IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL WRIT No. 74 of 1997 RATAN SINGH V/S STATE & ORS Mr. N.S. ACHARYA FOR Mr. B.L. PUROHIT for the appellant / petitioner Mr. OP MISHRA & Mr. BL BHATI, A.G.A. for the respondent Date of Order : 4.1.2008 HON'BLE SHRI N P GUPTA,J. ORDER ----- This petition has been filed, seeking to challenge the order of the learned Board of Revenue Annexure-4, dated 7.10.1996, whereby the petitioner's application, filed under O. 7 Rule 11, for dismissal of the suit, has been dismissed. The brief facts of the case are, that the respondents Keshar Singh and Daulat Singh, hereafter referred to as the plaintiffs, filed a suit, in the Court of Assistant Collector, Balotra, for declaration, and permanent injunction, pleading interalia, that in village Padru Tehsil Siwana, there existed agricultural land measuring 95 Bighas 2 biswas in Khasra No. 405/1, which was in the Khatedari of one Shri Kalyan Singh, out of which, Kalyan Singh in his own behalf, and as guardian of the minors, sold 53 bighas and 2 biswas of land on 19.11.68 by registered sale deed, to Kheem Raj and Mool Chand. These purchasers Kheem Raj and Mool Chand sold this very land to the plaintiffs by another sale deed dt. 22.9.1971, and delivered possession of the land, which continues in possession of the plaintiff. It was then pleaded, that as this year had rainfall, the defendant no.1 (present petitioner) came on the field, and claimed the land to be his, and called upon the plaintiffs to vacate, else he would sell it to somebody else, and take possession, which surprised the plaintiffs. According to the plaintiffs, thereupon the plaintiffs made enquiries, and found, that after death of Kalyan Singh, his sons Tej Singh and Bhanwar Singh, being defendants no. 2 and 3, claiming themselves to be major, sold this very land to defendant no.1, vide registered sale deed dt. 9.9.1971, and got it registered, while this land had already been sold by Kalyan Singh on his own behalf and on behalf of defendants no. 2 and 3, and possession had been delivered. Thus, the land could neither be sold, nor possession could be given, nor the defendant is in possession. It was also pleaded, that in view of the recitals in sale deed of 1968, the defendant no. 2 and 3 were of 14 and 5 years of age respectively, at the time of sale executed in favour of defendant no.1, therefore, also they could not sell the land. Then, in para-5 it is pleaded 2 that on the basis of the purchase, the defendant no.1 tried to get the land mutated in his favour, but after enquiry the Tehsildar found the defendant no.1 to be not in possession, and also found the land to be already sold by the Khatedar, therefore, on 29.11.1971, the Tehsildar dismissed the mutation application. Thereafter in the Revenue Campaign, finding Mohan Singh, the real Behnoi (brother in law gainer) of defendant no.1, who happened to come in the Revenue Campaign at Siwana, using the relation, and by concealing the earlier fact of rejection of mutation application, got the land mutated in favour of defendant no. 1 on 10.6.1989, which fact could not come to the knowledge of the plaintiff. Thus, it was pleaded in para-7, that the sale of the land by the defendants no. 2 and 3 is ex-facie void and ineffective, and does not affect the rights of the plaintiff. Likewise the mutation application had already been rejected once, still concealing that fact, and without getting any enquiry conducted, mutation has been sanctioned, which also is void, and does not affect the rights of the plaintiff. It was pleaded, that notwithstanding all this, since the defendant no.1 is claiming under that sale, and mutation, it has become necessary for the plaintiff to have his rights declared, and to seek injunction, restraining him from interfering in their possession, and plaintiff feels it necessary to have the mutation, and sale deed, declared void. Interalia with these averments, the suit has been filed claiming 3 declaration about the plaintiff being Khatedar of the land in question, and declaration has also been claimed for declaring the sale and mutation to be void, and ineffective, qua the plaintiff. Then, injunction has also been claimed, seeking restrain against the interference in possession of the plaintiff. In this suit the petitioner filed application under O. 7 Rule 11 C.P.C., contending interalia, that the plaintiff has “mainly pleaded” about incapacity of the defendants no. 2 and 3, on account of their minority, to execute the sale deed, and have “principally claimed” the relief of declaration of the sale deed to be ineffective, and void, which prayer can be granted only by the Civil Court, as the question of minority of defendants no. 2 and 3, at the time of execution of the sale deed, can be enquired into by the Civil Court, thus it was pleaded, that the Revenue Court has no jurisdiction to entertain the present suit, and the suit is required to be dismissed under Order 7 Rule 11, being barred by law. The learned trial court by the order dt. 31.1.1996 considered this application, and this very contention, as raised in the application was noticed, and it was found, that in the present case the sale deed in favour of the plaintiff has been registered on 23.9.1971, while the sale in favour of defendant no. 1 was registered on 17.11.1971. 