This revision petition under Section 115 CPC is directed against the order dated 4/5/2015 passed by the Senior Civil Judge, Bilara, District Jodhpur,
whereby, the application filed by the petitioner under Order VII Rule 11 CPC read with Section 151 CPC has been rejected.
The respondent No.1 filed a suit for cancellation of sale deed dated 17/4/1991, declaration of ownership and possession against the petitioners and two
others with the averments that in agricultural land ad measuring 240 Bigha 9 Biswa situated at village Jhoorli, Tehsil Bilara respondent no.4 Satya Dev,
his father had ¼ share and after partition, the land ad measuring 63 Bigha 16 Biswa came to his share. The land in question is ancestral joint Hindu
family property and plaintiff is co-parcener with defendant no.4 and has right in the land since birth. The land in question without any reason, necessity
and basis was transferred in favour of defendant no.1 (petitioner No.1) by registered sale deed dated 16/4/1991 and got registered with the Sub
Registrar, Bilara, which transfer was null and void against the interest of plaintiff and he is not bound by the said sale deed. It was claimed that the
plaintiff and defendant no.4 has ½ share in the property in question and to the extent the land has been sold beyond his right, he was not bound by
the said transfer.
It was further claimed that under Section 22 of the Hindu Succession Act, 1956 (‘the Act’) he had right of preemption. Submissions were also
made that at the time of transfer the plaintiff was minor and was unaware of the transfer. The crux of the plaint as well as relief claimed therein reads
as under:-
“10- ;g gS fd okn dk vk/kkj oknh ds bl dFku ij vk/kkfjr gS fd fookfnr d`f""k Hkwfe oknh o izfroknh la[;k 4 pkj ds la;qDr fgUnw vfoHkDr ifjokj dh
vfoHkDr lEifr gSA izfroknh la[;k pkj us fcuk fdlh dkj.k] vk/kkj o vko’;drk ds mDr Hkwfe dk foØ; fnuakd 16- 4-91 dks izfroknh la[;k 1 ,d ds uke ls
izfroknh la[;k 2 nks ds tfj;s fd;k gS tks oknh ds vk/ks gd fgLls vf/kdkj dh gn rd voS/k] izHkkoghu o 'kwU; gS dh ? kks""k.kk izfroknh la[;k 1 ,d] nks 2 o
rhu 3 oknh o izfroknh dh mDr la;qDr d`f""k Hkwfe ds fy, vtuch gSA o fgUnw mrjkf/kdkjh vf/kfu;e dh /kkjk 22 ds vuqlkj oknh dks mDr Hkwfe dks
[kjhn dk ofj;rk ls izFke vf/kdkj gksus ls oknh izfroknhx.k ds fo:) Hkwfe ij izos’k jksdus o [ksrh djus ls gsrw LFkkbZ fu""ks/kkKk izkIr djus dk
vf/kdkjh gksus ds dFkuksa ij oknh dk ;g okn okLrs ?kks""k.kk izkIrh dCtk vkjkth 23 ch?kk 16 chLok o izkIrh LFkkbZ fu""ks/kkKk vk/kkfjr gSA
15- ;g gS fd izys[k e; lwph bl okn i= ds lkFk izLrqr gSA vr% oknh dk uez fuosnu gS fd oknh dk e; okn O;; Lohdkj fd;k tkdj oknh ds gd esa o
izfroknhx.k ds fo:) fuEu fMØh ikfjr dh tkos %& ¼d½ ;g gS fd foØ; ys[k fnuakd 16-4-91 oknh ds vk/ks fgLls dh lEifr
dh gn rd oknh ds fo:) izHkko ghu o 'kwU; ?kksf""kr fd;k tkosA ¼[k½ ;g gS fd fookfnr Hkwfe la;qDr fgUnw ifjokj dk vfoHkDr Hkwfe gksuk ?
