- (1.) The present petition is directed against the order dated 25.11.2004 passed by the learned Addl. Civil Judge (JD), No. 1 (South), Kota (hereinafter referred to as 'the trial court') in Civil Suit No. 356/2000, whereby the trial court has allowed the application of the respondents (original-defendants) filed under Order 7 Rule 11 rejecting the plaint of the petitioner-original plaintiff. The short facts giving rise to the present petition are that the petitioner-plaintiff has filed the suit before the trial court seeking cancellation of the sale deed dated 11.6.1984 executed in favour of the defendants, by one Smt. Mangibai in respect of suit property and seeking possession of the said property. It was averred in the plaint inter alia that the petitioner-plaintiff happened to be daughter of Shri Narain and Smt. Kesharbai. After the death of Kesharbai and her father Narain, the petitioner-plaintiff alone was the legal heir of her father Shri Narain. According to the petitioner-plaintiff, the possession of the plaintiff in respect of the suit land was sought to be disturbed by the said Mangibai and others in March, 1992 and at that time she came to know for the first time that said Mangibai in collusion with one Shri Pratap and the officers of revenue departments had got her name mutated in the revenue records and therefore the plaintiff had filed a suit in the revenue court against the said Mangibai and Shri Pratap under sections 88, 89 and 188 of the Rajasthan Tenancy Act, which suit was pending before the revenue court. According to plaintiff, during the pendency of the said suit, she came to know that one sale deed dated 11.6.1984 was also executed in favour of Shri Pratap by the said Mangibai. Since the said Mangibai and the said Pratap expired, the petitioner filed the suit against the heirs of said Pratap seeking cancellation of said sale deed and seeking possession of the suit property from the said defendants. The said suit was resisted by the present respondents-defendants by filing the written statement. The respondents thereafter submitted an application under Order VII Rule 11 of CPC seeking rejection of the plaint on the ground that the court had no jurisdiction to entertain the suit, hence, the plaint was liable to be rejected under Order VII Rule 11(d) of CPC. The said application came to be allowed by the trial court by the impugned order dated 25.4.2004. Being aggrieved by the said order, the petitioner-plaintiff has invoked the jurisdiction of this court under Article 227 of the Constitution of India.
(2.) It has been submitted by learned counsel Mr. Ravi Kasliwal for the petitioner that the trial court could not have dismissed the suit of the plaintiff under Order VII Rule 11 as there was no bar to file the suit in the civil court seeking relief for cancellation of the sale deed, under the Rajasthan Tenancy Act and only the civil court could have granted such relief. Relying upon the decision in the case of Saleem Bhai and others v. State of Maharashtra and others, 2003 AIR(SC) 759, Mr. Kasliwal has submitted that application under Order VII Rule 11(d) could be decided by the court only on the basis of the averments made in the plaint and allegations made in the written statements would be wholly irrelevant. He has also relied upon the judgment of Rajasthan High Court in the case of Amir Mohammad v. Gafoor Ahmed Khan and others,1987 1 RLR 51, to summit that the suit for cancellation of sale deed could lie in the civil court only.
(3.) Per contra, the learned counsel Mr. Shailesh Prakash Sharma for the respondents-defendants, however, has vehemently submitted that the suit filed by the petitioner-plaintiff was a frivolous suit inasmuch as having lost in the revenue court for the relief of declaration of her khatedari rights, the present suit was filed by the plaintiff seeking cancellation of the sale deed executed in favour of the father of the defendants by the deceased Mangibai. According to the learned counsel for the respondents-defendants, the substantive relief sought in the present suit is for the declaration of khatedari rights of the petitioner-plaintiff, which relief could be granted only by the revenue court under section 88 of the Rajasthan Tenancy Act and therefore the suit was barred under section 207 of the said Act. He has relied upon the judgments of this court in the case of Temple of Thakur Shri Mathurdassji, Chhota Bhandar v. Shri Kanhaiyalal and ors., 2008 2 RajLW 1390, Hardev deceased represented by his LRs. v. Goru and ors, 1988 1 RLR 609 and Ashok Chauhan v. Smt. Amri Bai and Anr.,2010 2 DNJ 776, in support of his submission. According to Mr. Sharma, the order passed by the trial court being in consonance with the settled legal position, this court should not interfere with the same.;