4 Thus, it is clear that the registration of the sale deed dt. 17.11.1971 is subsequent, and the plaintiff has pleaded this sale deed to be ineffective against the plaintiff, therefore, being subsequent sale deed, and being void ab- initio, the application of the plaintiff is not required to be accepted, and the same was, therefore, dismissed. This order was assailed by the petitioners by way of filing revision before the learned Board of Revenue, and it was argued before the learned Board of Revenue, that the learned trial court has erred in treating the registered sale deed to be effective from 17.11.1971, and that, the Revenue Court has no jurisdiction to grant the prayer of the cancellation of the sale deed. The learned Board of Revenue, however found, that the title in the land transfers when the sale deed is registered. May be that the sale might have been executed on 9.9.1971, but then, it was registered on 17.11.1971, therefore, title transferred on 17.11.1971, and since before that date, the plaintiff had purchased the land on 22.2.1971 (sic 22.9.1971), and as such, the defendant being subsequent purchaser, the purchase by him is void, and ineffective, qua the plaintiff. In such circumstances, the plaintiff is entitled to maintain the suit for declaration, in the Revenue Court. Thus, the revision was dismissed, at admission stage. Assailing the impugned order, it was contended, that in the plaint, the plaintiff had made specific 5 averment about the sale deed being void, for reasons given in para 2, 3 and 7 of the plaint. Not only this, the plaintiff also sought specific relief about the sale deed being void, and ineffective, which relief could not be granted by the Revenue Court, and that being the principal relief, the suit was required to be dismissed under O. 7 Rule 11. Reliance was placed by the learned counsel on the judgment of this Court, reported in 1973 RLW-784. Learned counsel for the respondents, on the other hand submitted, that a bare reading of the plaint shows, that the plaintiff's case specifically was, that the land had already been sold by Khatedar Kalyan Singh, way back in 1968, vide registered sale deed, and the plaintiff had purchased from the purchasers from Kalyan Singh, in the year 1971, and once the land had already been sold in the year 1968 by the Khatedar, on his own behalf and on behalf of minor sons, sons had no right to sale the land after death of Kalyan Singh, again, to defendant no. 1, in the year 1971, and thus the sale is ex-facie void, and ineffective, against the plaintiff, and that, the application for mutation had already been dismissed once, which could not be clandestinely got allowed subsequently. It was contended, that notwithstanding this, the principal prayer of the plaintiff is not for declaration of the sale deed and mutation to be void, but those facts have been pleaded only for the purpose of claiming the principal 6 relief of declaration, of the plaintiff's Khatedari rights, and for claiming injunction against unlawful interference, at the hands of defendant no.1. It was submitted that it was only in order to lay a foundation for the plaintiff's right to have declared his Khatedari rights, that all necessary facts had to be disclosed, and in that sequence these facts have been pleaded, and relief of course has been claimed in the plaint, but that has been claimed by way of abandoned caution, and it was not necessary to claim that relief of declaration of sale deed and mutation to be void. Learned counsel relied upon judgment of this Court, in Jaswant Singh Vs. Board of Revenue, reported in 1984 RLR-791. Learned counsel for the petitioner, in rejoinder submitted that the judgment in the case of Jaswant Singh is distinguishable, inasmuch as, in that case there was no prayer claimed for cancellation of sale deed, or declaration of the sale deed, to be void, as against which, in the present case this is principal prayer claimed in the present suit. I have considered the submissions, and have gone through the impugned orders. Learned counsel for the parties have made available