kksf""kr dj izfroknh la[;k 1 ,d ls pkj dks foØ; ys[k fnukad 16-4-91 ds vk/kkj ij izos’k djus ls LFkkbZ fu""ks/kkKk ds tfj;s jksdk tkosaA
 ¼x½ ;g gS fd fookfnr Hkwfe esa ls [kljk la[;k 14] 17@3 o 17@4 jdck 23 ch?kk 16 chLok Hkwfe dk dCtk izfroknh
la[;k rhu ls oknh dks fnyk;k tkosaA**
The suit was filed on 3/11/1998 which was initially decreed on 1/2/2010, on 22/3/2013 the appeal filed by the petitioners was accepted and the matter
was remanded back to the trial court, wherein, evidence was led by the plaintiff and matter was fixed for evidence of the defendants on 21/11/2014.
Whereafter, on 12/1/2015 the present application was filed under Order VII Rule 11 CPC inter alia with the averments that as admittedly the subject
matter of the suit was an agricultural land and in the relief declaration has been sought regarding the land being a joint Hindu family property,
permanent injunction and possession and no relief has been sought for cancellation of sale deed, the suit was barred under the provisions of Section
207 of the Rajasthan Tenancy Act, 1955 (‘the Tenancy Act’), and till such time the plaintiff seeks declaration of his tenancy rights, he cannot
maintain the present suit and, therefore, the plaint filed by him was liable to be rejected.
The application was contested by the plaintiff mainly on the ground that the matter was pending for evidence of the defendants and the application has
been filed only for protracting the litigation and, therefore, the same was liable to be rejected. The trial court after hearing the parties came to the
conclusion that the plaint has to be read as a whole and the same cannot be read in disjunction. Further, issue no.9 regarding the jurisdiction of the
revenue court has already been framed and as the suit has been filed based on right regarding the suit property being ancestral, it cannot be said that
the suit was barred by law and consequently dismissed the application.
It was vehemently submitted by learned counsel for the petitioners that the suit in question was barred by law on account of bar created by Section
207 of the Tenancy Act, as admittedly the land in question is agricultural land and the plaintiff has claimed the sale deed as void and consequently the
relief as claimed in the plaint can only be granted by the revenue court and the trial court was not justified in dismissing the application.
Further submissions were made that the trial court was obsessed with the fact that earlier applications filed by another defendant under Section 11 of
the Rajasthan Court Fees and Suit Valuation Act, 1961 read with Order VII Rule 11 CPC, was rejected, and another application filed by said
defendant under Order VII Rule 11 CPC read with Order I Rule 9 CPC was also rejected, which cannot be a reason for rejection of the present
application and, therefore, the order impugned deserves to be quashed and set aside.
Reliance was placed on Prem Singh & Ors. vs. Birbal & Ors. : (2006) 5 SCC 353, Rooda Ram vs. Rattu Ram : 1972 RLW 532, Sangram Singh vs.
Roop Lal & Ors. : 1977 WLN (UC) 454, Jaswant Singh vs. Board of Revenue & Ors. : 1984 RLR 791, Bhanwar Singh & Anr. vs. Mst. Rammo &
Ors. : 1998 WLC (Raj.) 392, Jagdish Narain Pareek vs. Kamlesh Jain & Ors. : 2017 (3) DNJ (Raj.) 1022, Mohan Lal vs. Ratna : AIR 1971 (Raj.)
164, Rukmani vs. Bhola & Ors. : 2012 (4)RLW 3050 (Raj.), Badri Lal vs. Moda : 1979 RRD (F.B.) 624 and Smt. Bismillah vs. Ganeshwar Prasad :
AIR 1990 SC 540.
Learned counsel for the respondent plaintiff vehemently opposed the submissions. It was submitted that there is no justification in the petitioners’
seeking rejection of the plaint at a stage when already the plaintiff has led his evidence, the trial court has already framed the issue in this regard and
when the suit is pending for about 19 years now. It was submitted that the issue regarding maintainability of the suit is well settled by various
pronouncements by this Court as well as Hon’ble Supreme Court, wherein the present suit will fall in the category of cases which would be
maintainable before the civil court and the relief as claimed in the plaint cannot be granted by the revenue court and, therefore, it cannot be said that
the suit is barred by Section 207 of the Tenancy Act and as such the application filed by the petitioners was rightly rejected by the trial court.
