- (1.) This is an appeal preferred by original plaintiff Smt. Ganga against the judgment and decree dated 18th August 2004 passed by learned Addl. District Judge (Fast Track) No.2, Bhilwara in Civil Original Suit No. 62/2004 (Smt. Ganga Vs. Girdhari & Ors.) dismissing the suit of the plaintiff for the relief of declaration and perpetual injunction against the respondent-defendants while deciding an application moved by defendant No.1 & 2 under Order 7 Rule 11 read with Sec. 151 CPC.
(2.) Relevant facts, in brief, are as follows: (i) On 04.06.2004, the appellant-plaintiff filed the suit stating inter-alia that on 22.04.1972 she had purchased the land in question from the father of defendants No.1 to 3 through a registered sale-deed after paying full consideration and since then she remained in continuous possession of the land. It was further stated that after purchase of the land, she by investing thousands of rupees got the land developed for agricultural use, planted trees of various types and fenced it etc. The plaintiff averred that in the year 1982 the defendants cut the trees standing on the land of her ownership for which criminal proceedings were initiated against them and the matter was ultimately compromised and defendant No.1 executed an agreement in favour of plaintiffs son and while admitting the ownership of the plaintiff on the land stated that plaintiff was entitled for the compensation of the land used for the road and as such since 1972 i.e. for last 32 years the land in question was in her sole ownership and the defendants were in know of this fact as she was in possession, use and occupation of the land in question even then the defendant No.1 & 2 alongwith their friends on 31.05.2004 entered into the land of the plaintiff and ploughed the land through tractor for which also a case was registered at Police Station Gangapur. (ii) Alongwith the suit, the plaintiff also moved an application for temporary injunction for restraining the defendants from interfering in the possession of the plaintiff and maintaining status quo. (iii) The defendants did not file any reply to the suit filed by the plaintiff however filed separate replies to the application for temporary injunction and thereby they denied their knowledge about execution of sale-deed dated 22.04.1972 in favour of plaintiff and according to them it was a forged one. They denied the execution of sale-deed in lieu of consideration amount of Rs.2,000 and further stated that even if the plaintiff proved the said sale deed in her favour then the same being contrary to the provisions of Sec.42 of the Rajasthan Tenancy Act, 1955 and Sec.23 of the Indian Contract Act it was a nullity. About entering into a compromise in the year 1982, it was stated that the police personnel got signed the same under duress. (iv) The defendants No.1 & 2 filed an application under Order 7 Rule 11 CPC stating therein that the plaintiff belongs to 'Mali caste while the defendants belong to 'Nayak. They further stated that they being members of scheduled caste and the plaintiff being not, as per the provisions of Sec.42 of the Rajasthan Tenancy Act, 1955 and Sec.23 of the Indian Contract Act the sale being void, the plaintiff has no cause of action so the suit was liable to be dismissed. (v) The plaintiff replied to the application moved by the defendants and stated that the father of defendants Heera had sold the land to plaintiff after getting full consideration amount of the land through a registered sale deed on 22.04.1972 and since then she was in its possession and ownership. She also stated that in the year 1982 defendant No.1 had executed an agreement in her favour and the Sections referred to be not applicable in the present case. She further stated that there was no hindrance in filing the written statement to the plaint and the application moved was not maintainable because the relief claimed in the suit is in respect of declaring the sale deed by defendant No.1 & 2 null and void in favour of defendant No.4 as she has been in possession of the land for a period of 32 years. (vi) The learned trial Court, on the basis of the rival contentions of parties decided the application moved under Order 7 Rule 11 CPC and while accepting the same dismissed the suit of the plaintiff. Heard learned counsel for the parties.
(3.) The learned counsel for the appellant challenging the judgment and decree passed by the trial Court has contended that the defendants had stated their caste to be Nayak but whether caste 'Nayak is a scheduled caste or a scheduled tribe can be decided only after filing written statement and only on proving sufficiently the same the suit of the plaintiff could be dismissed. It was further contended that the State Govt. has issued a circular whereby the castes 'Mali and 'Nayak both have been included in backward class category and likewise the caste 'Nayak has been shown in the lists of scheduled caste and scheduled tribes and the caste 'Nayak has been shown by the names of Nayka, Mota Nayak, Nanna Nayak etc. and it being a disputed question as to in which schedule the defendants fall, without giving opportunity to lead evidence to the parties, the judgment & decree impugned is liable to be quashed. In the last, he contended that the judgment and decree deserves to be set aside and the case is liable to be remanded for decision afresh on merit after filing of written statement by the defendants.;