for perusal of the Court, the copy of the plaint, 7 and the copy of the application under O. 7 Rule 11 C.P.C. as well, at the request of the Court. So far as the reasonings given by the two learned courts below, about the title in property being stood transferred on the date of registration, and on that basis finding the plaintiff to be prior purchaser, being in September, 1971, while the defendant's sale deed being effective from 17.11.1971, the date of registration, is concerned, in my view, that finding is ex-facie contrary to law. In this regard I may refer to the provisions of Section 47 of the Registration Act, which reads as under:- “47.Time from which registered document operates-A registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.” A bare reading of the aforesaid section makes it clear, that the document on being registered, becomes operative from the date it would have operated if it were not required to be registered. Therefore, this part of the reasonings cannot be sustained, and has to be set aside. But then that is not the end of the matter, inasmuch as, the plaintiff's claim is based on the fact, that Khatedar Kalyan Singh had transferred his right, in his own capacity, and in his capacity as guardian, way back 8 in 1968, and delivered possession, and it is from those purchasers, that the plaintiff had purchased in 1971. Thus, when the Khatedar had already transferred the rights, no right survived, capable of being transferred by the defendants no. 2 and 3, minor sons, after death of Kalyan Singh, and as such the sale is void. Thus, if considered from that stand point, obviously, the first transfer of the land is by Kalyan Singh, in the year 1968, and the transfer in favour of defendant no.1 is by defendants no. 2 and 3, the sons of Kalyan Singh in the year 1971. Therefore, obviously, the defendant no.1 is a subsequent purchaser, if considered from the stand point of dates of transfer. So far as the present controversy, viz. requirement of the dismissal of the suit, under O. 7 Rule 11 is concerned, a look at the application shows, that the whole stand of the defendant petitioner is, that according to the petitioner the “principal averment” of the plaintiff is, about incapacity of the defendants no. 2 and 3, to execute the sale deed on account of their minority, and “principal relief” claimed is, for declaration of the sale deed to be void, and ineffective, which prayer cannot be granted by the Revenue Court. True it is, that if these were the principal pleas, and these were the principal reliefs claimed, obviously Revenue Court would not have jurisdiction to entertain the suit. But then, in the case in hand, the things are otherwise, inasmuch as, the 9 principal plea of the plaintiff is, about Kalyan singh having sold the land on his own behalf, and on behalf of his minor sons defendants no. 2 and 3, as their guardian, by registered sale deed way back in the year 1968, and delivered possession, and after death of Kalyan Singh, that very land having been sold by the two defendants, minor sons, to the defendant no. 1, which they could not, in absence of title, so also in view of their minority, and in view of the property having been sold in the year 1968, the subsequent sale by defendants no. 2 and 3 has been claimed to be ab-initio void, and ineffective, against the plaintiff, and since the defendant no.1 claims to interfere with the possession of the plaintiffs, and claims title on the land, on the basis of sale deed by defendants no. 2 and 3, the plaintiffs have sought a declaration of their Khatedari right, and injunction against the defendant, restraining him from interfering in their possession. Thus, the “principal plea” as appearing from reading of the plaint is, claiming of the plaintiffs to be Khatedar of the land in question, having purchased in 1971 from a purchaser, who had purchased from the then Khatedar in the year 1968, and injunction against unlawful interference in their possession, and enjoyment of their Khatedari rights. Even from the tenor of the plaint it is clear, that the pleading about incapacity of the defendants no. 2 and 3 to execute the sale deed, on account of their minority, does not appear to be the principal plea, nor the relief of 10 declaration of sale deed to be void, and ineffective, appear, to be any “principal relief”, rather as submitted by the learned counsel for the respondent plaintiffs, that this is an unnecessary relief claimed, which is by way of abandoned caution. It is maintained by the learned counsel for the respondent, that the principal relief claimed is for declaration of the Khatedari rights of the plaintiff, and injunction against the unlawful interference in the plaintiff's possession. So far as the judgment in Jaswant Singh's case is concerned, it is a Division Bench judgment. In that case the suit had been filed for recovery of possession of agricultural land, and for declaration of plaintiff's Khatedari rights, and for damages, wherein the question was raised about jurisdiction of the Revenue Court, and it was held, that the question of jurisdiction ought to be decided on the basis of the allegations made in the plaint. Then, certain judgments of this Court in Chandan Mal Vs. Dawar, reported in 1954 RLW-184, Sukhlal Vs. Devilal reported in AIR 1954 Raj.