It was submitted that as the respondent plaintiff has claimed cancellation of sale deed executed by his father without legal necessity, the suit was
triable by civil court and as such the revision petition  deserves to be dismissed. Reliance was placed on Shyam Kumar & Ors. vs. Budh Singh &
Ors. : AIR 1977 Rajasthan 238, Bhopal Singh vs. Bhagwat Singh : AIR 1979 Rajasthan 173, Gurucharan Singh vs. Mst. Gurdayal Kaur : AIR 1982
Rajasthan 91, Sukhpal Singh vs. State of Rajasthan : 1998 (2) RLW (Raj.) 1261, Ram Prakash Gupta vs. Rajiv Kumar & Ors. : 2008 (1) RLW 776,
Mahaveer Prasad & Ors. vs. Smt. Kishni Devi & Ors. : 2012 (2) DNJ (Raj.) 633, Smt. Dev Bai vs. Addl. Civil Judge No.1, Kota : 2012 (3) DNJ
1569 and Modu Ram vs. Board of Revenue : 2015 (3) WLN 284.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record. As already noticed
hereinbefore, the plaintiff with the specific averment that the property in question was undivided ancestral property and same has been transferred by
his father without any reason, basis and necessity, which was illegal, claimed the transfer as null and void against the interest of the plaintiff. In the
relief clause, declaration was sought regarding sale deed being null and void along with other reliefs.
Section 31 of the Specific Relief Act deals with cancellation of instruments, which reads as under:
“31. When cancellation may be ordered â€" (1) Any person against whom a written instrument is void or voidable, and who has reasonable
apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in
its discretion, so adjudge it and order it to be delivered up and cancelled.
(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the
officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact
of its cancellation.â€
The above provision provides that where an instrument is void or voidable against any person, he may sue to have it adjudged void or voidable and the
court may in its discretion so adjudge it and order it to be delivered up and cancelled. The provision clearly provides for seeking a declaration regarding
a document being void or voidable. The issue which arises in the present case essentially pertains to the jurisdiction of the civil court to deal with the
suits pertaining to cancellation of an instrument pertaining to agricultural land on account of the fact that under the provisions of Section 207 of the
Tenancy Act, the suits and applications which could be heard and determined by a revenue court are barred before other courts.
The provisions of Section 207 of the Tenancy Act reads as under:
“207. Suits and applications cognizable by revenue court onlyâ€" (1) All suits and application of the nature specified in the Third Schedule shall be
heard and determined by a revenue court.
(2) No court other than a revenue court shall take cognizance of any such suit or application or of any suit or application based on a cause of action in
respect of which any relief could be obtained by means of any such suit or application.
Explanation - If the cause of action is one in respect of which relief might be granted by the revenue court, it is immaterial that the relief asked for
from the civil court is greater than, or additional to, or is not identical with, that which the revenue court have granted.â€
The issue as noticed hereinbefore is not new and has been arising before the courts at regular intervals which has led to large numbers of judgments
having been delivered on the subject matter and the trial courts are dealing with the issue based on one judgment or the other as per the requirement
and the determination so made has been repeatedly questioned by way of filing revision petitions before this Court. The relevant judgments cited by
petitioners which have implication on the subject matter may be taken note of.
In the case of Rooda Ram (supra), it was laid down as under:
“10. In para-2 of the plaint it is averred that the field in question belonged to Kashi Ram who was the grand father of the plaintiff Rattu Ram and
father of defendant Ghisa Ram. In para 3 it is mentioned that after the death of the father and grand- father of the plaintiff there was mutation in
favour of the plaintiff in revenue papers. Then it is averred that the plaintiff was in possession of the field and defendant No. 1 had no right over it.
