JAINENDRA KUMAR RANKA,J. - (1.) This instant revision petition is directed against order dt 24.8.2016 passed by Additional District Judge No.20, Jaipur Metropolitan, HQ at Chomu, in Civil Suit no.28/2015 whereby the application under Order 7, Rule 11 CPC filed by the defendant/petitioners has been dismissed.
(2.) The brief facts noticed for disposal of the instant petition is that the plaintiff Bhairav Grah Nirman Sahkari Samiti filed a suit for specific performance of contract alleging that the defendant/petitioners along with their mother had agreed to sell their ?rd share in khasra no. 564 (1.26 hectare) situated in village Bainad, Daulatpura, @ Rs.55,000/- per bigha and after receiving Rs.50,000/- as advance money they executed an agreement to sell on 3.11.1991. It was averred that the balance sale consideration was to be paid by mid June 1993 and full payment was made to the defendant/petitioners and there mother Smt. Dakha Devi by the plaintiff society. Thereafter without disclosing this fact the defendant/petitioners and their mother sold ?rd share to Mitra Grah Nirman Sahakari Samiti @ Rs.1 lakh per bigha and with a total consideration of Rs.3,80,000/- and received full payment and also executed an agreement dated 5.1.1994. When Jagan Singh, President of Mitra Grah Nirman Sahkari Samiti came to take possession, at that time hot altercations took place in between the representative of the plaintiff and President, Mitra Grah Nirman Sahkari Samiti Ltd., however, since Mitra Grah Nirman Sahkari Samiti was not willing to develop the said land and on account of disputes they agreed to sell the entire land holding vide agreement dated 30.5.1998 and the plaintiff paid the entire amount to Mitra Grah Nirman Sahkari Samiti and took possession. Thus, the plaintiff acquired/purchased entire khasra no.564 admeasuring 1.26 hectare. Since the plaintiff purchased the entire share and having made full payment, repeated requests were made on behalf of the plaintiff to the defendant/petitioners to get the sale deed registered but the defendant/petitioners were deferring the matter saying that the registration would be got done shortly and taking into consideration that the defendant/petitioners are delaying registration of the sale-deed, accordingly a suit for specific performance of contract was filed.
(3.) An application under Order 7, Rule 11 CPC was filed by the defendant/petitioners before the trial court bringing on record the fact that the suit was barred under Section 42 of the Rajasthan Tenancy Act as it was claimed that the defendant nos.1 and 2 and their mother are "Meena" by caste which being admittedly Scheduled Tribe community, whereas the alleged purchasers of the disputed land are societies which do not come under the purview of ST category and as such the alleged agreements to sell entered into by the societies with the defendant/petitioners being khatedars are void as per mandate of Section 42 of the Rajasthan Tenancy Act and thus, the alleged agreements being void are not enforceable in law and the suit is barred by law and prayed that the suit be rejected. However, the trial court vide impugned order has held that it is a mixed question of fact and law and merely mentioning "Meena" is not sufficient and taking into consideration the averments made in the plaint the trial court held that it is not sufficient to reject the suit and there is no bar in investigating further even under section 42 of the Rajasthan Tenancy Act and all facts could be taken into consideration after leading evidence, and thus rejected the application.;