-170, Ratanal Vs. Gram Panchayat, Agolai reported in 1977 RLW-143, Shyam Kumar Vs. Budh Singh reported in 1977 RLW-131, and judgment of Hon'ble the Supreme Court in Abdul Waheed Khan Vs. Bhawani reported in 1966 SC-1718, were recapitulated. Then, a Full Bench judgment of Allahabad High Court in Ram Awalamb Vs. Jata Shanker, reported in AIR 1969 All-526, was considered, 11 where it was held by the Full Bench, that the cases have to be classified under two sub heads, on the basis of reliefs claimed, or ostensibly claimed in the suit; one being, where several reliefs closely connected with each other can be claimed on the basis of the cause of action set forth in the plaint, it has to be examined, which of them is the main relief, and which others are ancillary reliefs, and if upon a consideration of facts constituting the cause of action, the main relief is such, which can be granted by the civil court, the suit will be cognizable in the civil court, which will proceed to grant the ancillary reliefs also. On the other hand, if the main relief is specifically cognizable by a revenue court only, but ancillary reliefs may be such, as could be granted by the civil court, the matter would be cognizable only by a revenue court. Then, it was also held by the Full Bench of the Allahabad High Court, that the pith and substance of the allegations made in the plaint, constituting the cause of action, must be scrutinized, in order to determine, whether or not, if on the same cause of action any adequate or satisfactory alternative remedy could be available to the plaintiff in the revenue court. If the answer to the scrutiny be in the affirmative, then the suit brought in the civil court must fail, regardless of the consideration, that in respect of the reliefs actually claimed, the suit was, on the face of it, cognizable by a civil court. Then, after following various other judgments of this Court, it was held by the 12 Division Bench, that the suit was exclusively triable by the competent revenue court. Of course, it does not appear from the reading of the judgment, that relief of declaration of sale deed to be void, or its cancellation, was claimed. However, it was found, that void document can be ignored, and prayer for cancellation of such deed is unnecessary for the plaintiff. On the other hand learned counsel for the petitioner cited 1973 RLW-784. Learned counsel cited it from the Text Book Commentary, which he was not allowed to site. However, by way of abandoned caution, I called the book and find, that volume ends at page-748, and there is no judgment at page-784. However, from index I find, that there is a judgment at page-674, being Jagan Singh Vs. Chotey Lal, of this Court, and find, that in that judgment, it has been held in para-10 as under:- “10. Now, in the present case the cause of action is no doubt the factum of sale alleged to be void-ab-initio and the real and substantial relief is for possession of the land and the dwelling house standing thereon. That is the real contest between the parties and that is also the substance of the suit. This relief, it cannot be gainsaid can be granted only by revenue court and not by the civil court. In such circumstances the revenue court after coming to the conclusion that the document was completely void and ineffectual to pass the title to the transferee can grant a decree for possession in favour of the plaintiff. In this view of the matter I have no doubt that the present suit is triable by revenue court.” Thus, on the other hand, this judgment rather 13 supports the case of the plaintiff respondent, then supporting the case of the petitioner defendant. Thus, in my view, though not agreeing with the reasons given by the learned trial court, or the learned Board of Revenue, and while setting aside the reasonings given by them, for the above reasons, the rejection of the application under Order 7 Rule 11, is upheld. The writ petition is, therefore, dismissed. Parties are left to bear their own costs. Learned trial court is now directed to decide the suit most expeditiously. ( N P GUPTA ),J. /Sushil/ 14