Thereafter it was averred that in order to deprive the plaintiff of his rights in the field the defendant Ghisa Ram had made a sale deed in favour of the
other defendants and it was consequently void and of no effect against the plaintiff. In the result, prayer for cancellation of the sale deed was made. I
am not here concerned with the maintainability of the suit on other grounds and this discussion is limited only to the question of competence of the civil
court. A proper analysis of the averments in the plaint yields the following postulates:
(1) that the plaintiff is the Khatedar of the field in dispute;
(2) defendant Ghisa Ram had no right whatsoever over this field;
(3) Ghisa Ram could not have made any sale of the field;
(4) the sale made by Ghisa Ram in favour of the other defendants was in consequence null & void.
It will be thus evident that the real cause of action is to whom does the field in question belong. If it belonged to the plaintiff as he claimed, then the
other reliefs that he might be claiming would follow as a matter of course. Therefore, the crux of the matter is that the plaintiff is seeking vindication
of his own Khatedari rights in the field by the present suit and the connected or collateral points that would arise for consideration would be about the
validity of the sale made by Ghisa Ram. As observed by Modi, J. and as it appears to be the tenor of S.207 one has to look to the substance of the
matter. The relief that may be desired from a civil court need not be identical with the relief that could be granted or claimed from a revenue court, but
that is not a point of substance for determining the question as to whether the suit is triable exclusively by a revenue court or not. The burden of the
section is the nature of the cause of action. I am, therefore, satisfied that the suit is of the nature triable by a revenue court and is covered squarely by
the provisions of Sec. 207 Tenancy Act. The courts below were, therefore, in error in holding that the civil court had jurisdiction to try the suit.â€
In the case of Sangram Singh (supra), wherein, the suit was filed allegedly claiming the suit land to be ancestral which was in joint possession of the
plaintiff and his father and was not sold by the father for legal necessity or for payment of any antecedent debt, it was laid down as under:
“7. I shall therefore first examine the question whether there is any force in the argument that it was necessary for the plaintiff to ask for the relief
of cancellation of the sale deed in question. It is settled law, and will also appear from Mewa's case cited by Mr. Bhandari that the relief of
cancellation is necessary in the case of a voidable document and not where the document is void ab initio. The question therefore is whether sale deed
Ex. 2 was voidable as has been argued by Mr. Bhandari or whether it was void ab initio.
8. As has been stated, it is the concurrent finding of fact of both the courts below that the impugned sale was not made for legal necessity, or for the
payment of any antecedent debt. This finding has not been challenged before me. It is also not disputed that the plaintiff was not a party to the sale. It
must therefore be held that the sale was void, and I think it will be sufficient for me to refer here Article 269 of Mulla's Hindu Law, thirteenth edition.
Reference may also be made to Lachhman Prasad and Ors. v. Sarnam Singh and Ors., in which it has been held that an alienation of joint family
property by the father, which is not made for discharging any antecedent debt or for family necessity, is void in toto. So when the sale in question was
void ab initio, it was not necessary for the plaintiff to ask for the relief of cancellation of sale-deed Ex 2. Moreover, Bhooralal defendant No. 1, the
vendor was alive at the time of the suit, and as the plaintiff was not a party to the sale deed, it cannot be said that he could sue for the cancellation of
the sale-deed altogether. I am supported in this view by decisions in Radhu Ram v. Mohan Singh and Ors., Dwarka Prasad v. Mst. Ram Debi and
Ors., Kheta Chinna Eswarareddi and Ors. v. Khukkala Reddigary Venkatachellamma Reddi and Goni Mohomed and Ors. v. Meeru Khan and Ors.
9. More over, a perusal of the plaint shows that the plaintiff specifically pleaded in parapraph 6, 7, 8 and 14 that the sale of the suit lands by Bhooralal
defendant No. 1 was void. It cannot therefore be said that it was necessary for the plaintiff to ask for the relief of cancellation of the sale-deed.
