- (1.) THIS review petition has been filed by the plaintiff � petitioner Smt. Ganga for review and recall of the order dated 23rd March, 2006 passed by a co-ordinate Bench of this Court dismissing her first appeal No.556/2004 � Smt. Ganga vs. Girdhari & ors.
(2.) THE plaintiff-appellant had filed a suit for declaration and perpetual injunction against the respondent-defendants Girdhari & ors. that the suit land in question was purchased by the plaintiffs on 22.04.1972 from the father of the defendants Nos. 1 to 3 namely Girdhari, Shanker Lal both sons of Shri Heerji Nayak and Smt. Badam wife of Shri Heerji Nayak and such land was purchased for consideration and the plaintiff had invested thousands of rupees for development of land. In the year 1982, the defendants cut some of the trees standing on the land of the plaintiff. The criminal proceedings were initiated against them and ultimately a compromise between the plaintiff's son and defendant No.1 was executed, admitting the ownership of the plaintiff on the land stated. In the said suit for declaration and injunction, the defendants filed an application under Order 7 Rule 11 CPC for dismissal of the suit at the threshold on the anvil of Order 7 Rule 11 CPC inter alia on the ground that sale by 'Nayak' � a person belonging to SC/ST category was hit by Section 42 of the Rajasthan Tenancy Act and, therefore, such sale being void, the suit for declaration and injunction was not maintainable. Learned trial court dismissed the suit on defendants' application under Order 7 Rule 11 CPC vide order dated 18.08.2004 and first appeal filed by the plaintiff against that order being SB Civil First Appeal No.566/04 � Smt. Ganga vs. Girdhari & ors. also came to be dismissed by the learned Single Judge of this Court on 23rd March, 2006. Learned counsel for the review-petitioner-plaintiff Mr. Om Mehta submitted that from the statutory notifications produced along with the review petition 27th July, 1977 and 27th August, 1993, it was clear that the community of 'Nayak' was in the category of 'Other Backwar Class' at S.No.106 in the notification dated 27th August, 1993 and from the notification dated 27th July, 1977 from part (XIII), it also transpires that at S.No.57 "Thori, Nayak" was also included in the Scheduled Caste in Rajasthan, whereas at S.No.10 of part (XIII) of Scheduled Tribe in Rajasthan various categories like "Naikda, Nayaka, Choliwala Nayaka, Kapadia Nayaka, Mota Nayak, Nana Nayak" were included in the category of Scheduled Tribe. He, therefore, submitted that since the defendants were "Raghuvanshi Nayaks", as would appear from a marriage invitation card produced by him along with the review petition, the caste of the defendants would be in the category of 'Other Backward Class" and, therefore, the transaction of sale in the year 1972 when they were "Raghuvanshy Nayaks" only, could not be hit by Section 42 of the Act, which would be applicable only if the seller belonged to SC/ST category. Be that as it may, he submitted that it was a matter of evidence to decide this question of fact and, therefore, the suit could not be thrown out at the threshold under Order 7 Rule 11 CPC. He submitted that a serious error of law has thus occurred resulting in serious miscarriage of justice in the dismissal of the suit under Order 7 Rule 11 CPC by the learned trial court and the same being upheld by this Court. Hence, the order under review deserves a review and recall. On the other hand, Mr. B.K. Vyas, learned counsel submitted that the allotment of the land in question to the defendants was on the basis of Scheduled Caste category only and even today they continued to belong to "Scheduled Caste Category" and he also submitted that the notification issued by the State Government in the year 1993 and 1977 as relied upon by learned counsel for the review petitioner are of no avail since in the year 1977 at the time of the sale in question, the "Nayaks" were admittedly belonging to Scheduled Caste category and consequently the court below was justified in rejecting the suit under Order 7 Rule 11 CPC so also this Court in dismissing the first appeal of the plaintiff.
(3.) HAVING heard learned counsels, this Court is of the opinion that while categorising all the castes in Scheduled Caste/Scheduled Tribe and Other Backward Classes is within the domain of legislature and it is not for this Court to classify any particular caste in particular catogory, but definitely the documents produced on record by the review petitioner prima facie indicate that the Nayaks caste is divided into different sub-castes also and some of them have been kept in Scheduled Caste Category and some of them in Scheduled Tribe Category and some of them in Other Backward Classes Category from time to time. Thus, it definitely becomes a matter of evidence as to what kind of caste or sub-caste, the defendants family belonged, while determining the validity of the sale deed in question and to decide the question whether the sale was hit by Section 42 of the Rajasthan Tenancy Act or not ? Once it becomes the question of fact warranting to be decided on the basis of the evidence, the applicability of Order 7 Rule 11 CPC is ruled out. The dismissal of the suit under Order 7 Rule 11 CPC before evidence is led on the basis of the plaint's averments only is to throw out the frivolous suits requiring no trial. The valuable property rights and the suit for cancellation of sale deed or declaration of title without ascertaining the validity of the question of fact for applicability of the law in question, cannot be done under Order 7 Rule 11 CPC. Therefore, once the evidence is prima facie brought before this Court, even though in review petition, that the caste / sub-castes of Nayak was divisible in three different categories and the sub-castes to which the defendants belonged as falling under "Other Backward Classes" category and sale may not have attracted Section 42 of the Rajasthan Tenancy Act, the question of applying Order 7 Rule 11 CPC is ruled out and in the face of this evidence, prima facie, the question of fact deserved to be decided on the basis of evidence upon necessary proof only and, therefore, the suit could not be dismissed under Order 7 Rule 11 CPC. A serious miscarriage of justice might result, if the suit is given a burial under Order 7 Rule 11 CPC and evidence is not allowed to be brought on record and plaintiff be allowed to prove that the defendants belonged to a category of persons whose transactions could not be hit by Section 42 of the Rajasthan Tenancy Act. Consequently, this review petition deserves to be accepted and the same is accordingly allowed and the judgment of the co-ordinate Bench of this Court dated 23rd March, 2006 dismissing the first appeal No.566/2004 Smt. Ganga vs. Girdhari & ors. is recalled and the first appeal is restored to its original number and position, which may be listed before appropriate Bench in due course. No costs. ;