JAIN, J. - (1.) THIS is defendant's first appeal arising out of the judgment and decree passed by learned District Judge, Merta dated 17. 8. 87 whereby he has decreed the suit filed by the plaintiff.
(2.) THE brief facts of the case are that the respondent Amra filed a suit for cancellation of sale-deed dated 27. 6. 73 and for declaration and possession of the suit land. According to the plaintiff-respondent, originally the property stood in the name of one Kana father of Bheru and after the death of Kana in Samvat Year 2002, the property came in the hands of Bheru as ancestral property. It was alleged that the plaintiff was adopted by Bhura by a registered adoption-deed dated 31. 7. 58. It was alleged that sale-deed executed by his adoptive father Bheru @ Bhura with regard to Khasra no. 655 and 655/1 situated at Mithri village, Tehsil Nawa was ineffective and not binding on plaintiff as he gets right in the ancestral property. It was alleged that the sale was not for legal necessity of the family and he prayed for cancellation of sale-deed and possession of the disputed land from the appellants. During the pendency of appeal Bheru died on 11. 9. 77 and his L. Rs. were brought on record. The appellants-defendants Narainsingh, Laxman Singh and Bhanwarlal denied the allegations that the property is ancestral one. However, they have admitted the fact of adoption as well as sale-deed executed in their favour. They have pleaded that property in the hands of Bhura as a sole surviving coparcener. It was his separate property and had full right over the land in dispute. They further pleaded that they are bonafide purchasers without notice and with consideration. So, the sale-deed cannot be cancelled after such a long time when they have spent huge amount in the improvement of the property. It was also alleged by the defendants that the civil court has no jurisdiction to try the suit as the matter relates to agricultural land and only khatedari rights have been transferred by the sale-deed and not the ownership right. Thus, suit is triable by Revenue Court. On the pleadings of the parties, the learned trial court framed as many as four issues, there English translation is as under: - 1. Whether the defendant no. l is the sole Khatedar tenant of the land in dispute has right to sale? (D) 2. Whether defendants nos. l to 4 are bonafide purchasers for value without any notice cannot be dispossessed from the land in dispute? (D) 3. Whether after the death of defendant no. l's father in Samvat Year 2002, Defendant no. l became sole surviving coparcener and all properties vests in him cannot be divested by the adoption of plaintiff on 31. 7. 58? (D) 4. Relief. The appellants-plaintiff in support of their case have examined five witnesses and the respondents have examined three witnesses. The plaintiff filed adoption-deed and a copy of sale-deed. The defendants in support of their case filed copy of Jamabandy. The learned trial court after considering the material on record decreed the suit on 17. 8. 76. Hence, the defendant has filed this first appeal. Before I proceed it is to be noted that a preliminary issue was framed by the learned court below on 11. 4. 75, which reads as under: - "whether this Court has jurisdiction to try the suit or not"?
(3.) THE learned court below after hearing counsel for both the parties and discussing the various provisions of Rajasthan Tenancy Act, 1955 and the authorities held that the Civil Court has jurisdiction to try the suit vide its order dt. 18. 4. 75. Therefore, it is not open to the appellant to agitate this point of jurisdiction of the court. As it has become final between the parties by the order dt. 18. 4. 75 which was not challenged in any higher court. Now, I take up the case issue-wise, finding recorded by the lower court. The burden of all the issues have been put on the appellant-defendant. The contention of the learned counsel for the appellant Mr. M. D. Purohit is that Section 41 of the Rajasthan Tenancy Act, 1955 recognises the right of sale and gift by a Khatedar. Section 41 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act) reads as under : - "the interest of a Khatedar tenant shall be transferable, otherwise than by way of sub-lease, subject to conditions specified in S. 42 and 43. " ;