10. There is thus no force in the argument that the sale, was voidable and that the suit was triable by a civil court because the relief of cancellation of
the sale-deed could be granted only by that court.â€
A Division Bench in the case of Jaswant Singh (supra) after considering almost all the judgments available till then, laid down as under:
“Thus upon a consideration of the several cases of this Court on the point, it clearly emerges that if the suit was filed by the plaintiff for possession
treating the deed as wholly void or a nullity, then a prayer for cancellation of the deed was unnecessary and was not required to be made by the
plaintiff, who could ignore the void document. In such cases there was no unsurmountable difficulty in the way of the plaintiff in seeking relief by way
of declaration of tenancy rights and claiming possession before a competent revenue court. The present case is not one in which the alleged sale deed
was admitted to have been executed by the plaintiff or her predecessor-in-interest or that she sought to avoid the same on the ground that she was
made to execute the deed by fraud or misrepresentation. The plaintiff claimed in the suits that sale deeds were not executed by her. In such
circumstances the sale deeds were alleged to be void and not voidable and the same could be ignored by the plaintiff.â€
In the case of Jagdish Narain Pareek (supra), the Court again after noticing various judgments and analyzing the plaint held as under:
“10. In the case at hand, a bare perusal of the plaint filed by the Plaintiff- Respondent No.1 would show that the plaintiff has claimed three reliefs
viz. (1) declaration of his title in the disputed agricultural land admeasuring 13 Bigha, (ii) grant of a perpetual injunction prohibiting any interference in
the use and enjoyment of his rights in the said land and (iii) correction of entries in land records. All these reliefs have been enumerated in Schedule
III of the Rajasthan Tenancy Act, 1955- particularly in Paragraphs 5, 23C and 35 of the said Schedule. Therefore, in my considered opinion, the suit is
barred by section 207 of the Rajasthan Tenancy Act, 1955 read with Schedule III thereof and is liable to be rejected under Order 7 Rule 11 CPC.
11. The learned court below misdirected it as much as the learned court below stressed on the question of existence or otherwise of the evidence that
would entitle the Plaintiff for the relief claimed by him instead of the relief claimed in the plaint which was germane for deciding the application under
Order 7 Rule 11 CPC.â€
The Division Bench in the case of Bhanwar Singh inter alia laid down as under:
“4. Undisputedly, the subject matter involved in the suit is agricultural land. It cannot be disputed also that a suit to declare tenancy right as
Khatedar to the extent of 1/3rd and partition of the agricultural holdings would lie in Revenue Court. The reliefs claimed by the plaintiff in the revenue
suit could be granted only by the said Court and no other Court. It may also be stated here that the defendants had set up the gift deed in their defence
with regard to which the plaintiff has prayed for no relief nor it was necessary for the plaintiff to get the alleged gift deed declared null and void. The
reliefs claimed in the suit, primarily, are the decisive factors as to whether the suit was triable by a Revenue Court or not. If the main relief can be
granted only by the Revenue Court then the suit shall be triable by the Revenue Court only. In the instant case, the real and substantial relief is
declaration of tenancy right as well as possession of agricultural holdings in which the plaintiff was claiming 1/3rd share. If any gift deed was executed
by Mst. Gulkandi of the whole of the land, that effected the rights of the plaintiff in the land in question. The question of validity of the gift deed can
also be examined as an ancillary matter by the Revenue Court when it is necessary for the purpose of deciding a suit based on a cause of action,
which is triable by a Revenue Court. In our confirmed view, the suit for declaration of Khatedari right and for possession of agricultural land is triable
only by a Revenue Court and a suit in Revenue Court is the only appropriate remedy.â€
In the case of Rukmani (supra), a coordinate bench of this Court inter alia laid down as under:
“……...The land in dispute being an agricultural land, such declaration can be given only by a revenue court under the provisions of the Act. It
cannot be disputed that a suit for declaration regarding an agricultural land is to be filed under Section 88 of the Act if a person claims to be tenant or
a co-tenant in the agricultural land in dispute. Section 207 of the Act provides that all suits of the nature specified in the third schedule shall be heard
