Atul Kumar Jain, J. - (1.)A Civil Suit 26/2011 (Batul Bano & Ors. v. Abdul Hamid & Ors.) is said to be pending in the court of Additional Civil Judge (Junior Division) No. 2, Sikar. In that Suit an application under Order 7 Rule 11(d) C.P.C. was filed by the petitioners/defendants and that application was dismissed by the impugned order dated 05.02.2013 by that court which has been appealed against by the said defendants.
(2.)I have heard both the parties and perused the documents also. In the application Order 7 Rule 11(d) C.P.C. it was mentioned by the appellants that the suit filed by the plaintiffs was for cancellation of a Will and the counter -claim filed by the defendants was for declaration of their Khatedari Rights. It was argued by the defendants in the court below that main prayer before the court below in the matter relates to the declaration of Khatedari Rights of the parties and prayer for declaration of Will as null and void was ancillary relief only and so as per Section 207 of Rajasthan Tenancy Act 1955 and looking to the provisions of third schedule given under the Act, the suit was triable exclusively by the Revenue Court only. Appellants have argued that their application under Order 7 Rule 11(d) filed in the trial court has wrongly been dismissed by that court. Appellants rely upon the following ruling: -
"2012 (3) WLC (Raj.) 673 Vijay Singh & Another v. Buddha & Others In this case it was held that where main relief is triable by the Revenue Court, the Revenue Court will have exclusive jurisdiction to hear that matter and the ancillary civil reliefs would be immaterial. It was further held in that case that in a suit for declaration of Khatedari Rights, an ancillary relief even of cancellation of illegal sale of agricultural land will be exclusively triable by Revenue Court which can also hold that sale was void and inoperative."

On the other hand, following rulings appear to favour the arguments of the respondents: -

"(1) AIR 1979 Raj.(Full Bench) 142 Badri Lal & Anr. v. Moda & Ors. In this case it was held by the Full Bench of this court that if a portion of claim made in the plaint was triable by a civil court and the other portion was triable by a Revenue Court, then in the circumstances Civil Court had rightly taken cognizance of the suit though it will refer the issue regarding determination of the Tenancy Rights to the Revenue Court, if at all it was found necessary to do so. It was further held in this case that for the purpose of seeing whether the suit is exclusively triable by a Revenue Court and the Civil Court has no jurisdiction to try the same, averments in the plaint are to be carefully looked into. All the allegations made in the plaint should be taken into consideration and not the reliefs alone claimed in the plaint (or counter -claim) for the purpose of determining the question of jurisdiction. The substance of the plaint (or counter -claim) provides a good guide to find out the true nature of the prayer of the parties."

(3.)IT was further held that the court must be guided by the substance of the plaint and not merely by its form.