- (1.) THE plaintiff has filed this appeal u/o 43 Rule 1 (a) C. P. C. against the order of Shri Radheshyam Gupta, District Judge, Sirohi dated 19. 7. 95 in Civil Suit No. 20/94 whereby the application filed by the defendants respondents 5 to 11 u/o 7 Rule 11 (d) C. P. C. was allowed.
(2.) THE material facts to be noticed for the disposal of this appeal may shortly be stated as follows. THE plaintiff-appellants filed a suit against the defendants for seeking specific performance of the contract dated 25. 7. 96 and also for permanent injunction with the following averments. THE plaintiffs took the land in dispute described in para 4 of the plaint on lease from defendants 1 to 4 on 1. 11. 84 at a monthly rent of Rs. 100/ -. Subsequently the above defendants at the request of the plaintiff agreed to sell the above land to the latter for a sum of Rs. 60,000/ -. THE defendants obtained a part of the consideration Rs. 5,000/- on 25. 7. 86. Simultaneously with the execution of the agreement for sale, the plaintiff were put into possession indifferent of the above land. THE remaining consideration was to be paid at the time of the registration of the sale deed. THE defendants further agreed to execute the document and get it registered upto 25. 7. 94. THE plaintiffs further averred that on account of some necessity a sum of Rs. 2,000/- was also taken by the defendants from the plaintiff on 11. 8. 88. An entry of this transaction was recorded on the back of the document. THE plaintiffs have been using the above land even before the document was executed and they are running a hotel. After the execution of the agreement some residential portion was also constructed. THE plaintiff averred that they were ready and willing to perform their part of the contract and offered Rs. 3,000/- to the defendants but the defendants, on account of escalation in the land price, showed unwillingness to perform their contractual obligations and did not do so upto 25. 7. 94. THE plaintiffs, therefore, served the regi- stered notice to the defendants 1 to 4 asking the latter to perform their of the contract. THE notice reached the defendants on 19. 7. 94 but the latter did not think it proper to reply to the same. THE defendants on the contrary wrote to the plaintiffs to vacate the land before 21. 7. 94 otherwise they will be vacated forcibly. THE plaintiff further alleged that on 22. 7. 94 defendant no. 10 as representative of the other defendants approached the former and informed that Narayan Singh s/o Manak Singh has purchased the land comprised in khasra no. 194 (new) from Panni w/o deceased Nopa. Narayan Singh has expired and defendants 5 to 9 are the legal representatives of the said Narayan Singh. THE plaintiffs alleged that defendant no. 10, who was the Police Inspector of Mt. Abu, being an influential person, can create problem for the plaintiffs. THE plaintiffs, therefore, also prayed for permanent injunction restraining the defendants from creating any nuisance or obstruction in their peaceful possession of the above land. THE plaintiffs in para 21 (C) prayed for the following rules: ...[VERNACULAR TEXT OMITTED]... In paras (a) and (b) the plaintiffs also prayed for specific performance of the contract. On 4. 2. 95 defendants 5 to 11 filed an application u/o 7 Rule 11 (d) alleging that since the land in question is an agricultural land, the plaintiffs were not entitled to file the present suit as the exclusive jurisdiction for entertaining such suit lies in a Revenue Court. The plaintiffs could have filed a suit for permanent injunction u/ss 188 and 256 of the Rajasthan Tenancy Act in a Revenue Court of competent jurisdiction. Similarly the plaintiffs could only pray for the relief of injunction restraining the defendants from taking proceedings for conversion of the land u/s 41 (b) of the Specific Relief Act, but the suit for that purpose will also lie in a Revenue Court. The defendants, therefore, prayed that the suit of the plaintiff be returned under the above provisions of the Code of Civil Procedure. The plaintiffs filed reply contesting the above application by stating that the main relief prayed for by the plaintiff is the specific performance of the contract dated 25. 7. 86 and the second relief in respect of permanent injunction is a consequential relief. The Civil Court is, therefore, competent to try the above suit. The learned District Judge by the impugned order allowed the application filed by the defendants. The learned District Judge discussed the case law cited by the parties and observed that the question of jurisdiction has to be determined on the basis of the averments and allegations made in the plaint. In para 23 of the order, the learned District Judge observed that the averments made in paras 2 & 3 of the plaint cannot be treated to be proved and they are not beyond dispute. He was of the opinion that unless it is judicially adjudicated that the land in question was of defendants 1 to 4, the suit cannot be proceeded. The reliefs sought by the plaintiffs did not seek the relief of declaration of the sale made by Panni to Narayan Singh as null and void. The fact, according to the learned District Judge, casts shadow over the ownership right of the defendants 1 to 4. The relief to restrain the defendants from taking proceedings for converting the land into abadi land can also not be entertained by a Civil Court. In para 28 of the impugned order, the lear- ned District Judge examined the conditions of the agreement in question and opined that from a perusal of the above conditions it appears that the agreement did not inspire confidence. According to him the rent paid by the plaintiffs was too inadequate and that the period allowed to the defendants to get the sale deed executed and registered in quite unreasonable. In short, the learned District Judge prima facie found the above agreement unreasonable and this also persuaded him to doubt the genuineness of the agreement. He, therefore, passed an order to return the plaint u/o 7 Rule 10 for presentation to a court of competent jurisdiction.
(3.) I have heard learned counsel for the appellants and respondents. Learned counsel for the appellants has made a very scatching attackh on the order passed by the learned District Judge. He has contended that the learned District Judge while passing the above order lost sight of the fundamental principles of law as regards the determination of the question of jurisdiction. He had absolu- tely no business to make an adverse comment on the terms and conditions of the agreement in question particularly when the defendants have not even filed the written statement. He has not given any specific opinion whether the plaintiffs can maintain their suit for specific performance of the above agreement though it is related to the agricultural land. The fundamental principle that has crystalized by legal precedent is that the ouster of jurisdiction is to be inferred strictly. In this connection he relied on Durgadan vs. Devidan (1) and Badri Lal and Ors vs. Moda and Ors. (2) Learned counsel for the appellants has contended that the learned District Judge passed the impugned order as if he was deciding the original suit on merits. What is the case of the defendants or what are the differences they are setting up will be known only when the written statement is filed by the defendants. According to him the plaintiffs by making necessary averments in the plaint alleged that the defendants 1 to 4 executed the agreement to sell the suit land to the plaintiffs on 25. 7. 86. Since the defendants failed to perform their part of contract, the cause of action accrued to the plaintiff to seek the relief of specific performance by alleging that the plaintiffs were always ready and willing to perform their part of contract. The second relief was only consequential. The other relief with regard to injunction was only ancillary or consequential to the main relief of specific performance of the contract. ;