and determined by a revenue court and no other court other than a revenue court shall take cognizance of any such suit. In Item 5 of the third
schedule a suit for declaration under Section 88 of the Act has been mentioned. I am also of the view that if the revenue court passes a decree for
declaration in favour of the plaintiff to the effect that she is khatedar-tenant or co-tenant of or any other share in the land in dispute, that court is
equally competent to grant a consequential relief to the effect that the sale deed in question is void and ineffective to the extent of share of the plaintiff
and it is not essential for the plaintiff to file a separate suit thereafter in a civil Court for getting the sale deed cancelled. I am also of the view that if
the revenue court declares the plaintiff- co- tenant of the land in dispute, it is not necessary for her to get the sale deed cancelled as that would be
automatically void and ineffective to the extent of share of the plaintiff.â€
In the case of Mohan Lal, for the requirement of getting a document cancelled as void it has been laid down as under:
“It is well established that in order to determine the true nature of the relief claimed in a suit, the pith and substance, and not the form in which the
relief may be couched has to be considered. On considering the pleadings in the plaint in the present case carefully and applying the doctrine of pith
and substance of the pleadings, I have come to the conclusion that the relief claimed in the suit really amounted to a relief for a declaration that the
plaintiff had half share in the land in question. The suit in the present case cannot be said to be one for mere avoidance of the document. It may be
noticed that according to the pleadings the document cannot be set aside, unless a clear finding is given on the first issue namely whether the plaintiff
has half share in the land in question and not one-third as mentioned in the document itself. It cannot be said in the present case that unless the deed is
cancelled the Revenue Court cannot give a declaration as to the extent of the share of the appellant in the land in question. In the Allahabad case:
Babar Singh vs. Baldeo Prasad Singh referred to above it was observed that unless a proper court cancelled the deed the Revenue Court could not
ignore its effect and could not give a declaration as to the right of the appellant. That situation, however, does not exist in the present case. A
reference to Section 88 of the Rajasthan Tenancy Act No. 3 of 1955 read with Item 5, Third Schedule appended thereto would clearly show that any
person claiming to be a tenant may sue for a declaration that he is a tenant or for declaration of his share in such joint tenancy. Consequently the
present suit clearly lay before a Revenue Court. The plaintiff has expressly indicated in the plaint that he intended that the Court should grant a
declaration that he has got half share in the land. In this view of the matter, the suit should have been filed in the Revenue Court.â€
The Full Bench of this Court in the case of Badri Lal (supra) after referring to the provisions of Section 242 of the Tenancy Act also, while holding
that the suit based on easementary right was triable by civil court, pertaining to the pleadings of the matter laid down as under:
“7. For the purpose of seeing whether the suit is exclusively triable by a revenue court and the civil court has no jurisdiction to try the same,
averments in the plaint are carefully to be looked into. All the allegations made in the plaint should be taken into consideration and not the reliefs alone
claimed in the plaint for the purpose of determining the question of jurisdiction. The substance of the plaint provides a good guide to find out the true
nature of the object of the suit.:â€
Coming to the judgments cited by learned counsel for the respondents, it would be noticed that in the case of Shyam Kumar (supra), wherein, the
allegations were that the defendant purported to be the power of attorney holder of plaintiff executed the sale deed of the land pertaining to plaintiff,
whereas in fact he was not appointed by the plaintiff nor he was holder of power of attorney, the plaintiff claimed the sale deed as void and
inoperative and sought cancellation, the Court laid down as under:
“The question of jurisdiction namely, whether a suit is exclusively triable by a revenue court or a Civil Court can take cognizance of it has to be
decided on the allegations made in the plaint. It is the substance of the plaint and the true nature of the suit that is to be seen to determine the question
of jurisdiction. The cause of action in the present case is the execution of the sale-deeds by a third party purporting to act as a special attorney of the
