of Civil Procedure (CPC) by the petitioner-defendant in a suit for perpetual injunction, essentially on the submissions that for the relief prayed for the suit was triable by the Revenue Court, came to be rejected by the learned trial court by the impugned order dated 15.12.2006. After observing on the contents of the plaint that the suit was essentially in relation to the claim towards infringement of easement, the learned trial court observed that the questions raised could be decided after framing of legal issues at the relevant stage of the proceedings but it did not appear that the plaint was required to be rejected under Order 7 Rule 11 CPC. 2 Assailing the order aforesaid, it has been contended by the learned counsel for the petitioner with reference to Section 207 of the Rajasthan Tenancy Act read with Item No. 23(C) in its Third Schedule that the suit for perpetual injunction is exclusively triable by the Revenue Court and the learned trial court has erred in not rejecting the plaint outright. Learned counsel has referred to the plaint averments and submitted that there is no pleading in relation to easement and the suit is simply for the relief of perpetual injunction in relation to agricultural land and the same is not triable by the Civil Court. Learned counsel has referred to a decision of this Court in the case of State of Rajsathan Vs. Kanaram : 1998 DNJ (Raj.) 616. Learned counsel for the non-petitioners has duly supported the order impugned. After examining the plaint averments, this Court is unable to find if the learned trial court has acted illegally or with material irregularity in making observations that the plaint cannot be rejected at this stage; and the aspects sought to be raised in the application are to be considered after framing of legal issues. A comprehension of the plaint averments makes it clear that complaint of the plaintiffs is of the defendant obstructing flow of water to their agricultural land by closing down a kuchcha water course passing through the northern and western boundaries of his agricultural land at Ararji No. 387. Even though the word `easement' has not been used as such in the plaint, the substance 3 of the matter discernible from the cause of action as stated and the prayer as made in the plaint cannot be ignored. It cannot be said that the suit is barred by law by any statement made in the plaint. In the face of the averments as taken by the plaintiffs, the questions posed in the application under Order 7 Rule 11 CPC could be decided only after framing of issues and the learned trial court has not committed any illegality in observing so. The decision of this Court in Kana Ram's case (supra) has no application to the present case. Therein, the suit for injunction was filed in respect of the constructions existing on the land in dispute with the allegation that the defendants wanted to remove such structures. The petitioner before this Court challenged the maintainability of the suit, inter alia, on the submissions that an order under Section 22 of the Rajasthan Colonisation Act had been passed against the plaintiff that was to be complied with; and the plaintiff did not challenge the same. It was contended on behalf of the plaintiff that the land in question was being used as abadi land and, therefore, the suit was maintainable in the civil court. The matter was before this Court in challenge to the order passed on the application for temporary injunction filed in said suit. This Court observed in that fact situation that, admittedly, the land in question was an agricultural land and also noticed that previously the plaintiff faced proceedings under the Colonisation Act and he was dispossessed too but then, he made 4 encroachment over again and then filed the suit. This Court found that the orders passed by the courts below could not be sustained. In the aforesaid case, this Court was not concerned with an application under Order 7 Rule 11 CPC. Another aspect of the matter in this case remains that the impugned order was passed on 15.12.2006 rejecting the application under Order 7 Rule 11 CPC and thereafter, the matter was placed for filing of written statement of defendant-petitioner and was adjournment for the purpose on 23.01.2007, 29.01.2007, 31.01.2007, 01.02.2007, 02.02.2007, 03.02.2007 and 05.02.2007. Thereafter, on 08.02.2007, the petitioner-defendant Narain Lal did file his written statement. This revision petition was filed by the petitioner-defendant only on 19.02.2007, i.e., after filing of the written statement before the trial court. It is noticed that the same objection regarding maintainability of the suit in the civil court has distinctly been set forth in the written statement, as stated particularly in paragraphs 5 & 6 of the additional pleas. There is no mention in the present petition of the fact that such written statement had already been filed, even before filing of this revision petition. The petitioner having already raised the question by filing written statement even before filing the present revision petition, was required first of all to have informed this Court of the fact of his having filed the written statement. With omission to state such 5 facts, the petitioner persuaded this Court to issue notices in the matter on 23.02.2007 and further proceedings before the trial court were ordered to be stayed. For a ground already taken in the written statement and observation already made in the order dated 15.12.2006, the matter would of course be considered after framing of relevant issues; and, therefore, this Court would not like to make any final comment on the objection sought to be raised by the petitioner. Suffice it to say for the present purpose, that the plaint could not be rejected under Order 7 Rule 11 CPC on the submission so made, particularly in view of the averments taken in the plaint. In any case, the challenge to order dated 15.12.2006, for all practical purposes deserves to be held infructuous after filing of written statement by the petitioner. For the reasons aforesaid, this revision petition is required to be dismissed with costs. The petition is, accordingly, dismissed with costs quantified as Rs. 3,300/- payable by the petitioner to plaintiffs. Record be returned immediately. (DINESH MAHESHWARI), J. bj/ Mohan