plaintiffs. It is this cause of action which has forced the plaintiffs to file the suit; the relief therefore that is mainly sought is a relief of cancellation of
the sale -deeds, and such a relief cannot obviously be given by a revenue court but can only be given by a Civil Court. The relief of perpetual
injunction and others are incidental to the main relief, and will follow as a consequence to the finding of the Court with regard to the relief of
cancellation of the sale -deeds or otherwise. Therefore, the suit as framed in one which is triable by the Civil Court and does not come within the
provisions of S. 207 of the Rajasthan Tenancy Act.â€
In the case of Bhopal Singh, which was a case of sale deed executed by father and allegations made were that the transfer was without any legal
necessity, this Court, after noticing the law laid down by Hon’ble Supreme Court in Raghubanchamani vs. Ambica Prasad : AIR 1971 SC 776,
wherein, it was held that alienation by the Manager of the joint Hindu family even without legal necessity is voidable and not void, laid down as under:
“It, therefore, follows that the main relief which the plaintiff has asked for in the suit is of cancellation of the sale-deed executed by his father on
August 18, 1965 and the incidental relief regarding restoration of possession will follow as a consequence to the finding of the Civil Court relating to
the relief of the cancellation of the sale-deed. In these circumstances, in my opinion, the learned Civil Judge while allowing the application for
amendment of the plaint by deleting paragraph 7 of the plaint, rightly held that the suit of the plaintiff is cognizable by a Civil Court.â€
In the case of Gurucharan Singh (supra), the Division Bench in a case where allegation made in the plaint was that the decree, which was subject
matter of the suit was fradulant and against the tenancy rights of the plaintiff, laid down that the suit was cognizable by civil court and not by revenue
court. In the case of Sukhpal Singh (supra) this Court again after referring to the various judgments on the issue laid down as under:
“(25). If in the light of the above, the instance case is examined, it is abundantly clear that if the facts stated, the grounds and allegations and the
averments made therein are taken into consideration in totality, it is abundantly clear in sum and substance that the respondent No.3 plaintiff has made
a grievance that the Will, on the basis of which the present petitioner-defendant has got the mutation, is void being a forged and fabricated document
as it had never been executed by their father Ishar Singh. If the Revenue Court comes to the conclusion that it was never executed by late (Shri)
Ishwar Singh, it is not necessary for the Revenue Court to declare it a nullity as it can be simply ignored and in that situation, by ignoring the said Will,
the other reliefs claimed by the respondent No.3 plaintiff can be granted by the Revenue Court as according to the averments in the plaint, neither the
body nor mind of Sh. Ishar Singh accompanied the alleged Will and the said instrument, being non est, is just to be ignored. Moreover, this petition has
arisen only against an order passed on the application filed by the petitioner-defendant under Order 7 rule 11 C.P.C. and it is settled law that such an
application cannot be entertained and allowed where the validity of a particular document is under challenge.â€
Rest of the judgments, cited by learned counsel for the respondent do not have much relevance to the present case. From what has been noticed
hereinbefore, it can be safely concluded that if the allegation in the plaint/substance of the allegations in the plaint allege the instrument to be void and
no cancellation is required and without seeking such cancellation the relief of declaration pertaining to tenancy rights with regard to the agricultural
land in question can be obtained by the plaintiff, only the revenue courts would have jurisdiction to deal with the subject matter of the suit and
consequently the jurisdiction of civil courts would be barred. However, if the allegations made in the plaint make out a case of document being
voidable, relief of cancellation of such a voidable document can only be granted by civil court and irrespective of the fact that the instrument pertains
to agricultural land, the suit would not be barred under Section 207 of the Tenancy Act. Therefore, the trial court in each case, where a issue in this
regard is raised, based on the stage of the suit i.e. either based on the plaint averments or the evidence available on record would have to come to a
conclusion as to whether the facts as alleged, if established or as established in a case where evidence has been led makes the instrument void or
voidable and decide accordingly.
The fact that even in a case of a void document a relief of declaration in this regard has been sought, as laid down in the case of Rukmani (supra)
once the declaration about status of Tenancy rights is granted, the consequential relief to the effect that the instrument in question is void and
ineffective can always be granted by the revenue court. As to which instrument can be said to be void and voidable, the said aspect was discussed
way back by this Court in the case of Sukhlal & Ors. vs. Devilal & Ors. : AIR 1954 Rajasthan 170, wherein, the difference between a suit for
cancellation of a document and suit for declaration that the instrument is not binding on the plaintiff was brought out in the following words:
“When the plaintiff seeks to establish a title in himself and cannot establish that title without removing an insuperable obstacle such as a decree or a
deed to which he has been a party or by which he is otherwise bound then quite clearly he must get that decree or deed cancelled or declared void in
toto and his suit is in substance a suit for the cancellation of the decree or deed notwithstanding the fact that the suit may have been framed as a suit
for declaration. On the other hand, when the plaintiff is seeking to establish a title and finds himself threatened by a decree or a transaction between
third parties, he is not in a position to get that decree or deed cancelled in toto. The proper remedy in such a case is to get a declaration that the
decree or deed is invalid so far as himself is concerned and, therefore, he may sue for a declaration to that effect and not for cancellation of the
decree or the deed.â€
The Hon’ble Supreme Court in the case of Suhrid Singh vs. Randhir Singh & Ors. : (2010) 12 SCC 112, with regard to the issue pertaining to
nature of the declaration required to be sought pertaining to the instruments, laid down as under:
“Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed,
he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for
cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two
brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand,
if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/
illegal and he is not bound by it.
In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If A, the
executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If B, who is a
non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed
court fee of Rs. 19.50 under Article 17 (iii) of Second Schedule of the Act. But if B, a non- executant, is not in possession, and he seeks not only a
declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under
Section 7(iv) (c) of the Act.â€
In view of the above discussion, the present case needs to be examined wherein, as noticed hereinbefore, the declaration has been sought in the plaint
seeking cancellation of sale deed to the extent of share of the plaintiff on account of the fact that the suit property being ancestral joint Hindu property
the transfer was made without any reason, basis or necessity.
On the said aspect, while the judgment in the case of Sangram Singh (supra) laid down that such a sale would be void and, therefore, the suit would be
triable by revenue court only, in later judgment in the case of Bhopal Singh (supra) it was laid down that such a sale would be voidable and not void.
For the said proposition, reliance was placed on the judgment of Hon’ble Supreme Court in the case of Raghubanchmani (supra) and a unreported
judgment in the case of Longram vs. Jaipal Singh : Civil Revision Petition No.153/1971 decided on 29/7/1971, taking different view was held as not a
good law in view of the Supreme Court judgment, for the same reasons the judgment in the case of Sangram Singh (supra) also cannot be said to be a
good law though the judgment in the case of Sangram Singh was not cited in the case of Bhopal Singh (supra). Relevant portion of the judgment
dealing with the said aspect reads as under:
“13. In view of the decision in Raghubanchamani's case AIR 1971 SC 776, the sale-deed made by the plaintiff's father, who is defendant No. 5, in
favour of the defendants Nos. 1 and 4 (petitioners) is voidable as according to the plaintiff it was without legal necessity and under Section 31(1) of
the Specific Relief Act, when the plaintiff has reasonable apprehension that the sale-deed if left outstanding, may cause him serious injury, it became
necessary for him to have it adjudged, void or voidable. The cancellation of the sale-deed, being the main relief in the suit, can only be granted by a
Civil Court. Learned counsel for the petitioners cannot, in my opinion, derive any benefit from the decision in Jagansingh's case 1973 Raj LW 674.
In Longram's case Civil Revn. No. 153 of 1971, D/- 29-7- 1971 Raj) (supra) the learned Judge took the view that the sale by the father of undivided
coparcenary property is void in the absence of the legal necessity and the prayer for cancellation of the sale-deed is not very material, and further that
the suit was essentially for possession of agricultural land. The sale by the father of the plaintiff in the case before me is voidable according to the
decision in Raghubanchamani's case AIR 1971 SC 776. I regret my inability to agree with the view taken in Longram's case and it is no more a good
law after Raghubanchamani's case.â€
In view of the above, the law laid down in the case of Bhopal Singh (supra) holding the instrument of the present nature as voidable, suit apparently is
maintainable before the civil court and in view thereof the order passed by the trial court cannot be faulted. In view of the above discussion, there is
no substance in the revision petition and the same is, therefore, dismissed.
